The “Nuremberg defence” takes its name from the claim by Nazi officials at the Nuremberg War Crimes Tribunal that they should be acquitted because they were following “superior orders”. In one of the most significant judgments in international law, the Nuremberg Tribunal held that following superior orders in the case of crimes against humanity is no defence, although it may be a factor in determining the appropriate punishment.
Justice Robert Jackson, the chief prosecutor, wanted to make heads of state accountable for the orders they gave, and for what they allowed to happen under their watch. Historically, he pointed out, accountability had been the least where responsibility had been the greatest. Jackson accepted that responsibility was greatest where the power was strongest, and this is the stance now taken by the International Criminal Court.
Bishop Ronald Mulkearns, both before and after his death on 4 April 2016, has been the object of sustained criticism for the cover up of clergy sexual crimes against children that occurred during his time as bishop of Ballarat from 1971 to 1997. His successors in the Ballarat diocese, Bishops Connors and Bird accused him of “effectively facilitating child sexual abuse” and making “terrible mistakes”.
On Good Friday, former Bishop Geoffrey Robinson said on ABC radio that in the 1980s he considered Mulkearns to be one of “the most forward looking and caring bishops”, and he found it difficult to understand how he had acted as he did.
Ronald Mulkearns was a canon lawyer with a doctorate in canon law, and was one of the founders of the Canon Law Society of Australia and New Zealand, and the first chairman of the Special Issues Committee set up by the Australian Catholic Bishops Conference to find a better way of dealing with child sexual abuse by priests and religious. Anyone with that kind of background takes his canon law seriously. In 1971, when he was consecrated bishop, he had taken an oath to obey all ecclesiastical laws.
The Victorian Parliamentary Inquiry Report concluded that Mulkearns had dealt with complaints of sexual abuse in the strictest confidentiality, and had tried to “quarantine the information as far as possible”, in accordance with the policy laid down by canon law.
Bishop Robinson conceded in his ABC interview that the protocol that he created in 1996, Towards Healing, (which required reporting to the police) was not supported by the Vatican because “it didn’t follow their rules” and was “outside the laws of the Church.” The Australian bishops under Geoffrey Robinson were only prepared to defy canon law in 1996, the year before Ronald Mulkearns’ retirement. But by then the damage in Ballarat had already been done.
Mulkearns real mistake was in not breaking his consecration oath to obey canon law in which was written the “terrible mistakes” identified by Bishop Bird. Mulkearns should have defied canon law, but, as a canon lawyer, he would have known that Pope Paul VI’s 1974 Instruction Secreta Continere purported to take away his conscience where a matter, such as clergy sexual abuse of children, was covered by the pontifical secret. Keeping the secret was his conscience. In 1996, Mulkearns was interviewed on the ABC Four Corners program and stated: “I believed I acted in accordance with my conscience.”
In that same year, and one year before Mulkearns’ retirement, Fr Brian Lucas in a paper given to the Canon Law Society of Australia and New Zealand told his audience that there may be cases so sensitive, that it is in the best interests of the parties and of the Church that canonical proceedings not be commenced, and that “documents not be created in the first place.” Such a stance was justified under canon law if it was necessary to avoid scandal and the subsequent loss of faith. The most likely inference one can draw from Mulkearns’ failure to keep records was the same as the Royal Commission found with Fr Lucas: a desire to protect the Church from “scandal”, or to protect priests, or both.
Canon law prior to 2001 made it virtually impossible for a bishop to dismiss a paedophile priest, and it forbade him to report these crimes to the police. The Murphy Commission in Ireland concluded that “the structures and rules of the Catholic Church facilitated the cover up” of sexual abuse in the Archdiocese of Dublin. The same can be said of the diocese of Ballarat under Bishop Mulkearns.
Bishop Geoffrey Robinson told the Royal Commission: “However great the faults of the Australian bishops have been over the last thirty years, it still remains true that the major obstacle to a better response from the Church has been the Vatican.” That statement is still true because of the refusal of Pope Francis to reform canon law as it relates to child sexual abuse by clerics.
Which brings us back to Justice Robert Jackson and Nuremberg. If you read the submissions made by the Australian Church at the Victorian Parliamentary Inquiry and to the current Royal Commission, there is hardly a whisper about how canon law affected the behaviour of bishops. It seems that the Australian Church wants to take us back to the days before Nuremburg where accountability had been the least where responsibility had been the greatest: blame the foot soldiers and not the generals.
Following superior orders is not a defence, but in the modern world, responsibility is the greatest where power is strongest. And that power is in the Vatican and the seven popes who, since 1922, established, expanded and maintained a system of cover up under canon law.
Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (2014 ATF Press)