KIERAN TAPSELL: Has the Pontifical Secret Been Secretly Buried?

After the criticisms of the pontifical secret at the February summit conference in Rome on child sexual abuse, it was widely expected that it would be abolished. It never happened, but recent announcements by two bishops’ conferences suggest that it may have been quietly buried behind closed doors.  

At the February summit of the heads of national Catholic Bishops’ Conferences in Rome on child sexual abuse, three prominent speakers, Cardinal Marx, Professor Linda Ghisoni and Archbishop Scicluna criticized the pontifical secret, imposed by canon law over child sexual abuse by clergy. It was widely expected that Pope Francis would abolish it, and would impose mandatory reporting to the civil authorities under canon law, as demanded by two United Nations Committees in 2014.

After imposing mandatory reporting to the civil authorities within the confines of the Vatican City for the protection of the 30 children who live there, Pope Francis issued his Apostolic Letter, Vos Estis Lux Mundi on 7 May 2019. He made some changes to canon law over child sexual abuse to be applied universally throughout the Church. He made no mention of the pontifical secret being abolished, and did not impose mandatory reporting to the civil authorities.

The Royal Commission into Institutional Responses to Child Sexual Abuse had found that the pontifical secret still applied where there were no applicable civil reporting laws and recommended its abolition. In response to the Royal Commission’s recommendations, the Australian Catholic Bishops Conference (‘ACBC’) stated that the pontifical secret ‘does not in any way inhibit a bishop or religious leader from reporting instances of child sexual abuse to civil authorities.’

It is not clear on what basis the ACBC made that statement, because its protocol for dealing with child sexual abuse, Towards Healing 2010, had required bishops to report all allegations to the civil authorities irrespective of whether there was a civil reporting law. The ACBC forwarded the protocol to Rome for vetting in accordance with the 2011 direction of the Congregation for the Doctrine of the Faith. It received a reply back from the Congregation on 22 February 2013 stating that clauses 39 and 40, which imposed mandatory reporting for all, could not apply to clergy who were governed by Sacramentorum Sanctitatis Tutela 2010, which, by Article 30, imposed the pontifical secret. In other words, mandatory reporting was fine for everyone else in the Church, but not for clergy. The ACBC in 2016 amended Towards Healing acknowledging the ‘exclusive competence of the Congregation for the Doctrine of the Faith in matters of child sexual abuse of minors perpetrated by clerics.’

On 15 February 2016, Cardinal O’Malley, the President of the Pontifical Commission for the Protection of Minors, stated that irrespective of civil reporting laws, Church authorities had an ethical and moral obligation to report all child sexual abuse to the civil authorities. Yet, when the Commission issued its guidelines for national protocols over child sexual abuse on 6 December 2016, Cardinal O’Malley’s statement was missing.

In 2012, the Italian Catholic Bishops Conference stated publicly that Italian Bishops would not be reporting child sexual abuse allegations against clergy to the civil authorities because Italian civil law did not require it under the 1929 Lateran Treaty with Mussolini. It repeated that statement in 2014 at a time when Pope Francis was the senior bishop of the conference. He did not demur. The statement was consistent with canon law as found by the Royal Commission that the pontifical secret applied unless there were civil reporting laws.

In May 2019, the Italian Catholic Bishops Conference announced that even though there was no legal obligation to report child sexual abuse in Italy, bishops had a ‘moral duty’ to do so, reflecting Cardinal O’Malley’s 2016 statement.

In May 2019, the ACBC issued its National Catholic Safeguarding Standards. Criterion 6.4 provides that allegations of child sexual abuse are to be reported to the civil authorities irrespective of whether the civil law requires it. No exceptions for clergy are included as required by the  Congregation for the Doctrine of the Faith in 2013.

What’s going on? It is always possible that the ACBC and the Italian Catholic Bishops Conference received a dispensation under Canon 87 of the 1983 Code of Canon Law from observing the pontifical secret so far as civil authorities are concerned. The pontifical secret is not ‘inviolable’, like the secret of the confessional. Another possibility is that the Vatican Curia issued an interpretation of Article 30 of Sacramentorum Sanctitatis Tutela 2010 and declared that the pontifical secret did not apply to reporting such abuse to the civil authorities. This would fit in with the evidence of Archbishop Coleridge to the Royal Commission that the Vatican is ‘neuralgic’ about changing the canons, and prefers to change their ‘interpretation.’

A secret dispensation from or a reinterpretation of the pontifical secret is one thing, but mandatory reporting is another. The former would allow reporting, the latter requires it. It may be that Pope Francis has decided to give national bishops’ conferences the authority to decide if mandatory reporting should take place in their regions as part of his desire to decentralise power in the Church.

As Deng Xiaoping once said, it doesn’t matter if the cat is black or white, so long as it catches mice. The problem is: how good is this decentralised cat when it comes to bishops and religious leaders being held accountable for cover ups?

One of the fundamental principles of every legal system is that no one can be punished unless they break the law. That principle is enshrined in Canon 221§3 of the 1983 Code of Canon Law. Standards issued by a national bishops’ conference are not canon law and only become so for their regions if they are formally approved as such by the Vatican under Canon 455.

If there is no such approval, this cat has no claws because every bishop is still a little pope in his own diocese and is subject only to canon law as it stands.  He cannot be punished unless he has breached it, and he doesn’t by a cover up.

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 ChurchHe was also a member of the canon law panel before the Australian Royal Commission.

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Kieran Tapsell is a retired civil lawyer, author and translator.

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