On 15 October 2013, Francis Sullivan, the CEO of the Truth, Justice and Healing Council, the body that speaks on behalf of the Australian Catholic Church at the Royal Commission, wrote an opinion piece for the ABC’s Religion and Ethics page. He claimed that the submission the Council had presented to the Royal Commission on the Towards Healing protocol for dealing with clergy sex abuse was “the most comprehensive document ever produced by the Church dealing with child sexual abuse” and a “warts-and-all history, going back many decades”.
The 206 page submission, dated 11 October 2013, conceded that some in positions of authority covered up clergy sex abuse, and that this behaviour was indefensible. There was no mention that canon law underpinned this behaviour. There was no mention of the secret of the Holy Office under Crimen Sollicitationis or pontifical secrecy imposed by Secreta Continere of 1974 or by Sacramentorum Sanctitatis Tutela of 2001 and again in its revision in 2010 by Pope Benedict XVI that prevented bishops from taking the information they obtained in their investigations of child sex abuse by clergy to the police. There was no mention of the findings of the Murphy Commission that the structure and rules of the Catholic Church “facilitated the cover up” in the Archdiocese of Dublin.
On 16 January 2014, the Holy See’s representative appearing before the United Nations Committee on the Rights of the Child, Bishop Scicluna, said that canon law required bishops to follow domestic law on mandatory disclosure. That dispensation was given to the United States in 2002 and to the rest of the world by Pope Benedict XVI in 2010. Two of the UN Committee members asked Scicluna why the Church did not require the disclosure of all allegations. Scicluna said that “education is the key to empowerment. Every local church has a moral duty to instruct people about their rights.” In other words, it is up to the victim to report the abuse, not the Church, a position that was insisted on by Cardinal Castrillón, the Prefect of the Congregation for the Clergy in a letter to the Irish bishops through the Papal Nuncio, Archbishop Storero in January 1997 and in a further letter in November 1998. Bishops’ reporting paedophile priests to the police, Castrillón insisted, not only conflicted with canon law, but it was in some ways ‘immoral’.
The absurdity of canon law on this issue is obvious from Benedict XVI’s revision of the 2001 Motu Proprio Sacramentorum Sanctitatis Tutela in 2010. He extended pontifical secrecy to cases of priests having sex with “those who habitually lack the use of reason”. It seems that the Vatican requires bishops to take on the mammoth task of educating intellectually disabled people about their rights so that they can be “empowered” to report their abuse by clergy to the police. A quick phone call by the bishop or his staff to the local police station would be easier, but canon law makes that impossible unless there happens to be a local law requiring reporting. In Australia, at the moment, only New South Wales has such a law – and very few other countries do for the vast majority of complaints about clergy sex abuse.
On 31 January 2014, the United Nations Committee on the Rights of the Child handed down its Concluding Observations on the Second Periodic Report of the Holy See. The Committee noted that some of the rules of canon law are not in conformity with the provisions of the Convention on the Rights of the Child, and it recommended a comprehensive review of canon law to ensure compliance.
It accused the Vatican of adopting “policies and practices which have led to the continuation of the abuse by and the impunity of the perpetrators.” It noted the practice of covering up known sex abusers and transferring them to other institutions under Church control. It said that despite the fact that the Church has full control of these personnel under canon law, it had declined to provide the UN Committee with information about the outcome of the canonical procedures against them. It accused the Vatican of allowing the vast majority of abusers to escape criminal prosecution by its use of its confidential disciplinary proceedings, and that:
“Due to a code of silence imposed on all members of the clergy under penalty of excommunication, cases of child sexual abuse have hardly ever been reported to the law enforcement authorities in the countries where such crimes occurred. On the contrary, cases of nuns and priests ostracized, demoted and fired for not having respected the obligation of silence have been reported to the Committee as well as cases of priests who have been congratulated for refusing to denounce child abusers, as shown in the letter addressed by Cardinal Castrillon Hojos to Bishop Pierre Pican in 2001.”
The Committee also noted that reporting to national law enforcement authorities has never been made compulsory, and was expressly rejected by the Storero letter of 1997. It also noted that in many cases, the Holy See has refused to cooperate with judicial inquiries.
The Church’s submission to the Royal Commission through the Truth, Justice and Healing Council on Towards Healing failed to mention pontifical secrecy and the restrictions it imposes on reporting clergy sex crimes to the police. The claim by the Church that it provided the Royal Commission with a “warts-and-all” history is simply untrue.
One does not have to be particularly astute to detect in the questioning of Bishop Jarrett and Brother Crowe at the Royal Commission that canon law is right within the cross hairs of the Commission. Now with this United Nations report that has honed right into the real crux of the problem, it will be interesting to see how long it is going to take the Australian Church to pull its head out of the sand and remove the make-up it has placed on the biggest wart of all: the cover up ordered, expanded and confirmed through canon law by six Popes from 1922: Pius XI, Pius XII, John XXIII, Paul VI, John Paul II and Benedict XVI.
Kieran Tapsell is a retired lawyer with degrees in theology and law.