Pearls and Irritations

In the days before police forces, the State in the English speaking world relied on citizens to report serious crimes, called “felonies”. The posse in the Western movies is a reflection of the “hue and cry” that citizens were expected to raise. Failing to report a felony was itself a crime, called “misprision of felony”. The crime, according to Lord Denning in the 1962 House of Lords case, Sykes v The Director of Public Prosecutions, was more than 700 years old. It is so old that the word “misprision”, meaning “concealment” has disappeared from everyday use.

In the 1960s, Law Reform Commissions recommended its abolition, because of the establishment of police forces, because the distinction between a “felony” and a “misdemeanour” was causing problems in the administration of the law, and because most citizens felt a moral obligation to report serious crimes anyway.

Misprision of felony was abolished in the United Kingdom in 1967, and all Australian States followed suit. New South Wales abolished it in 1990, and replaced it with a statutory form in S.316 of the Crimes Act 1900 (NSW), making it an offence not to report a “serious” crime (one with a penalty of 5 years or more in prison) unless there was a reasonable excuse. The other States replaced it with a provision that made the concealment of a crime an offence only if the concealment was in return for some gain.

All States have mandatory welfare reporting laws regarding “children at risk”, but they only apply while the victims are under age. Some States, such as Victoria, do not include clergy amongst those required to report. The mandatory reporting laws in all States do not apply to “historic abuse”, that is, where the victim is now an adult. Figures produced by the Archdiocese of Melbourne indicate that historic abuse represents more than 99% of all complaints.

In 1999, the New South Wales Law Reform Commission recommended that S.316 of the NSW Crimes Act be abolished for a number of reasons, but one of the most significant was: “The Commission disapproves of substituting a legal duty which is enforced by a criminal sanction for a moral one unless there are overall substantial benefits to society in doing so.” It must come as a surprise to the Law Reform Commissioners that the Vatican did not think that the Church had any such moral duty when it came to Catholic priests sexually assaulting children. Its imposition of “pontifical secrecy” on any allegations and investigations under canon law effectively prevented any such reporting to the police. The effectiveness of that prohibition can be seen from the evidence given at the Victorian Parliamentary Inquiry that not one of the 611 cases of sexual assault between 1996 and 2012 by priests in Victoria was reported by the Church to the police. Pontifical secrecy did not prevent the victims reporting the matter, but so far as the Church was concerned, it had no moral duty to do so. Indeed statements by five senior Cardinals from 1997 to 2002, Castrillón, Bertone, Billé, Rodriguez and Herranz, stated unequivocally that it was immoral or wrong for a bishop to report a paedophile priest to the police, two of them saying that bishops should be prepared to go to jail rather than do that. According to Church teaching, priests were special people because they had been “ontologically” changed by God at ordination, and the relationship between a bishop and a priest was like that of a father and son.

The Irish Parliament abolished misprision of felony in July 1997, but after the Murphy Commission reports into the cover up of child sex abuse in the Archdiocese of Dublin and the Diocese of Cloyne, it was revived in 2012, in a form similar to S.316 of the New South Wales Crimes Act 1900 so far as children and “vulnerable” people were concerned. It had to include the latter because in 2010, Pope Benedict XVI had extended pontifical secrecy to apply to allegations about priests sexually assaulting those who “habitually lack the use of reason”. The Victorian Parliamentary Report, “Betrayal of Trust” recommended similar changes to the Victorian Crimes Act 1958, a move that was also supported by the Victorian Church.

Such a change to the civil law will assist the Catholic Church with a peculiar problem arising from canon law. In 1996 and 2002, the Irish and American bishops approached the Vatican for permission to be able to report clergy child sex crimes to the police, irrespective of whether or not the civil law required it. The Vatican refused. It was only willing to agree to such a dispensation where there was a civil law requiring reporting. In other words, it would allow just enough reporting to keep bishops out of jail. In 2002, this dispensation was granted to the United States, but it was only in 2010 that it was extended to the rest of the world. Pontifical secrecy still applies where there is no duty to report under the civil law. Such civil legislation will allow bishops to report to the police without coming into conflict with canon law.

Pope Francis is the absolute monarch of the Catholic Church. He can issue a decree at any time outlawing pontifical secrecy for any canonical crimes that are also crimes under civil law. Indeed, such a decree would be in line with some 1400 years of Church tradition, requiring such priests to be handed over to the civil authorities, a tradition which ended with the cover up being ordered by the Pope Pius XI with Crimen Sollicitationis in 1922: see Flogging a Dead Horse at the Royal Commission on Child Abuse: https://johnmenadue.com/blog/?p=980  If Pope Francis fails to do that, the only inference will be that the Catholic Church still wants to hide clergy sex crimes against children wherever it can get away with it.

Kieran Tapsell is a retired solicitor and barrister. He has degrees in law and theology.

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