KIERAN TAPSELL. “Catastrophic institutional failure” can be fixed.

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse spent five years interviewing over 8,000 survivors, their abusers and personnel from institutions that had covered up the abuse. The Commission found that 61.8% of all survivors within religious institutions had been under the care of the Catholic Church. The Commission’s 17 volume Final Report, released on 15 Dec 2017, made hundreds of recommendations for change in structures, practices and internal laws of institutions. Many of the recommendations addressed to the church involved changes to canon law.

Two of these recommendations received massive media attention: that celibacy no longer be obligatory and that civil reporting laws should not provide an exemption in the case of confession. There has been some pushback against these recommendations because they involve overturning long traditions in the church. But many other recommendations had more to do with church law and practice, and could be more easily implemented, if church leadership is willing to take up this challenge. 

Recommendation 16.10: Abolish the pontifical secret

One important recommendation challenges the church to return to its long tradition from the 4th to the 19th century of requiring clergy child sexual abusers to be handed over to the civil authorities for punishment. The decrees of four church councils and three popes to this effect were abrogated by the 1917 Code of Canon Law, and in 1922, and thereafter canon law imposed the strictest secrecy over such matters.

One of the most significant recommendations is that the pontifical secret should not apply “to any aspect of allegations or canonical disciplinary processes relating to child sexual abuse” (Rec. 16.10). The secret of the Holy Office was imposed in 1922 by Pope Pius XI on all information about the sexual abuse of minors, and that was extended in 1974 by Pope Paul VI’s Secreta Continere under which the pontifical secret covered even the allegation. It provided no exceptions for reporting to the police, and told the bishops that there was no room for the exercise of conscience in the matter. The Commission found that “the Holy See considered that bishops were not free to report allegations of child sexual abuse by clergy to civil authorities before and during the 1990s and early 2000s.”

The pontifical secret is still imposed by Art. 30 of Sacramentorum Sanctitatis Tutela of Pope John Paul II, as revised by Pope Benedict XVI in 2010. In 2002, the Holy See granted a dispensation to the United States to allow reporting where the civil law required it, and that dispensation was extended to the rest of the world in 2010. The Commission found that the pontifical secret still applies where there are no applicable civil reporting laws. The Italian and Polish Catholic Bishops conferences seem to agree, because they announced in 2014 and 2015 that their bishops would not be reporting these crimes to the police because their countries’ laws did not require it.

The recommendation to abolish the pontifical secret over child sexual abuse is in line with similar requests in 2014 by the United Nations’ human rights committees on the rights of the child and against torture. Pope Francis in his formal response of 24 Sept 2014 rejected the request.

Recommendation 16.55 – A more balanced standard of proof

An equally important factor in the church’s failure to protect children is the dysfunctional nature of its disciplinary system. The Commission found that it is slow, “cumbersome, complex and confusing” and that “the Vatican’s approach to child sexual abuse by clergy was protective of the offender”.  The Australian Church authorities were reluctant to use it for these reasons. The result was that more children were abused than would otherwise have been had the abusers been quickly weeded out.

Civil law prosecutions of abusive priests may fail because the criminal standard in Anglo/American law is proof beyond reasonable doubt. The church disciplinary system may have to deal with an acquitted priest who could still be a danger to children, but the standard of proof required for dismissal is “moral certainty”, the equivalent of proof beyond reasonable doubt. A practical illustration of the problem is the case of a Sydney priest who was acquitted of a criminal offence of sexual assault, and was then unsurprisingly acquitted by a canonical court over the same facts. The Commission found it was inappropriate to have such a high standard of proof for disciplinary matters, and recommended that canon law be changed to allow a test based on the balance of probabilities.

Recommendations 16.11 and 16.56 – Real zero tolerance

The Commission criticized the “pastoral approach” embodied in Crimen Sollicitationis and Canon 1341 (for clerics) and Canon 697 (for religious brothers and sisters) of the 1983 Code which required superiors to rebuke, warn or try to cure those against whom allegations are made before subjecting them to a canonical trial.

The Commission said that the “pastoral approach” had a negative effect in two ways on the church’s response: It encouraged the belief that child sexual abuse was a moral failure “rather than a crime that should be reported to the police”; and it inhibited canonical action for dismissal because the pastoral approach was a precondition to instituting it. The Commission found that the “pastoral approach” had led to “catastrophic institutional failure” in dealing with child sexual abuse and recommended abolition of the precondition.

Another example of the “pastoral approach” can be found in the practice of the Congregation for the Doctrine of the Faith to allow priests who admitted abusing children to “live a life of prayer and penance” rather than being dismissed. Pope Francis has claimed that he and Benedict XVI practiced “zero tolerance” for child sexual abuse. Zero tolerance in a professional context invariably means dismissal. The figures that Francis presented to the United Nations in 2014 demonstrated that only one quarter of all priests found to have sexually abused children had been dismissed. That’s 75 percent tolerance, not zero. The Commission has recommended real zero tolerance, the dismissal in all cases of child sexual abuse.

