Kieran Tapsell. The Trickle-down Effect in Toowoomba

Kieran Tapsell. The Trickle-down Effect in Toowoomba

Feb 27, 2014

Cardinal Francis George, the former President of the United States Bishops Conference has been described as one of the Catholic Church’s most ‘formidable intellectuals’. In the 2003 Ave Maria Law Review he wrote an article entitled, “Law and Culture”, in which he discusses the famous U.S. Supreme Court case of Brown v The Board of Education, which ended legal segregation in the United States. He pointed out that law, whether just or unjust, acts as a teacher. The segregation laws, he wrote, were a reflection of the culture at the time when they were passed, but their very existence deepened and entrenched that culture.

Cardinal George is right. We can see that same connection between law and culture in the reported increase of gay bashing in the Soviet Union after Putin’s anti-homosexual laws. Those laws did not say that people could bash homosexuals, but that is the sort of thing that happens when you have a law which damns them as paedophiles. The philosophy behind the law trickles down, deepening and entrenching the culture that gave rise to the law in the first place.

At the recent Royal Commission hearing into the Toowoomba diocese, we can see the same ‘trickle down’ effect of canon law on the behaviour of Catholic education staff. Canon law since 1922 had prohibited bishops from reporting to the police any information from canonical inquiries into allegations of the sexual abuse of children by priests. This prohibition did not apply when allegations were made against a lay teacher at a Catholic school. There was nothing in canon law to prevent a bishop reporting such information to the police, let alone the headmaster. The Royal Commission is currently inquiring into the case of a headmaster of a Catholic school in Toowoomba who failed to report the sexual assaults on children by one of the lay teachers. The bishop knew nothing about the allegations until the teacher’s arrest.

There is in any organization a “trickle down” effect where those in the lower ranks of the organisation will look to the behaviour of those higher up for guidance. But in the case of the Catholic Church, there is the added layer of canon law, teaching everyone in the Church on how to behave in in the case of the sexual abuse of children. In 1992, the Canadian canon lawyer, Francis Morrissey wrote in an article that canon law served as a guide for dealing with lay employees, while acknowledging that it did not strictly apply to them. Canon law, coming from the Pope, reflected the right thing to do.

Victoria is a good example of this trickle-down effect from canon law. The Melbourne Archdiocese had its own response that had no provision for reporting to the police, other than to say that it would encourage the victims to do so. The other three dioceses were covered by Towards Healing which required reporting where the civil law required it. Victoria had abolished misprision of felony in 1981, and the mandatory welfare reporting laws, that is, for children currently at risk, did not apply to clergy. There was no legal obligation on senior clergy to report child sexual abuse of any kind. The end result is that the Victorian Parliamentary Inquiry found that of the 611 complaints of sexual abuse from 1996 to 2012, some of which related to Catholic lay teachers, none were directly reported by the Church to the police. In the case of offences by clergy, the failure to report was not surprising because canon law prohibited it. But that prohibition did not apply to cases of sexual abuse by lay teachers.

Toowoomba provides an even stronger example. The culture of secrecy imposed by canon law, and motivated by the need to avoid “scandal”, even had an effect in a situation where the headmaster was obliged by the civil law to report such matters to the police, because there were children currently at risk. The headmaster probably knew nothing about canon law, but the culture trickles down from those who do. This did not come from Bishop Bill Morris, who was ‘stunned’ at the dithering that went on about reporting these matters. Morris, dismissed by Pope Benedict, ostensibly for mentioning the possibility of women priests, has been one of the leading lights on dealing with sexual abuse in the Church. Not even he seems to have been able to turn around the cultural juggernaut in his diocese, driven by canon law.

Cardinal George in his article said that the first step to change a culture is to change the law. There is no indication from Pope Francis that he has any intention of changing canon law to outlaw pontifical secrecy in the Church’s inquiries about child sexual abuse amongst the clergy. His delegates at the hearing before the United Nations Committee on the Rights of the Child in Geneva resisted the Committee’s demand that the Church report all complaints of sexual abuse by clergy, irrespective of whether there was a law requiring it or not. Canon law still prohibits the reporting of any allegations of sexual abuse by clergy to the police where there are no civil laws requiring reporting. And, in all States of Australia, except New South Wales, that means in 99% of all complaints of sexual abuse, if the Victorian figures can be applied generally.

The persistent claim by the Church in Australia that “everything has changed” is spin. The cornerstone of the cover up, pontifical secrecy is still writ large in canon law. So long as it is there, in Article 30 of the Graviora Delicta, the culture of secrecy will continue, and will continue to trickle down. You have it on the authority of one of the Church’s most formidable intellectuals.

Kieran Tapsell is a retired lawyer with degrees in Theology and Law. His book, “Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse” is due to be published in May 2014: www.atfpress.com