Pope Francis finally makes bishops accountable for cover-ups

Jul 24, 2020

On 16 July 2020, the Vatican published a manual for dealing with allegations of child sexual abuse against Church personnel. It marks a significant change in culture expressed in canon law for the last 100 years where the Church was more concerned about providing immunity for clergy child sex perpetrators than it was for the welfare of their victims.

In 2014, two United Nations Committees, for the Rights of the Child, and against Torture, criticized the Vatican for the pontifical secret imposed over allegations of child sexual abuse and for not changing canon law to require Church authorities to report such allegations to the police. The Vatican’s response was that the Church would obey civil reporting laws, but it was otherwise not its responsibility to report – it was up to the victims, even if they were children or those intellectually incapable of reporting.

The Royal Commission into Institutional Responses to Child Sexual Abuse had found in its 2017 Final Report that the pontifical secret still applied where there were no applicable civil reporting laws, and recommended its abolition. Within Australia at the time, only New South Wales and Victoria had comprehensive reporting laws. Once the other States and Territories adopted the Royal Commission’s recommendation that they pass similar laws, canon law required bishops in those places to report abuse to the civil authorities.

In February 2019, Pope Francis held a summit meeting on child sexual abuse at the Vatican with the heads of national Catholic Bishops’ Conferences. Three prominent speakers, Cardinal Marx, Professor Linda Gishoni and Archbishop Scicluna criticized the pontifical secret. 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 the two United Nations Committees.

After imposing mandatory reporting to the Vatican civil authorities for the protection of the 30 children who resided within its walls, 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 outside the Vatican City.

One of the fundamental principles of every coherent 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. Without some kind of canonical obligation, no bishop could be punished for a cover up.

On 17 December 2019, Pope Francis abolished the pontifical secret for child sexual abuse in a document entitled Instruction on the Confidentiality of Legal Proceedings. Bishops were no longer prohibited by canon law to report to the civil authorities, but they still had no obligation to report unless the civil law required them to do so. The hollow excuse given by the Vatican in the past against mandatory reporting was that imposing a universal law to report could endanger priests in places where Catholics are a persecuted minority. Every legal system in the world deals with the problem of where a universal law is inappropriate by creating exceptions, and the Code of Canon Law has 1,300 exceptions to its universal laws.

On 16 July 2020, the Vatican issued a new manual for dealing with child sexual abuse allegations against Church personnel. Clause 17 states: “Even in cases where there is no explicit legal obligation to do so, the ecclesiastical authorities should make a report to the competent civil authorities if this is considered necessary to protect the person involved or other minors from the danger of further criminal acts.” Clause 48 accepts that, subject to civil laws, the Church authorities are to respect the wishes of the complainant not to report. This reflects the exception under the New South Wales and Victorian Crimes Acts on mandatory reporting.

The manual is not part of canon law, but it is probably enough to make a bishop accountable for a cover up. Bishops can be punished under canon law for negligence in office, and the standard of care set by the manual is to report where the survivor needs protection or children are at risk.

The manual indicates an interesting change of culture because canon law for the last 100 years was more concerned about providing immunity for abusive priests than the welfare of children. Even the “repressive regimes” excuse was based on concern about priests being harshly punished and not about the welfare of children.

In 2002 in the United States and 2010 elsewhere, the Vatican required bishops to comply with civil reporting laws. It was obvious that the cultural concern of the Vatican was not the welfare of children, but the protection of bishops and cardinals from going to jail for obeying the pontifical secret and not reporting in accordance with civil laws. That change to canon law meant that the protection of children from abusive clergy, given by civil reporting laws, depended on whether they happened to be living in a State which had such laws. For children in jurisdictions that didn’t, it was just their bad luck. It is also interesting that the “repressive regime” excuse has not been written into the manual, although it may be that the broad scope of “negligence in office” might permit the Vatican to take that into account where the non-reporting bishop resided in Saudi Arabia or Iran.

Law and culture have always had an intimate connection, and the changes to the law by the abolition of the pontifical secret and the possibility of a bishop being punished under canon law for a cover up, marks a change in culture since the 1917 Code of Canon Law and Crimen Sollicitationis of 1922 which threw out 15 centuries of canon law requiring abusive priests to be treated as criminals, punishable in this life and not just as sinners able to be forgiven for the next. While a requirement to report to the civil authorities would have been stronger, the manual reflects a change in culture whereby bishops can be made accountable in canon law for covering up. At long last, the welfare of child victims has been written into canon law, albeit indirectly, as the paramount consideration in preference to the protection of clergy perpetrators.

It took 6 years for Pope Francis to make this relatively simple but significant change. Now we have to wait to see whether or not he accepts the other 9 recommendations of the Royal Commission for the reform of other aspects of the Church’s dysfunctional disciplinary system.

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