Pope Francis has little chance of overcoming clericalism and the toxic culture of cover up in the Catholic Church unless he changes those parts of canon law which are dripping with it.
Pope Francis has responded to recent scandals of child sexual abuse and cover ups in Chile and Pennsylvania by insisting on bishops’ accountability and the end of the cultures of cover up and clericalism.
One of the most fundamental principles of every coherent legal system is that people subject to the law cannot be punished unless they have breached it. Even more fundamental is that they cannot be punished for obeying it. This principle is expressed in Canon 221§3 of the 1983 Code of Canon Law.
Cardinal Barbarin of Lyon is presently awaiting trial on charges of covering up allegations of child sexual abuse by priests in 2007 and 2009, in contravention of French law. Prior to 2010, all allegations and information about priest sexual abusers were subject to the pontifical secret by a 2001 decree of Pope John Paul II. There were no exceptions for reporting to the civil authorities.
Between 1997 and 2002, the Church’s most senior canon lawyers and Curia Cardinals, as well as the heads of four national Catholic Bishops Conferences insisted that child sexual abuse allegations should not be reported by bishops to the civil authorities, two of the cardinals stating that bishops should prefer to go to jail. The Royal Commission into Institutional Responses to Child Sexual Abuse found that in 2002, the Vatican agreed to a compromise with the United States Catholic Bishops Conference to allow reporting but only where there were applicable civil reporting laws. Not all American States had them. The Commission also found that in 2010, that limited dispensation was extended to the rest of the world.
In failing to report the allegations in 2007 and 2009, Cardinal Barbarin was complying with the pontifical secret because the dispensation to comply with civil reporting laws was only extended to France in 2010. It follows that Cardinal Barbarin cannot be held accountable under canon law for any cover up because of the fundamental principle expressed in Canon 221§3 .
Three American bishops, Finn, Nienstedt and Piché resigned after being charged with covering up, contrary to the civil laws of their respective States. These bishops not only breached the civil law, but they also breached canon law because the cover ups occurred after 2002, when canon law for the United States required compliance with all civil reporting laws. These bishops could be held accountable under canon law. No other bishop in the United States, to my knowledge, has been held accountable for a cover up.
Archbishop Wilson of Adelaide, recently convicted of covering up the crimes of Fr Fletcher between 2004 and 2006, cannot be held accountable under canon law either, because he had not breached it in failing to report what he knew about Fletcher to the police.
The Royal Commission found that the pontifical secret still applies in those jurisdictions without applicable reporting laws. This implies that the Church will continue to cover up where it can. Avoiding bishops going to jail seems more important than the welfare of children where the protection of the civil law by punishing perpetrators depends on whether children are lucky enough to live in jurisdictions with adequate reporting laws. “We are very clear that there should be no provision in canon law that attempts to….impede those who choose to report to the civil authorities,” the Royal Commission stated and recommended the abolition of the pontifical secret for child sexual abuse.
Clericalism is the giving of unjustified privileges or protections to clergy over and above those that apply to the laity. The Australian Church protocol, Towards Healing 2010 provided for mandatory reporting of all allegations of child sexual abuse to the police with the proviso that if the survivor wished to remain anonymous, that would be respected. The protocol covered all Church personnel and not just clergy. The Royal Commission noted that the Australian Catholic Bishops Conference was aware that this provision breached canon law so far as clergy were concerned.
In 2011, the Congregation for the Doctrine of the Faith required all Bishops Conferences to forward their protocols for vetting. On 22 February 2013, the Congregation wrote to the Australian bishops effectively telling them that mandatory reporting was fine for all other Church personnel, but not for clergy whose behaviour was governed by canon law that protected them with the pontifical secret. This is a clear case of clericalism.
Pope Francis has been rightly praised for his words over climate change, poverty and inequality, but he cannot do much about them personally. He can only encourage governments to act. But here, he can take a step towards overcoming the toxic culture in the Church that has led to the cover up of the sexual abuse of children. In 2014, he refused to abolish the pontifical secret when requested to do so by the United Nations Committees on the Rights of the Child and against Torture, and he has failed to respond to the recommendation of the Royal Commission to do the same.
Peppered throughout the Royal Commission’s Final Report are numerous references to the culture of secrecy and cover up and the avoidance of scandal. Law and culture are intimately entwined. The Church’s secrecy laws from 1922 onwards arose out of a culture of secrecy and cover up at the highest levels in the Vatican. By continuing and expanding those laws in 1962, 1974, 2001 and 2010, subsequent popes have entrenched and deepened that culture.
That culture will never be overcome while there is a law in place that embodies it. No one pretends that a culture can be changed simply by a change in the law. Homophobia did not disappear with the decriminalization of homosexuality, but it was dramatically reduced once the civil law ceased to brand it as an abomination to be punished. Changing the law that embodies a toxic culture is a necessary first step. If Pope Francis is serious about accountability and the cover up, it is surprising that he has not lifted his pen and issued a decree in accordance with the recommendations of the Royal Commission.
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.
Kieran Tapsell is a retired civil lawyer, author and translator.
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