Kieran Tapsell. Cardinal Barbarin and accountability.

Cardinal Philippe Barbarin of Lyon is currently being investigated by French police for failing to report sexual offences against children by some of his priests.

It is alleged that he knew about allegations against them in 2007 and 2009. Despite his denials of any wrongdoing, there have been calls for his resignation.

On Good Friday, retired auxiliary Bishop Geoffrey Robinson of Sydney, Australia, called on Pope Francis to request the resignation of every bishop who has failed to properly address cases of child sexual abuse.

It is unlikely that Pope Francis will agree, because it would undermine the integrity of the Church’s canon law as a coherent legal system.

The rule of law requires people to be punished for disobeying the law, not for obeying it – and this applies as much to canon law as to civil law.

Every bishop takes an oath on his consecration that he will obey all ecclesiastical laws. In 2002, when Cardinal Barbarin became Archbishop of Lyon, Pope John Paul II’s decree, Sacramentorum Sanctitatis Tutela of 2001 imposed the pontifical secret, a permanent silence, on all allegations of child sexual abuse by clerics. There was no exception for reporting such crimes to the civil authorities.

In 2002, Cardinal Desmond Connell of Dublin told the Murphy Commission in Ireland that earlier that year, he handed over to the Irish police some diocesan files relating to priests who had sexually abused children. He said that handing them over involved the greatest crisis of his time as archbishop, and he wondered if he had betrayed his consecration oath. The diocesan files were subject to the pontifical secret.

In 2001, Bishop Pierre Pican of Caen in France was given a 3 month suspended prison sentence for failing to report a serial sex abusing priest to the police. At his trial, the president of the French Catholic Bishops Conference, Cardinal Louis-Marie Billé, condemned the demand that such crimes should be reported as “intellectual terrorism” and as an infringement of “professional secrecy.”

In September 2001, Cardinal Dario Castrillón Hoyos, the prefect of the Congregation for Clergy, and a canon lawyer, wrote a letter to Bishop Pican congratulating him for covering up the priest’s crimes, and stating that bishops should be prepared to go to jail rather than report them to the police. He said he was sending a copy of his congratulatory letter to all bishops of the world holding up Pican as an example to be followed. He later said that his letter had been sent with the approval of Pope John Paul II.

In February 2002, Archbishop Tarcisio Bertone, (now a cardinal), a canon lawyer and the secretary of the Congregation for the Doctrine of the Faith, of which Cardinal Joseph Ratzinger was then the prefect, rejected the demands that bishops report priests for child sexual abuse. On 29 April 2002, Archbishop Julian Herranz (now a cardinal), the president of the Pontifical Council for the Interpretation of Legislative Texts, the pope’s delegate for making binding interpretations of canon law, said the same thing.

On 16 May 2002, Cardinal Oscar Rodriguez Maradiaga, now in charge of Pope Francis’ group of cardinals to reform the Roman Curia, said that bishops should be prepared to go to jail rather than to report these crimes to the police.

“We are pastors, not agents of the FBI or CIA,” he said.

Cardinal Karl Lehmann, the chairman of the German Catholic Bishops Conference,Cardinal Jan Schotte, then secretary general of the Synod of Bishops and Professor Gianfranco Ghirlanda SJ, a judge of the Apostolic Signatura, and dean of the Faculty of Canon Law at the Gregorian University in Rome all made similar statements in 2002.

In 2010, Pope Benedict XVI extended to the rest of the world a dispensation from the pontifical secret that had been given to the United States in December 2002, and which was just enough to keep bishops out of jail: bishops should report but only where there are civil reporting laws. Previously, canon law required them to break such laws.

Very few countries in the world have reporting laws for historical abuse (where the victim is an adult), which forms the vast bulk of all complaints. Not all countries have welfare reporting laws for children at risk. Since 2010, the pontifical secret still prohibits bishops from reporting allegations of abuse where there are no or inadequate civil reporting laws.

The requirements of canon law are irrelevant to Cardinal Barbarin’s guilt or innocence under French law.

But if he is convicted of breaching French law for failing to report such allegations to the civil authorities, should anyone be surprised that he acted in the way he did? The alleged offences occurred in 2007 and 2009, before the dispensation to report where the civil law required it was extended to France.

Had Cardinal Barbarin reported those allegations to the civil authorities he would have breached his consecration oath to obey all ecclesiastical laws, as well as going against the overwhelming weight of opinion of the Church’s senior cardinals and canon lawyers as to his moral, ethical and canonical obligations – he should be prepared to go to jail rather than report crimes against children by his priests.

For Pope Francis to sack these bishops, or call upon them to resign would undermine the whole idea of the rule of law in canon law.

In September 2014, Pope Francis rejected calls from the United Nations Committees on the Rights of the Child and against Torture to abolish the pontifical secret for clergy sexual abuse of children and to impose mandatory reporting under canon law. Until he does that, no bishop can be held accountable for covering up child sexual abuse in those jurisdictions where there are inadequate civil reporting laws.

So even if Cardinal Barbarin is convicted, he cannot be held accountable under canon law, precisely because he obeyed it.

Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (2014 ATF Press). 

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