KIERAN TAPSELL. Pope Francis Abolishes the Pontifical Secret Over Child Sexual Abuse.

On 17 December 2019, Pope Francis abolished the pontifical secret over child sexual abuse by clergy. This was the first step in returning the Catholic Church to its 15 century old tradition, which it abandoned in 1917, of regarding child sexual abuse as a crime that needed to be punished by the State. Francis has still not gone far enough because the restoration of that tradition requires the imposition of mandatory reporting to the civil authorities, as demanded by two United Nations Committees.

In its Final Report of December 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse found that canon law’s pontifical secret for child sexual abuse by clergy still applied where there were no applicable civil reporting laws, and recommended that it be abolished.

On 17 December 2019, Pope Francis abolished it in a document entitled Instruction on the Confidentiality of Legal Proceedings. Archbishop Scicluna, who has been at the forefront of reforms, is reported to have said: “local dioceses and religious congregations have the right and duty to share information with victims and with the civil authority as the pontifical secret cannot be invoked to impede or hinder that.”

The abolition of the pontifical secret for cases of child sexual abuse by clergy certainly gives bishops and religious leaders the right to report the allegations to the civil authorities, but nowhere in the Instruction does it say that they have the duty to do so. The footnotes to the Instruction attach commentaries by a number of Vatican officials, but none of them say that there is a canonical obligation to report such allegations to the civil authorities, a demand made by the United Nations Committees for the Rights of the Child, and against Torture in 2014.

The excuse given by the Vatican in the past against mandatory reporting was that different legal systems make a universal reporting law impossible, and that imposing one could endanger the Church in places where Catholics are a persecuted minority.

The Vatican did not seem concerned by this problem in 2010, when it announced that bishops would be required to report child sexual abuse allegations to the civil authorities where there was an applicable civil reporting law. There was no exception made for countries like Saudi Arabia where the Church is a persecuted minority. That requirement to comply with civil reporting laws is repeated in the 2019 Instruction, but still no exception is made.

Even if that concern is now genuine, there is a very simple solution. Every legal system creates exceptions to general laws where their application would be inappropriate, and the Code of Canon Law creates such exceptions 1,300 times. Canon 87 of the Code also allows for dispensations to universal laws.

In 1842, there was a universal law of the Church that penitents should denounce priests who solicited sex in the confessional. The Holy Office under Pope Gregory XVI issued a decree relieving the faithful of this obligation in the lands of “schismatics, heretics and Mohammedans,” the regimes of the time under which Catholics could expect persecution.

Further, Canon 455 allows for the making of local canon laws, and the Vatican did this in 2001 for the United States when it provided an exception to the pontifical secret to allow compliance with State reporting laws. Canon law on reporting can easily be moulded to suit every country. It’s easy, and it has been done many times before in the history of the Church.

This failure to require mandatory reporting creates a headache for Pope Francis if he is serious about making bishops accountable for cover ups. A fundamental principle of every legal system is that no one can be punished unless they break the law. This principle is expressed in Canon 221§3 of the 1983 Code of Canon Law. If bishops are not breaking canon law by failing to report to the civil authorities where there is no civil reporting law, then they cannot be held accountable.

The Instruction and its commentaries also deal with requests to the Vatican for documents about clergy sexual abuse by courts and commissions of inquiry. The Murphy Commission in Ireland and the Australian Royal Commission had difficulty obtaining documents relating to canonical proceedings against Irish and Australian priests. Andrea Tornielli, one of the commentators, states:

“This means that any reporting, testimony and documents produced in canonical trials related to such cases of sexual abuse…which until now were subject to the pontifical secret, can now be handed over when requested to lawful authorities in their respective countries. This is a sign of openness, transparency, and the willingness to collaborate with the civil authorities.”

This is disingenuous. The pontifical secret is not like the secret of the confession. It can be dispensed with by the Vatican under Canon 87, and that could have occurred in respect of both the Murphy Commission and the Australian Royal Commission. If the abolition of the pontifical secret means that there will be a new broom of openness from the Vatican, well and good. There are two current Royal Commissions dealing with child sexual abuse, including within the Catholic Church, one in the United Kingdom and the other in New Zealand. It will be interesting to see what response they get from the Vatican for the production of documents from canonical trials of priests in those countries.

The abolition of the pontifical secret over child sexual abuse by clergy, first introduced in 1922 and known then as the secret of the Holy Office, is at least a first step in the Church returning to its traditions of 1500 years of regarding the sexual abuse of children by clergy as a crime that must be punished by the State. The second step is to return to the position prior to 1917 when Pope Benedict XV in promulgating the first Code of Canon Law abolished the decrees of three popes and four Church Councils which required clerical sex abusers to be stripped of their status as clerics and handed over to the civil authorities. Handing them over is no longer necessary as we have police forces to which they can be reported. Mandatory reporting under canon law will return the Church to its own tradition that it abandoned in 1917 with disastrous results for the children of the world.

Kieran Tapsell is a retired civil lawyer and the author ofPotiphar’s Wife: The Vatican’s Secret and Child Sexual Abuseand 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 Church. He was also a member of the canon law panel before the Australian Royal Commission.

(Kieran Tapsell and Pearls and Irritations can modestly claim some success in this change announced by Pope Francis. We published 51 articles over several years on the pontifical secret and the cover up of sexual abuse in the Catholic Church. Other journals initiated or followed what we did….John Menadue)

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

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