Kieran Tapsell. A Clash between Church and State in Australia?Sep 8, 2015
The recent appearance by retired Bishop Geoffrey Robinson at the Australian Royal Commission into Institutional Responses to Child Sexual Abuse has raised the possibility of a clash between Australia and the Vatican along similar lines to what occurred in Ireland in 2011 after the publication of the Murphy Commission’s Cloyne Report.
Bishop Robinson was the architect of the Australian Catholic Bishops Conference protocol, Towards Healing. He told the Commission: “However great the faults of the Australian bishops have been over the last thirty years, it still remains true that the major obstacle to a better response from the Church has been the Vatican.” He had formed the view that canon law was next to useless for dealing with child sexual abuse, and that if the bishops were to respond adequately, they would have to invent something which conflicted with canon law. It is a tribute to Robinson’s persuasive powers that he managed to convince a majority of Australian bishops to agree. This defiance of canon law did not last, because priests suspended under Towards Healing appealed to Rome, which ordered their reinstatement, despite the risk they posed to children.
Robinson was highly critical of Pope John Paul II for his lack of leadership over clergy sex abuse, and in particular his imposition of a 5 year limitation period in the 1983 Code of Canon Law for dismissal proceedings against clergy for the sexual abuse of children. Prior to 1983, there was no such limitation period. If a 7 year old child was sexually abused by a cleric, and did not complain about it before the age of 12, the canonical crime was “extinguished”, and bishops were powerless to dismiss him under canon law. The 5 year limitation period effectively meant there were no canonical trials of paedophile priest between 1983 until 2001, when the period was extended.
But Robinson was equally critical of Pope Benedict and Pope Francis for failure of leadership. Pope Francis has certainly talked the talk, and set up a Commission to advise him, but he has done nothing to change canon law. He is the absolute monarch when it comes to canon law, being answerable to no one. The Holy See was requested by the United Nations Committees on the Rights of the Child and on Torture to abolish the pontifical secret over allegations of child sexual abuse and to order mandatory reporting to the civil authorities irrespective of whether there were civil laws requiring it. In September 2014, Pope Francis rejected the request with the casuistic excuse that mandatory reporting would interfere with the independence of sovereign states. If that were true, the Church should not even have a canon law which nationals of countries outside the Vatican ought to obey. Canon law only interferes with national sovereignty when it requires Church authorities to disobey the civil law. No country prohibits the reporting of child sexual abuse.
Since 2001, there have been only minor changes to canon law’s seriously defective disciplinary provisions. There has been no change to canon law’s Catch 22 defence: a priest cannot be dismissed for paedophilia because he is a paedophile. Canon 1321 requires a crime to be “imputable” and the Murphy Commission in Ireland found that this means that paedophilia is treated in canon law in the same way as insanity is in civil law – the result being that the more children a priest abuses, the less likely can he be dismissed. Fr Tony Walsh and Fr Patrick Maguire in Ireland were both serial paedophiles whose dismissals by the Dublin canonical court were set aside by the appeal court in Rome because they had been diagnosed as paedophiles.
There has been no change to Canon 1341 requiring the use of the “pastoral approach” for offending clerics. Pope Francis has claimed that he and Pope Benedict have adopted “zero tolerance” for child sexual abuse. But this is pure spin, because zero tolerance is incompatible with Canon 1341, and is proved by the figures produced by the Holy See to the United Nations Committee on the Rights of the Child: only one third of priests against whom credible allegations have been made have been dismissed.
Pope Francis himself applied the “pastoral approach” in the case of Fr Mauro Inzoli, dismissed by Pope Benedict 2012 for abusing dozens of children over a ten year period. Pope Francis reinstated him, restricted his public ministry, and ordered him to live a “life of prayer and penance” – the same punishment that Pope Benedict imposed on the notorious Fr Marcial Maciel who lived out the rest of his days in a house in a gated community in Florida that the Legion of Christ had bought for him.
The Royal Commission’s Case Study into the Jehovah’s Witnesses demonstrates that it is not only interested in rules, but in the beliefs behind them. One belief in the Catholic Church that is likely to be examined by the Commission is the special status of clerics where allegations against them are protected by the pontifical secret, and by the application of the “pastoral approach” that allows them to continue as priests even if their activities are restricted. Further, the Commission is not going to take too kindly to the claims of the Vatican, a foreign state, that it has exclusive jurisdiction over disciplinary measures to be applied to clerics for child sexual abuse.
This special status of priests as “ontologically different” human beings was referred to by Bishop Geoffrey Robinson in his evidence to the Royal Commission. He had attended a meeting at the Vatican in 2000 to discuss the child abuse crisis, and came away frustrated at the attitude of the Roman Curia which was more concerned about the rights of the priest than the plight of children. A discussion paper issued by the Congregation for the Doctrine of the Faith suggested that a repentant priest should not be subjected to the long periods of punishments that civil law imposes because “the supreme law of the Church is the salvation of souls.” The Congregation seems to think that a priest’s soul is more likely to be saved if he is living in a comfortable presbytery or on a Church pension than if he is in prison. One might have thought that prison would provide many more opportunities for “prayer and penance”.
It is difficult to see how the Royal Commission can have any confidence in the Vatican’s capacity to discipline priests in accordance with current standards applied to other professions. The failure of Pope Francis to reform canon law could well lead to a recommendation from the Royal Commission that the Australian States take over the disciplining of clerics for child sexual abuse, and to decide whether or not they can operate or hold themselves out as Catholic priests within their territories. If that happens, Pope Francis has only himself to blame.
Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (ATF Press 2014)