Recommendation 16.12 – No statute of limitations

Prior to the 1983 Code, there was no limitation period for canonical trials for child sexual abuse. Pope John Paul II in 1983 introduced a five year limitation period, which meant that if a 10-year-old child was abused and did not complain by the age of 15, the canonical crime simply disappeared and no action for dismissal could be taken. A study in 2000 by the Australian Catholic Bishops Conference of 402 cases of sexual abuse of minors indicated that the limitation period had expired in 96.77 percent of them. The Holy See extended the period in 2001 to 10 years from the age of minority of the victim and in 2010 to 20 years, plus a power to extend it beyond that. The Commission found that the average time in which the survivors told anyone of the abuse was 33 years. It recommended that the church return to its pre-1983 policy of no limitation period, and that such a change should operate retrospectively.

Recommendation 16.13 – Amend the ‘imputability’ test

Another discouragement for bishops wishing to dismiss a priest was the “imputability” defence in Canon 1321. Imputability means that the accused was responsible for his actions. Under the 1917 Code, imputability was assumed unless it was disproved by “moral certainty”.  Pope John Paul II watered this down in his 1983 Code, whereby imputability was assumed “unless it is otherwise apparent”,  thus creating a Catch-22 defence for abusers: a cleric cannot be dismissed for pedophilia because he is a pedophile. Two serial Irish pedophiles had their dismissals by Dublin canonical courts overturned by Rome because they had been diagnosed as pedophiles. The Commission recommended that the ‘imputability’ test in canon law be amended “so that a diagnosis of pedophilia is not relevant to the prosecution of or penalty for a canonical offence relating to child sexual abuse”.

Recommendations 16.15 and 16.16 – Keep tribunals local and transparent

The Commission recommended the setting up of an Australian canonical tribunal to hear complaints against clergy, with Rome being involved only as an appellate court (Rec. 16.15). It also recommended that Vatican congregations and courts publish reasons for their disciplinary decisions (Rec. 16.16).

Recommendations 7.8, 7.10 and 33 – Mandatory reporting laws

On the civil law front, the Commission recommended that state supervisory bodies be set up to deal with “reportable conduct” which would then allow that body to supervise any disciplinary proceedings instigated against the accused. It also recommended that all Australian states and territories have comprehensive mandatory reporting laws for child abuse in institutions.

The Royal Commission found that the church was seriously out of step with community standards in dealing with child sexual abuse, and that it suffered a “catastrophic failure of leadership”.  If Pope Francis does not accept these recommendations, the reaction may very well be the same as that of the Irish Prime Minister, Enda Kenny, in a speech to Parliament in 2011 after the publication of the Cloyne Report, an Irish government report on clerical sex abuse:

Cardinal Josef Ratzinger said: ‘Standards of conduct appropriate to civil society or the workings of a democracy cannot be purely and simply applied to the Church’.  As the Holy See prepares its considered response to the Cloyne Report, as Taoiseach, I am making it absolutely clear that when it comes to the protection of the children of this State, the standards of conduct which the Church deems appropriate to itself, cannot and will not, be applied to the workings of democracy and civil society in this republic. Not purely, or simply or otherwise. Children… first.

Kieran Tapsell is a retired civil lawyer and the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse and of a submission to the Royal Commission into Institutional Responses to Child Sexual Abuse: Canon Law, A Systemic Factor in Child Sexual Abuse in the Catholic Church. He was also a member of the canon law panel before the Australian Royal Commission 9 Feb 2017.

First published in The National Catholic Reporter, 9 Jan 2018.





Kieran Tapsell is a retired civil lawyer, author and translator.

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6 Responses to KIERAN TAPSELL. “Catastrophic institutional failure” can be fixed.

  1. Kieran Tapsell says:

    Bill, it is common enough for a solicitor to be acquitted of embezzlement, or not charged (perhaps because the jury could not be satisfied beyond reasonable doubt that he intended to steal), and yet be permanently struck off on the same facts for professional misconduct. The facts are the same, and this is the point the Commission was making. The criminal law is there to punish and therefore requires the stricter standard of proof. Disciplinary law is there to protect the public and for that reason the lesser standard of proof is required. The Commission is simply saying that clergy should be judged professionally by the same standards that apply to doctors, lawyers, teachers etc, and to do otherwise is another example of the clericalism that Pope Francis condemns but does nothing about within his own institution.

