KIERAN TAPSELL. Secrets and the Royal Commission’s final report.

Dec 21, 2017

Media attention has been drawn to the recommendation in the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse that religious confession should not be exempted from civil law requirements to report child sexual abuse. However, of much greater practical significance is the recommendation that the Catholic Church’s pontifical secret should not apply to such abuse.

The media always likes a good stoush when big players, like Church and State, are involved. It is therefore not surprising that the media would concentrate its attention on the recommendation in the Royal Commission’s Final Report that priests should break the secret of confession in the case of child sexual abuse, while paying little attention to a far more relevant recommendation that the Church should abolish the pontifical secret over such crimes.

Both secrets, imposed by canon law, are permanent silences over the matters they cover – confessed sin in the case of the secret of confession and, in the case of the pontifical secret, allegations and information obtained through canonical processes about criminal sexual behaviour by clergy towards children.

The only difference between them is that canon law says that the secret of confession is “inviolable”, whereas in the case of the pontifical secret, the Holy See can grant a dispensation. The Royal Commission discovered that the Holy See was reluctant to grant such a dispensation after the Commission asked for copies of documents relating to the canonical trials of Australian clergy accused of child sexual abuse.

The Commission found that some Australian abusers did use the sacrament of confession as a means of quick forgiveness that made it easier for them to offend again. The role of the secret of confession in covering up that abuse has to be relatively minor compared to the pontifical secret that is still imposed by Art. 30 of Sacramentorum Sanctitatis Tutela.

The secret of confession only arises if the abuser happens to confess the abuse as part of the sacrament. The pontifical secret arises whenever Church officials receive a complaint about clergy sexual abuse of children, and an investigation is commenced as required by canon law. The Commission found that the Australian Church received thousands of such complaints, and they were rarely reported to the civil authorities with the result that more children were abused than would otherwise have occurred.

The Commission’s recital of Church history in its Final Report demonstrates that until the 19th century, and despite some cover ups, the official Church policy as expressed in canon law was that clerics who sexually abused children should be stripped of their clerical status, and then handed over to the civil authorities to be punished according to the civil law at the time.

In the 19th century that started to change. The Commission found: “The Church apparently became less willing to report clergy who sexually abused children to the civil authorities than it had been in earlier centuries, and less willing to dismiss them from the priesthood.” The 1917 Code of Canon Law repealed all papal decrees requiring such clergy to be handed over to the civil authorities, and then in 1922, the Instruction of Pope Pius XI, Crimen Sollicitationis, imposed the secret of the Holy Office on all information about the abuse. The Commission agreed with the opinion of John P. Beal, Professor of Canon Law at the Catholic University of America, that: “it is hard to avoid the conclusion that the overriding motivation underlying the imposition of the secret of the Holy Office, and later the pontifical secret, was to protect the reputation of the Church.”

The Commission stated that the Holy See’s view from 1922 until the early 2000s was that bishops and religious superiors should not report allegations of child sexual abuse to the civil authorities under any circumstances. That position was modified for the United States in 2002 and elsewhere in 2010 to allow reporting where there was a civil law requiring it. The Commission noted, however, that “the text of canon law itself has not yet been amended to explicitly reflect these changes”, and that the position in jurisdictions where there are no comprehensive reporting laws “also remains unclear.”

Despite the lack of clarity in some situations, the Commission found that “aside from the exception for reporting to civil authorities in jurisdictions where there are reporting laws, the pontifical secret currently applies to allegations of child sexual abuse made against clergy, as well as canonical proceedings relating to those allegations.”

It recommended that the Australian Catholic Bishops Conference should “request that the Holy See amend canon law so that the pontifical secret, as outlined in Secreta continere and currently imposed through Sacramentorum sanctitatis tutela, no longer applies to allegations relating to child sexual abuse.”

This recommendation from the Commission is no different to the request to the Holy See made by the United Nations Committees on the Rights of the Child and against Torture in 2014, a request which Pope Francis rejected. It is also no different to the requests made from 1996 onwards by the Irish, Australian, British and United States Bishops Conferences to the Holy See to allow reporting of all allegations of child sexual abuse to the civil authorities, irrespective of whether there are civil reporting laws, requests which have been consistently rejected by the Holy See, the most recent being in 2013 in a response to the Australian Catholic Bishops Conference.

Meanwhile, on 13 December 2017, the English Catholic weekly review, The Tablet, reported that the members of the Pontifical Commission for the Protection of Minors recently “have argued (that) Francis should review the use of (the) ‘pontifical secret’ imposed on the Church’s internal legal handling of abuse matters.”

The Royal Commission has now joined forces with two United Nations Committees, four national Catholic Bishops Conferences and now the Pontifical Commission for the Protection of Minors in acknowledging that the pontifical secret has been, and is, a systemic factor in the continuation of child sexual abuse within the Church.

Pope Francis’s moral authority to speak on matters of climate change, inequality and poverty, about which he can do nothing personally, is seriously undermined while he refuses to lift his pen to change canon law that imposes a cover up of child sexual abuse in the Church.

Kieran Tapsell is a retired civil lawyer and the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse and 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 Feb. 9, 2017.

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