KIERAN TAPSELL. Secrets and the Royal Commission’s final report.

Media attention has been drawn to the recommendation in the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse that religious confession should not be exempted from civil law requirements to report child sexual abuse. However, of much greater practical significance is the recommendation that the Catholic Church’s pontifical secret should not apply to such abuse.

The media always likes a good stoush when big players, like Church and State, are involved. It is therefore not surprising that the media would concentrate its attention on the recommendation in the Royal Commission’s Final Report that priests should break the secret of confession in the case of child sexual abuse, while paying little attention to a far more relevant recommendation that the Church should abolish the pontifical secret over such crimes.

Both secrets, imposed by canon law, are permanent silences over the matters they cover – confessed sin in the case of the secret of confession and, in the case of the pontifical secret, allegations and information obtained through canonical processes about criminal sexual behaviour by clergy towards children.

The only difference between them is that canon law says that the secret of confession is “inviolable”, whereas in the case of the pontifical secret, the Holy See can grant a dispensation. The Royal Commission discovered that the Holy See was reluctant to grant such a dispensation after the Commission asked for copies of documents relating to the canonical trials of Australian clergy accused of child sexual abuse.

The Commission found that some Australian abusers did use the sacrament of confession as a means of quick forgiveness that made it easier for them to offend again. The role of the secret of confession in covering up that abuse has to be relatively minor compared to the pontifical secret that is still imposed by Art. 30 of Sacramentorum Sanctitatis Tutela.

The secret of confession only arises if the abuser happens to confess the abuse as part of the sacrament. The pontifical secret arises whenever Church officials receive a complaint about clergy sexual abuse of children, and an investigation is commenced as required by canon law. The Commission found that the Australian Church received thousands of such complaints, and they were rarely reported to the civil authorities with the result that more children were abused than would otherwise have occurred.

The Commission’s recital of Church history in its Final Report demonstrates that until the 19th century, and despite some cover ups, the official Church policy as expressed in canon law was that clerics who sexually abused children should be stripped of their clerical status, and then handed over to the civil authorities to be punished according to the civil law at the time.

In the 19th century that started to change. The Commission found: “The Church apparently became less willing to report clergy who sexually abused children to the civil authorities than it had been in earlier centuries, and less willing to dismiss them from the priesthood.” The 1917 Code of Canon Law repealed all papal decrees requiring such clergy to be handed over to the civil authorities, and then in 1922, the Instruction of Pope Pius XI, Crimen Sollicitationis, imposed the secret of the Holy Office on all information about the abuse. The Commission agreed with the opinion of John P. Beal, Professor of Canon Law at the Catholic University of America, that: “it is hard to avoid the conclusion that the overriding motivation underlying the imposition of the secret of the Holy Office, and later the pontifical secret, was to protect the reputation of the Church.”

The Commission stated that the Holy See’s view from 1922 until the early 2000s was that bishops and religious superiors should not report allegations of child sexual abuse to the civil authorities under any circumstances. That position was modified for the United States in 2002 and elsewhere in 2010 to allow reporting where there was a civil law requiring it. The Commission noted, however, that “the text of canon law itself has not yet been amended to explicitly reflect these changes”, and that the position in jurisdictions where there are no comprehensive reporting laws “also remains unclear.”

Despite the lack of clarity in some situations, the Commission found that “aside from the exception for reporting to civil authorities in jurisdictions where there are reporting laws, the pontifical secret currently applies to allegations of child sexual abuse made against clergy, as well as canonical proceedings relating to those allegations.”

It recommended that the Australian Catholic Bishops Conference should “request that the Holy See amend canon law so that the pontifical secret, as outlined in Secreta continere and currently imposed through Sacramentorum sanctitatis tutela, no longer applies to allegations relating to child sexual abuse.”

This recommendation from the Commission is no different to the request to the Holy See made by the United Nations Committees on the Rights of the Child and against Torture in 2014, a request which Pope Francis rejected. It is also no different to the requests made from 1996 onwards by the Irish, Australian, British and United States Bishops Conferences to the Holy See to allow reporting of all allegations of child sexual abuse to the civil authorities, irrespective of whether there are civil reporting laws, requests which have been consistently rejected by the Holy See, the most recent being in 2013 in a response to the Australian Catholic Bishops Conference.

