Kieran Tapsell: Mental Reservation at the Child Sexual Abuse Royal Commission

Jun 14, 2015

Current Affairs

On 28 May 2015, the convicted serial paedophile and former Catholic priest from Ballarat, Gerald Ridsdale gave evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse by video link from prison. Ridsdale is 81 years of age, and one might have expected him to have some memory problems. It is surprising, however, that he did not recollect ever living in the same house for a year with one of the few Australians to be made a Cardinal, George Pell.

In the course of the afternoon, the Chair, Justice McLellan asked Ridsdale if he was familiar with the principle of “mental reservation”. Ridsdale admitted that it was something they talked about “in the priesthood”, but he couldn’t remember “what it is now”. McLellan asked:
Q.     Do you remember that it might have something to do with justifying you not telling the whole truth when asked a question?
A.     No, I didn’t know that.

Mental reservation is usually more subtle than simply saying that you don’t remember something when you do. It involves giving an answer designed to deceive. Cardinal Desmond Connell, the former Archbishop of Dublin, explained “mental reservation” to the Murphy Commission, as deceiving someone without telling a lie: “….there may be circumstances in which you can use an ambiguous expression realising that the person who you are talking to will accept an untrue version of whatever it may be ….”

The Catholic Catechism says it is permissible to use “discreet language” to avoid telling the truth which might create “scandal”. One such scandal is the role of six popes in ordering the cover up of clergy sexual abuse through canon law from 1922 onwards. Popes are absolute monarchs when it comes to canon law, and they are uniquely responsible for it.

There is an exquisite piece of mental reservation in the 207 page submission of September 2013 of the Truth, Justice and Healing Council that represents the Australian Catholic Church at the Royal Commission. Francis Sullivan, the Council’s CEO described the submission as a “warts and all history going back many decades”. It mentions canon law quite a lot, but makes no mention of the secret of the Holy Office under Crimen Sollicitationis (1922 of Pius XI, and revised by John XXIII in 1962) or the pontifical secret under Secreta Continere (1974 of Paul VI) or its application by Pope John Paul II in his decree Sacramentorum Sanctitatis Tutela in 2001 and again by Pope Benedict XVI in his 2010 revision of it. These papal instructions and decrees prohibited Church authorities from telling anyone, including the police, about allegations and information on child sexual abuse by clergy. It is not surprising that there was a persistent pattern all over the world of Catholic bishops covering up child sexual abuse. In 2010, the Holy See agreed to a dispensation to allow reporting to the civil authorities, but only where there are civil laws requiring it. Very few countries have comprehensive reporting laws, and in Australia, only New South Wales and Victoria have them.

The Councils submission to the Royal Commission states on page 132, par 10: “There is nothing in the 1983 Code that is in conflict with any applicable civil law obligations relating to the reporting of allegations of child sexual abuse.”

That statement is true because the pontifical secret is not imposed by the 1983 Code, but by Secreta Continere, and Sacramentorum Sanctitatis Tutela which do not form part of the code, but they are still part of canon law. Those who know nothing about canon law would think from that statement that the Church’s law does not – and never has – prohibited reporting to the police, because that is what “codes” generally are – collections of all the laws.

Even if the sentence read “there is nothing in canon law”, that would also have been true in September 2013 because of the 2010 dispensation. But it would still be misleading and not the “whole truth” because it was only true for the last 3 years of the “many decades” of the “warts and all history”, that the Council’s submission was supposed to cover.

There is another reason why it may not be the “whole truth”. On 15 July 2010, the Vatican spokesman, Fr Lombardi, when announcing an exception to the pontifical secret to allow reporting where local domestic law requires it, said that reporting had to take place “in good time, not during or subsequent to the canonical trial.” Now, it is possible that Fr Lombardi was only advising bishops about the best time to report. On the other hand, he could have been imposing a condition on reporting, so that once a canonical inquiry or penal trial starts, then the pontifical secret applies, and there can be no more reporting, irrespective of what the civil law says. This is a matter of some importance, because an allegation of one instance of child sexual abuse might come to the attention of the bishop, and is reported in accordance with the civil law, but the Church’s inquiry or trial reveals another 20 cases by the same priest. If canon law only allows reporting before the preliminary inquiry or penal trial starts, then the pontifical secret would prevent reporting of those other 20 cases.

In 2015, the Holy See seemed to confirm these limitations on reporting in the case of Fr Mauro Inzoli, accused of abusing dozens of children over a ten year period. He was dismissed by Pope Benedict in 2012, but Pope Francis reinstated him, and applied the practice of the Congregation for the Doctrine of the Faith of allowing him to live a “life of prayer and penance” with restrictions on his public ministry. When the Italian magistrates wanted access to the documentation of his canonical trial, the Holy See refused, saying: “The procedures of the Congregation for the Doctrine of the Faith are of a canonical nature and, as such, are not an object for the exchange of information with civil magistrates.”

The Italian magistrates were seeking the production of documents produced “during the canonical trial” and their request was made “subsequent” to it. The reasons for refusing to produce them support the view that Fr Lombardi was indeed talking about a restriction on reporting.

If that is the case, the statement in the Truth, Justice and Healing Council submission is even more misleading. I suspect we are going to hear a lot more about “mental reservation” as the Royal Commission hearings continue.

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

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