On 13 November 2013, the Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Organizations handed down its Report, entitled “Betrayal of Trust”. It stated:
“No representatives of the Catholic Church directly reported the criminal conduct of its members to the police. The Committee found that there is simply no justification for this position.” (p.170)
There was no justification, but there was a reason. In 1922, Pope Pius XI issued Crimen Sollicitationis, requiring any investigation of child sex abuse by the Church to be covered by the “secret of the Holy Office”, the penalty for breach of which was automatic excommunication. There were no exceptions for reporting such crimes to the police. In 1962, it was reissued by Pope John XXIII with some minor changes.
In 1974, in the decree, Secreta Continere, Pope Paul VI replaced the secret of the Holy Office with “pontifical secrecy”, which extended that top secret classification even to the allegation.
In 2001, Pope John Paul II’s Sacramentorum Sanctitatis Tutela changed the procedures for dealing with the sexual abuse of children by clergy, and by Article 25 of those rules, re-imposed “pontifical secrecy” on any such allegations and trials of these cases, again, with no exceptions for reporting to the police.
In 2010, Pope Benedict XVI extended pontifical secrecy to cover clerics having sex with intellectually disabled people and the possession of child pornography. Around the same time, the Vatican spokesman, Fr. Lombardi SJ informed the bishops of a dispensation to pontifical secrecy by an instruction from the Congregation for the Doctrine of the Faith requiring compliance with any civil laws requiring reporting. The Vatican had previously rejected requests by American and Irish bishops to allow reporting irrespective of whether there were such reporting laws. In other words, the only amount of reporting the Vatican would allow was the minimum to keep Church authorities out of jail.
All Australian States have mandatory reporting laws about children at risk, but only New South Wales has a requirement to report “historic abuse”, that is, where the victim is now an adult. According to figures produced to the Victorian Parliamentary Inquiry, historic abuse amounts to more than 99% of all complaints. The existence of pontifical secrecy means that in Victoria, where there is no requirement to report historic abuse, canon law prevents a bishop from taking that information to the police, even if he wanted to.
The Melbourne Response has no requirement for reporting to the police, and Towards Healing up until 2010 required reporting where the law required it. Yet, the Committee found that in not one instance of the 307 cases involving the dioceses of Ballarat, Sale and Sandhurst, did the bishops report directly to the police. Only the bishops can give the reason, but a reasonable inference is that misprision of felony was abolished in Victoria in 1981, and there was no equivalent of S.316 of the Crimes Act 1900 (NSW) which requires reporting of all serious offences. But there is another reason: any reporting of information about sex abuse of minors that a bishop was required to investigate under Canon 1717 was strictly forbidden by canon law.
In May 2010, the Vatican requested all bishops’ conferences to send in their child protection guidelines which had to include a provision that civil laws relating to reporting had to be obeyed. If approved by the Vatican under Canon 455 the guidelines will become canon law for that region.
The systemic problem for Australia is that in all States other than New South Wales, there is no requirement to report to the police in 99% of all complaints of sexual abuse, and canon law still prohibits reporting of any information obtained in the course of an investigation by the Church.
There is also some confusion about the extent of the concession given in 2010. On 15 July 2010, the Vatican spokesman, Fr. Frederico Lombardi explained the changes brought about by the revision of Sacramentorum Sanctitatis Tutela. He said that any reporting had to be done “in good time, not during or subsequent to the canonical trial.” Four days later, on 19July 2010, he confirmed that any such investigation and trial was to be carried out with the “strictest confidentiality”. In other words, reporting to the police can only take place before the Church investigation and trial starts.
A canonical trial is not like trials in Australia where all the investigation is done first. It is more like a Coronial Inquiry so that in the course of the “trial”, there is likely to be new evidence. If what Fr. Lombardi says is taken at face value, it means that if the allegation made against a priest is that he abused 2 children, but at the trial it turns out he abused 22, and further that he murdered one of his victims, the bishop and anyone involved in that investigation is forbidden by canon law to take that to the police.
At the Maitland-Newcastle Inquiry, a canon lawyer, Dr Rodger Austin said that before anyone involved in that Church investigation and trial could disclose that information to the civil authorities, they would have to get a dispensation from the Vatican, thus confirming that canon law, as it stands, prohibits reporting this information to the police.
The Vatican is a foreign State, and it is effectively saying to Australian State and Federal governments that if they want Australian bishops to report clergy crimes to the police, they will have to pass laws to that effect, and even then there is some doubt as to whether or not bishops can comply with it once a canonical investigation and trial starts.
 Kieran Tapsell is a retired Sydney solicitor and barrister with degrees in Theology and Law.