  2. Kieran Tapsell says:

    Thank you, Bill, for your comment.
    (a) The Pontifical Secret.
    The pontifical secret is only “effectively extinguished” in New South Wales. Victoria is similar but has no requirement to report where the victim does not wish it. The pontifical secret therefore applies in those circumstances. No other State has a reporting requirement for historical abuse, that is where the victim is currently over the age of 18 but was abused as a minor – if the Victorian figures are any guide, that represents 99% of all complaints. Where the victim is still a minor at the time of the complaint, the pontifical secret is only “extinguished” where clergy are listed among mandatory reporters in the child welfare legislation. Bishops and their canonical investigators are not mandatory reporters in Queensland, Western Australia, Tasmania, A.C.T. I agree that if all States and Territories adopt the recommendations of the Royal Commission, the pontifical secret will mostly be extinguished in Australia. I say “mostly”, because the Vatican has indicated that the pontifical secret applies (and will not be dispensed with) even where there are reporting laws, where further allegations are uncovered during canonical investigations (as happened in the Nestor case study). Many countries do not have comprehensive reporting laws, and the pontifical secret will continue the cover up of clergy sexual abuse in those places.
    (b) Standard of Proof
    I think you misunderstand the civil law on this. The standard of proof for disciplinary matters is the balance of probabilities. At page 717 of Book 2, Volume 16, the Commission stated: “Under canon law, the standard of proof required for imposing a penalty against a priest or religious is ‘moral certainty’, which is a standard similar to beyond reasonable doubt. This standard is higher than that applied in the Anglican and Uniting churches, and also for disciplining practitioners in professions, such as doctors and teachers. They apply the balance of probabilities having regard to the principles in Briginshaw v Briginshaw.”
    (c) Zero tolerance:
    Zero tolerance means there is no wiggle room. The Church allows no wiggle room in its zero-tolerance policy on priests who wish to marry, and who have committed no crime. If they wish to marry in the Church, they must be laicised and not simply had restrictions put on their ministry. Commissioner Atkinson notes in one of the panel hearings that survivors of sexual abuse found it particularly galling that abuser priests and religious were not dismissed. Permanent dismissal is routine for solicitors who steal trust funds and doctors who sexually abuse sedated patients and school teachers who sexually abuse children. Why should it be any different for clergy who have abused children? Dismissal does not exclude pastoral outreach to offenders.

    • Bill Burke says:

      Thank you for your several comments.
      It is disappointing that some/many jurisdictions in Australia have not enacted mandatory reporting laws. But, that they could, and their legislative actions would remove the Pontifical secret requirements is a point we both seem to agree on.
      I was aware of Civil Law and its usage of Balance of Probabilities. In an extended discussion I would have argued the Commission erred in seeking its application in this area. You and the Commission appear to want to classify dismissal from orders as simply a disciplinary matter, while there is a case to argue that the grounds for dismissal are based on criminal actions and hence the burden of proof of those criminal charges should have a commensurate standard of proof.
      I do not accept your example of priests wishing to marry as useful to this discussion. Our key difference appears to be on what constitutes “dismissal” Does it necessarily involve dismissal from orders or can it be understood as dismissal from ministry? Again, we will have to accept ongoing disagreement.

  3. Bill Burke says:

    I applaud the scholarship and insights you bring to bear in “Potiphar’s Wife”, the substantial contribution you provided to the Royal Commission and your ongoing advocacy of related concerns. However, I would offer an alternative view to three issues raised in your current article.
    (a) The Pontifical Secret.
    You acknowledge the 2010 decision dispenses the obligation of secrecy in all parts of the world that have mandatory reporting. This has two obvious consequences. In countries, such as Australia, the Pontifical Secret as it applies to child sexual abuse is effectively extinguished: Moreover, that same decision has given power to any legislature to continue this process of eradication. Whenever and wherever mandatory reporting is enacted then, simultaneously, the obligations of the secret are withdrawn.
    This progress may not be enough for you. But it is no longer a blanket obligation able to collude in hiding perpetrators and their protectors. It is firmly in the hands of local legislatures to render it impotent and practically obsolete.
    (b) 16.55: A more balanced standard of proof.
    The Commission’s discussion of this recommendation was disappointing and unconvincing. A simple Pub Test would highlight the problematic nature of the recommendation.
    Can you imagine any Australian professional association endorsing procedures for lifelong de-registration and prohibition from any form of practice of an errant member, determined by a finding based on a balance of probabilities instead of the more rigorous beyond reasonable doubt criteria? The most likely reaction would be a shrill chorus declaiming a lack of natural justice and a rapid dumping of such a proposal. And so to this recommendation.
    (c): Real zero tolerance
    Your understanding of zero tolerance is succinctly stated and seems to exclude any wriggle room. I see zero tolerance as never returning an offender to a position of ministry.
    The availability of electronic monitoring devices and, in particular cases, the alternative of chemical castration encourages me to be believe that pastoral outreach to offenders is not inconsistent with protecting the vulnerable.
    With these qualifications stated, I fully endorse your discussion of Recommendations 16.12, 13, 15,16 and the cluster of recommendations pertaining to mandatory reporting.

  4. Rosemary O'Grady says:

    Mandatory Reporting – particularly if it is characterised as a ‘civil’ law issue – must be implemented accompanied by penalties for failure to comply.
    Advocates for Mandatory Reporting (‘MR”) have been + appealing for the introduction of these regimes for at least 40+ years within my own, personal experience. The change – one can not call it an innovation – cannot occur without committment by authorities.
    I have a file still in my possession soon to be deposited in archives, containing proof (correspondence) of non-feasance by Police in WA in the 1990s – a not unusual occurrence but one hard to pin-down in the absence of sanctions/directions, even, by authorities.
    I consider that it is a long-game case of non-involvement by persons who, as Clive Stafford Smith (Reprieve) has said are too often the wrong people for/in the job.

  5. Geraldine.Doogue says:

    Very helpful piece Kieran and adds real context. Geraldine Doogue

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