KIERAN TAPSELL. The Australian Church Response to the Royal Commission Final Report on the Pontifical Secret.

The Australian Catholic Bishops Conference in its response to the Royal Commission’s Final Report has claimed that the pontifical secret does not inhibit bishops from reporting all allegations of child sexual abuse against clergy to the civil authorities. In view of statements to the contrary by the Church’s senior canon lawyers in the Roman Curia, three judicial commissions in different parts of the world and two United Nations Committees, Pope Francis has no choice but to clarify the situation.

In the period 1997 to 2002, five senior lawyers from the Roman Curia, Cardinals Castrillón, Re, Archbishops Bertone and Herranz and Professor Ghirlanda stated that bishops should not report child sexual abuse allegations to the police. Four heads of national Catholic Bishops Conferences Cardinals Billé, Lehmann, Rodriguez Maradiaga and Schotte from France, Germany, Honduras and Belgium, made similar statements. Two of the cardinals, Castrillón and Rodríguez Maradiaga stated that bishops should prefer to go to jail, that, is break the civil law, rather than report child sexual abusing priests.

None of these Cardinals or their successors have resiled from the opinions then expressed. The only modification of that stance was the dispensation given by the Congregation for the Doctrine of the Faith in 2002 to the United States that civil reporting laws should be obeyed, which was extended to the rest of the world in 2010.

Canon 19 of the Code of Canon Law provides that where the pope or his delegate, the Pontifical Council for the Interpretation of Legislative Texts has not made an authentic interpretation of canon law, guidance is to be provided by the “jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned persons.” 

The Royal Commission received submissions from several “learned persons” and four of them were invited to be part of a panel on canon law on 9 February 2017. Given that the panellists did not have a common or constant opinion on the pontifical secret and its effect on reporting to the civil authorities, it is not surprising that the Royal Commission turned to the “jurisprudence and practice of the Roman Curia,” referred to above. 

The Royal Commission concluded: “We are very clear that there should be no provision in canon law that attempts to prevent, hinder or discourage compliance with mandatory reporting laws by Australian bishops and others or to impede those who choose to report to the civil authorities…

We understand 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.”

Recommendation 16.10 of the Commission’s Final Report states: “The Australian Catholic Bishops Conference should request the Holy See to amend canon law so that the pontifical secret does not apply to any aspect of allegations or canonical disciplinary processes relating to child sexual abuse.”

Judicial Commissions in Massachusetts in 2003, in Ireland in 2009, the Parliamentary inquiry in Victoria in 2012 and two United Nations Committees for the Rights of the Child, and against Torture in 2014 also concluded that the Church’s secrecy laws did inhibit bishops from reporting to the civil authorities. 

On 31 August 2018, the Australian Catholic Bishops Conference released the report it had received from the Truth Justice and Healing Council and its own response to the Royal Commission’s recommendations. 

In relation to the pontifical secret and recommendation 16.10, the TJHC report stated that there was nothing in canon law which prevented bishops from complying with civil reporting laws. There was no issue about this amongst the canon law panel at the Royal Commission because of the 2010 directive from the Vatican that bishops should obey all civil reporting laws.

Where there were no applicable civil reporting laws, one canon lawyer argued that the pontifical secret only applied to the judges of the canonical tribunal, and not to bishops, a view rejected by a fellow canonist, in oral evidence before the Commission. Instead, the latter argued in a report submitted by the TJHC, that there was a moral obligation to report such abuse even if there were no reporting laws, and relied on a statement to that effect by Cardinal O’Malley from the Pontifical Commission for the Protection of Minors, a purely advisory body with no legislative or judicial status in the Church. 

The unusual thing about this submission is that if changes in opinion about morality (Cardinal Castrillón told the Irish bishops in 1997 that reporting to the civil authorities not only breached canon law, but was immoral) had the effect of changing the law, it would render canon law, said to be the oldest continuing legal system in the Western world,  incoherent as a legal system. It is a fundamental principle of all legal systems that moral opinions only become law when they have been promulgated as law.  

The Royal Commission understood this when rejecting the Church’s submission, stating that O’Malley’s statement was “in tension with” Art. 2010 of the norms imposing the pontifical secret and the limited 2010 dispensation that allowed bishops to comply with civil reporting laws.  

In its report to the ACBC, the TJHC stated “the Council does not believe that the ‘pontifical secret’ has the effect which appears to underlie the recommendation.”

The ACBC response stated: “The pontifical secret does not in any way inhibit a bishop or religious leader from reporting instances of child sexual abuse to civil authorities.”

The pope is the final and authentic interpreter of canon law, just as the High Court of Australia is in our civil law system. Given the Australian bishops’ statement that they disagree with the findings of the Royal Commission, two United Nations Committees and three other independent commissions of investigation, not to mention their ignoring the earlier statements from the Roman Curia, Pope Francis has no choice but to clarify the effect of the pontifical secret on reporting to the civil authorities where there are no such applicable civil reporting laws. He can do this in two ways. He can amend Art. 30 of the 2010 norms to provide for an exception for the pontifical secret to allow for reporting in all cases to the civil authorities, or he can make a declaration that the pontifical secret does not apply to such reporting. 

If Pope Francis wants to make bishops accountable, he has to go further than that. He has to make it a canonical crime for bishops and Church authorities to cover up child sexual abuse. The longer he delays in acting on these matters, the more the issues of the cover up and accountability will fester.

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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3 Responses to KIERAN TAPSELL. The Australian Church Response to the Royal Commission Final Report on the Pontifical Secret.

  1. I agree with both. But I also think a quicker way to make change is to call to account any clergy/hierarchy who do not want to follow their vows of celibacy/chastity, and to defrock any clergy/hierarchy who have abused their positional/professional power, anyone, child, adult woman or man, seminarian, Sister, novice, a man’s wife, a woman’s husband. This is what is now done in other professions (though there is great cover up there as well preventing it). I really have realised what has bugged me Keiran – we are wanting the same thing but coming from opposite ends. You are a lawyer fighting the hierarchs and canon law, I am a survivor albeit a being-educated and informed-by-therapy one now, seeking to give voice to and find justice for other survivors. I support your call fully for a change in canon law or at least a command from ‘on high’ for mandatory reporting for all clergy in all circumstances. I fear, however, that because there may well be too much to hide, preventing a more open reporting system, that there will be simply more weathering of the storm.

  2. Kieran – very lucid presentation as usual.
    All outfits cover up. My experience and observation is that the departments of government want to cover up in the same way the church does (witness going for the lawyer for the whistle blower on bugging the East Timorese negotiators.) It gets sickening when it hurts people unjustly.

    • Kieran Tapsell says:

      Dally, I agree. Covering up within an organisation is almost a tribal thing. I saw it once in a volunteer organisation where an attempt was made to blame a tragedy on the weather and not on some very poor decisions of their colleagues. However, the Catholic Church is unique in writing that tribal instinct into its internal laws. Law and culture are intimately entwined, and while the culture of cover up won’t change overnight with a change in the law, that is where the change has to start.

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