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)

print
This entry was posted in Religion and Faith. Bookmark the permalink.

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

  1. Wayne McMillan says:

    Long overdue.

  2. Aldo Bayona says:

    Thank you, Kieran, for your clear analysis.
    It is apparent that the Catholic Church keeps deceiving Catholic and non-Catholic people about whether or not the Holy See requires Bishops around the world to contact police with allegations of child sexual abuse crimes in jurisdictions without proper mandatory reporting laws . The Holy See does not require that from Bishops. This is morally repugnant for ordinary people except for Pope Francis and the Holy See .

  3. Kieran (and John) – you need not be too modest about your contribution to this important change. These articles found their way to Rome alright. Fortunately there are still some areas on this planet where scholarship and rational argument are successful in bringing abut needed change. This reform means that victims will receive more support and would be predators are deterred.

  4. I don ‘t think you, Kieran, and John for publishing, need to be too modest in claiming some credit for the reform of this law. This change indirectly ensures that victims are supported and perpetrators deterred. There are some areas where scholarship and rational argument still has an effect (let’s leave Trump, Dutarte, and the others out of this for the moment). Well done.

  5. Mark Prytz says:

    Secrecy within catholic institutions and dioceses is not just standard practice
    its official policy.
    Catholic Education Melbourne Policy 2.7.
    “to protect the integrity of Catholic Education Melbourne, the Church and
    Catholic schools.”

    D) POTENTIALLY DAMAGING INFORMATION
    “Records which contain information which could be damaging to Catholic Education
    Melbourne, the Church or Catholic schools.
    Release date: will only be released at the discretion of Catholic Education Melbourne
    and may be edited.”

    “The main function of the Catholic Education Melbourne Archives is to serve the
    administrative needs of Catholic Education Melbourne and the CECV.”

    So, as with the Society of Jesus, the archives they hold are “private” information.
    Any historical information about sex abuse or abusers can and is kept secret.
    They are under no legal obligation to release this information about crimes and criminals,
    except when there is a civil suit lodged or a person charged by police and they are
    given a discovery request.
    (The new Section 327 of the Crimes Act is not retrospective).

    But then they can’t be trusted and will also delay and hold back information for as long
    as possible, seen again recently in the Ballarat diocese in a Ridsdale suit.
    And these are generally all charities, receiving public money (Catholic Education $37 million,
    Xavier College $8 million) and tax free donations and do not pay income tax.

    These charities, especially the Jesuits, are deliberately blocking attempts by survivors of
    sex abuse to get information, even something as simple as a staff list at a school.
    An ACNC (Australian Charities and Not for Profits Commission) person partly agreed that this might be classified as lack of “good governance” and disqualify their charitable status.

    There were 3 alleged sex offenders at Xavier College in 1997, they were not, as far as I know reported to
    the authorities (1994 mandatory reporting for teachers/principals), knowledge that the school and the Society of Jesus have about these does not have to be mandatorily reported.
    The “trick” I accidentally learned is to inform an associated person (school board member)
    who doesn’t know the information, he/she then gets legal advice that he/she must
    report this “new” knowledge to the police.
    (in Section 327 it is actually “any adult”)

    So, now the police can demand disclosure, but of course the survivor is not privy to this.
    Where was Priest X in 1960-1966? It is impossible to find out, though the Jesuits know.

    Keeping information secret is so important because so much of it is damning.
    Our laws allow them to keep it secret and we keep giving them millions of dollars.

  6. P.Boylan says:

    ‘Pontifical secret? Isn’t this a bit like the tobacco industry knowing for years it was making a dangerous product and hushing it up. Giving it a fancy name doesn’t make it any less a criminal conspiracy.’
    Comedian/lawyer Shaun MacCallef

    I think Shaun’s statement pinpoints and clarifies the reason Pope Francis’ removed the ‘Pontifical Secret’. It not only enabled the abuse of hundreds of thousands of children worldwide but played a major role in destroying the future ‘client’ base of the global Catholic Church.

    This week, the Australian Catholic Bishops Conference and Catholic Religious repeated, “The pontifical secret does not in any way inhibit a bishop or religious leader from reporting instances of child sexual abuse to civil authorities.”

    The Australian Royal Commission into Institutional Responses to Child Sex Abuse rejected the Australian Bishops and Catholic Religious same claim but it was again trotted out in the ACBC media.
    It seemed the Australian Bishops and Catholic Religious had not heard the news that Pope Francis had announced the abolishment of the ‘Pontifical Secret’ and the reason for his action.

    The strength of Kerian’s research into the Pontifical Secret has breezed through catholic laity and opened their eyes to criminal abuse supported by the church across the world.

  7. Richard Ure says:

    Is the PM’s religious freedom law designed or capable of giving succour to any attempts by religious bodies to weaken any aspect of the criminal or civil law dealing with the detection or punishment of perpetrators of abuse or limiting the rights of victims to receive compensation? The analogy of the Ellis defence comes to mind.

    • Kieran Tapsell says:

      I can’t think of any reason why it would. As one Irish judge said to a barrister who was referring to canon law as part of his argument: “canon law has as much relevance as the rules of golf.” Canon law does not override in any way civil law. But it can direct Catholics to break the civil law, and that is precisely what the pontifical secret did between 1922 to 2010 when it required bishops to break civil laws on reporting. Cardinal Castrillón, the Prefect to the Congregation for Clergy, in 1997, told the Irish bishops that they should prefer to go to jail than report a paedophile priest to the police. In 2010, bishops were told to obey civil reporting laws, but by retaining the pontifical secret where there were no reporting laws the Vatican demonstrated that it was more concerned about bishops going to jail than the welfare of children. The protection of the state’s criminal laws for children against predatory priests depended on whether they lived in places with comprehensive reporting laws.

      • Richard Ure says:

        In general terms, no one would argue with “canon law has as much relevance as the rules of golf”. But if those who have the ear of a PM who believes he won an unwinnable election single-handed to prevail upon his colleagues to allow the civil law to be overridden by religious beliefs, where does that leave us?

  8. Peter Johnstone says:

    Thanks Kieran for your key role in achieving this long necessary reform, whilst noting the regrettable failure of the Church to mandate reporting, an essential requirement in the protection of children. I do not believe this change would have happened without your research and advocacy. Similarly, congrats to John Menadue for his preparedness to publish material that speaks truth to power. Pearls and Irritations is a courageous blog that serves an important purpose in forcing accountability in matters of injustice.

  9. Jim KABLE says:

    Excellent analysis – thanks Kieran (and John M.). Might we now expect that Australian authorities will revisit their earlier requests for the details on the paedophiles identified during the Royal Commission – and any others formerly (or still?) protected in the files in Rome? If not – why not – especially important given on-going cases including that of Pell.

Comments are closed.