On 22 April 2013, Francis Sullivan, the CEO of the Truth, Justice and Healing Council (“TJHC”) that represents the Australian Catholic Church at the Royal Commission into Institutional Responses to Child Sexual Abuse, said: “The Australian community has been kept in the dark for too long.” Indeed it has, and since the setting up of the Royal Commission, the Australian Church has been open and frank about some its own failures. But on one critical issue, it has failed to be frank, and has continued the policy set by Pope Benedict XVI in his 2010 pastoral letter to the people of Ireland, of blaming negligent and misguided bishops for the cover up while ignoring the role of the Vatican and canon law on their behaviour.
In his statement to the Royal Commission tendered on 24 August 2015, retired Bishop Geoffrey Robinson, the architect of the Towards Healing protocol, said: “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.”
You won’t find a word about that in the Church’s 206 page submission to the Royal Commission, dated 30 September 2013, described by Francis Sullivan three days later as “the most comprehensive document ever produced by the Church dealing with child sexual abuse” and as “a warts-and-all history, going back many decades.”
One might have thought that after Robinson gave his evidence, the Church might at least have acknowledged the biggest wart of all. But no, in a submission dated just three days later, on 27 August 2015, the Church repeats the same Benedictine refrain of blaming some in positions of authority for covering up, moving perpetrators around, and failing to report these crimes to the police. There is not a word about the role of the Vatican and canon law.
The submission makes no mention of the pontifical secret that canon law imposes on all allegations of clergy sexual abuse of children. It is true that Bishop Robinson had adopted a lax view of the restrictions imposed by it, saying that he considered that it only prevented giving the information to the media. That interpretation was never supported, and still is not supported in Rome or by any of the canonical authorities. His unsupported interpretation is understandable because on other issues he was even prepared to defy canon law where its response to child sexual abuse was inadequate.
There is one positive aspect to the Church’s latest submission. It had previously supported the system of “blind reporting”, where victims’ identities were concealed when they did not want the abuse reported to the police. Following the Protea Report of the NSW Police Integrity Commission, the Church now supports uniform legislation throughout Australia requiring all allegations of sexual abuse to be reported, irrespective of the wishes of the victim.
Uniform legislation will get the Church off the canonical hook, because in 2010 the Vatican announced a dispensation to the pontifical secret by requiring all civil reporting laws to be obeyed. This latest submission from the Australian Church is just as misleading as its 2013 one, because it says nothing about the current obligations under canon law to observe the pontifical secret in most Australian States and Territories where the dispensation does not apply because of the current lack of reporting legislation.
There is another relevant aspect of canon law, which the latest submission does not mention. On 22 February 2013, the Congregation for the Doctrine of the Faith (“CDF”) wrote to the Australian Catholic Bishops Conference (“ACBC”) about its Australian Church Guidelines which it had sent to the Vatican in accordance with the direction given to all Bishops Conferences in 2011 by Cardinal Levada. The CDF reminded the ACBC that the procedures under Towards Healing can apply to all other Church personnel, but the CDF has exclusive jurisdiction over clerics. When an allegation of child sexual abuse has been made against a cleric, the bishop is required under Canon 1717 to conduct a preliminary investigation, and then to send all the information to the CDF which will then instruct the bishop what to do.
The CDF’s letter is silent about the situation where those allegations have been forwarded to the police, and the police are conducting an investigation. Towards Healing provides that if a police investigation is being undertaken, then all actions under the protocol are suspended until it is completed. But the Vatican has not indicated what is to happen when the bishop is obliged to conduct a preliminary inquiry. On the face of it, the inquiry is to continue in parallel with the civil one. This poses an enormous potential for interference in a police investigation. The bishop or his delegates would have to interview the same witnesses as the police, and perhaps would do so before the police did.
There is a further problem: when the Vatican spokesman, Fr Lombardi, in 2010 announced the requirement to obey all civil laws on reporting, he said that such reporting should take place “in good time, and not during or subsequent to the canonical trial”. It seems from a recent announcement by the CDF in the case of Fr Inzoli in Italy that the pontifical secret applies once the preliminary investigation starts, and reporting to the civil authorities is thereafter prohibited: see http://johnmenadue.com/blog/?p=3524.
While the Australian Church advocacy of comprehensive national legislation on reporting is to be welcomed, the deafening silence on the effect of canon law in its latest submission is remarkable for an organization that now prides itself on being transparent and exposing its “warts and all” problems with child sexual abuse. The biggest wart of all is, and has always been, canon law.
Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (ATF Press 2014)