Pearls and Irritations

In his more than 40 blogs posted on the Truth Justice and Healing Council’s web site, Francis Sullivan, its CEO, has never, until last week, mentioned any difficulties that canon law might have posed for bishops in reporting sexual abuse by clergy to the police or in dismissing them through the Church’s own internal disciplinary systems.

In his blog of 4 June 2014, Francis Sullivan wrote:

“Earlier in the week I went to the launch of Kieran Tapsell’s new book Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse. This highly controversial book argues that the cover-up of child sexual abuse in the Catholic Church has been occurring since 1922 when Pope Pius XI imposed the ‘secret of the holy office’ on all information obtained through the Church’s canonical investigations. If the State did not know about .the crimes, the Church could treat them as a purely canonical crime to be dealt with secretly.

Mr Tapsell argues that the following five Popes continued the decree making Bishops powerless to appropriately report clerical sex abuse. I am looking forward to reading this book and getting a better understanding of the issues Mr Tapsell raises.”

Then on 5 June, there was a media release from the Truth, Justice and Healing Council which said,

“Francis Sullivan, CEO of the Truth Justice and Healing Council said it appears clear that canonical issues have struggled to keep pace with the realities of how to deal with clerical sex abuse cases in Australia. ‘One thing does need to be made very clear: there is nothing in canon law that stops priests or bishops reporting the crime of child sexual abuse to the police in Australia,’ Mr Sullivan said.”

It is going to be interesting to see what evidence and argument the Church produces to support Sullivan’s assertion. The pontifical secret, a permanent silence on all allegations and information about child sexual abuse by clergy, is imposed by Art. 30 of Sacramentorum Sanctitatis Tutela as revised in 2010, and by Secreta Continere of 1974 that is specifically incorporated in footnote 41. Secreta Continere allows only one exception to the pontifical secret: the accused priest can be told about the allegation if it is necessary for his own defence. One might have thought this was implied, but canon law leaves nothing to implication with the pontifical secret. There is no exception for reporting to the civil authorities.

In 2010 the Vatican announced that the Congregation for the Doctrine of the Faith would henceforth instruct bishops that they have to comply with all civil laws requiring reporting.  Francis Sullivan’s statement ignores the limitations on that dispensation. If there is no civil law requiring reporting (as in the case for most complaints of sexual abuse in all States and Territories, apart from NSW), the pontifical secret still applies. Dispensations under canon law have to be strictly construed.

From 1997 to 2002, the highest members of the Roman Curia confirmed that the pontifical secret prevents reporting to the police. After the election of Pope Benedict XVI in 2005, when accusations were made of his involvement in the cover up, the standard response by the Church was that the pontifical secret “only applies to the Church’s internal procedures”. Of course it does, but that is and was the source of virtually all its information on child sexual abuse.

Francis Sullivan’s statement would be correct if something was added to the end of it:

“… there is nothing in canon law that stops priests or bishops reporting the crime of child sexual abuse to the police in Australia if they saw the sexual assault on the minor.”

Their knowledge of the matter did not then derive from the Church’s “internal procedures”, but from their own observations. But how often would that happen? Eminent canon lawyers, like Professor John P Beal, Professor Nicholas Cafardi, Monsignor Maurice Dooley, Fr Tom Doyle, and the spokesman for the Irish Catholic Bishops Conference, Martin Long, and the Vatican spokesman, Fr Federico Lombardi have confirmed that the strictest confidentiality applies to the Church’s internal proceedings. Professor Beal is on record as saying that the permanent silence of the pontifical secret is so strict that it prevents the bishop from telling anyone if the priest has been found guilty or innocent. Fr Lombardi even said in 2010 that reporting to the civil authorities under the instruction from the Congregation for the Doctrine of the Faith must be carried out “….in good time, not during or subsequent to the canonical trial.” That may mean that if in the course of a canonical trial (which includes the preliminary investigation) the priest admitted to murdering one of his victims that could not be disclosed to the civil authorities even if there was a law requiring reporting. The Australian canon lawyer, Rodger Austin told the Maitland Newcastle Special Commission that a member of a Church tribunal would have to be dispensed from the obligation of confidentiality if required to give evidence in a civil court of what was learned in that process. Such a dispensation under canon law would have to come from the Holy See. If there was no prohibition on revealing that information, why is there a need for a dispensation?

In his blog of 11 June 2014, Francis Sullivan wrote about preparations for the next case study and said, “The Church continues its honest and upfront approach in responding to the Royal Commission.” It remains to be seen how honest and upfront the Church is going to be about the pontifical secret when the issue of reporting is dealt with by the Commission, and what evidence it will produce to contradict senior Cardinals in the Roman Curia, five of its most eminent canon lawyers, the Irish bishops’ spokesman and the Vatican spokesman that anything disclosed in the Church’s “internal procedures” is to be kept strictly confidential.

Kieran Tapsell is a retired lawyer with degrees in theology and law and is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (2014 ATF Press).

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