Meanwhile, on 13 December 2017, the English Catholic weekly review, The Tablet, reported that the members of the Pontifical Commission for the Protection of Minors recently “have argued (that) Francis should review the use of (the) ‘pontifical secret’ imposed on the Church’s internal legal handling of abuse matters.”

The Royal Commission has now joined forces with two United Nations Committees, four national Catholic Bishops Conferences and now the Pontifical Commission for the Protection of Minors in acknowledging that the pontifical secret has been, and is, a systemic factor in the continuation of child sexual abuse within the Church.

Pope Francis’s moral authority to speak on matters of climate change, inequality and poverty, about which he can do nothing personally, is seriously undermined while he refuses to lift his pen to change canon law that imposes a cover up of child sexual abuse in the Church.

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 Feb. 9, 2017.

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5 Responses to KIERAN TAPSELL. Secrets and the Royal Commission’s final report.

  1. Rosemary O'Grady says:

    If Canon law conflicts with municipal law the paramount law is municipal law. This is not hard to understand. If adherents of faiths wish to prioritise their faiths’ moral/ethical law – they are free to do so : and face the consequences.
    Or are we to evolve into a style of sub-continental Asian scrapping in which, e.g. a widow’s/widows’ small inheritance is to be contested in our courts because of inconsistency between , say, sharia, and municipal laws? We have a Constitution; flawed as it is, it is modern, and it is our strength, by which all may live, be judged, be equal. The fluttering of clerical feathers we see, unbecomingly, today, must not cause us to lose sight of that.

  2. One more question for everyone – consider it rhetorical.
    Again, here is the term “to protect the reputation of the Church”…but which ‘reputation’, the good name of the Church (surely not anymore – it’s almost lost that one), or the 50% clergy sexual activity, and assorted other forms of malfeasance one? I think we need to add an adjective from now on every time we use the word ‘reputation’.

    • Kieran Tapsell says:

      In further answer to your first question about adult abuse, the recommendation of the Royal Commission is that the pontifical secret not apply to child sexual abuse. Whether the pontifical secret even applies to adult abuse would depend on whether it was a canonical crime or “delict”.

  3. Keiran, please may I ask, respectfully, how do you see the Church changing should this stroke of the pen occur? What changes do you think we would witness as an observer or as a participant Catholic? Would everything become openly exposed? How would it stop offending, including against adults, not mentioned here, such as in this case (https://thewest.com.au/news/religion-and-belief/midland-parish-priest-stands-down-over-inappropriate-behaviour-with-adults-ng-b88694902z) ?

    These might sound like really dumb and obvious questions. However, I ask them because I have now heard, very often, people agreeing with your main point, and repeating it (job well done) but I’m not so sure if people have yet applied it to lived reality, at least in our futuristic imaginings of what might happen, what the Church would look, sound and feel like, should the pen stoke occur.

    Thanks. Stephen

    • Kieran Tapsell says:

      First, the Church would no longer have a law which requires Church officials to cover up allegations and information about child sexual abuse where there are no applicable civil reporting laws. Laws are there to be obeyed, whether we are talking about civil law, canon law, or the dress rules of the local club. Second, there is broad agreement that the cover up of the sexual abuse of children within the Church was caused by a culture of secrecy. The Royal Commission found at p. 709 of Book 2 of Volume 16 of its Final Report that the Church’s secrecy laws – the secret of the Holy Office that became the pontifical secret in 1974 – “reflected and reinforced a cultural mindset that regarded child sexual abuse by clergy and religious as a matter to be dealt with internally, and in secret, rather than be reported to the civil authorities.” The final report at p.55 pointed out that Secreta Continere 1974 states that there is no room for the exercise of private conscience where matters are covered by the pontifical secret. In other words, even if a bishop felt he should in conscience report an allegation to the police where there was no applicable civil reporting law, canon law tells him that he cannot follow his conscience. Some bishops might say that is nonsense, but some would also believe that they had no choice but to follow canon law, given their consecration oath. Changing a law will not change a culture overnight. There is always some cultural inertia – commonly known as “pushback”, but, as Cardinal Francis George pointed out in an article in 2003, if you want to change a culture, you have to start by changing a law which embodies it. In so far as the cover up contributed to more children being abused than would otherwise have occurred, this change in canon law, recommended by the Commission, should also have some effect on the incidence of abuse itself.

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