Kieran Tapsell: The Nestor Case

The Catholic Church hierarchy has now accepted that its attempts to cover up the sexual abuse of children by clergy facilitated further abuse. But there was a second reason for the increase in the abuse – the canonical disciplinary system was dysfunctional. It was dysfunctional enough prior to 1983, but Pope St. John Paul II made it useless with his 1983 Code of Canon Law. It became virtually impossible to dismiss these priests under the Code. They remained priests, and took advantage of their positions of power and authority to continue their assaults on children.

But if you read the submission of the Victorian Church, oxymoronically named, “Facing the Truth”, to the Victorian Parliamentary Inquiry and the submission by the Australian Church to the Royal Commission on Towards Healing, described by the CEO of the Truth, Justice and Healing Council, Francis Sullivan as “the most comprehensive document ever produced by the Church dealing with child sexual abuse…a warts-and-all history, going back many decades,” you would get the impression that canon law had nothing to do with it.  The Australian bishops followed Pope Benedict’s example in his Pastoral Letter to the people of Ireland, and blamed their predecessors who, they said, were “naïve” and made “terrible mistakes”. All canon law needed, their submissions suggest, was a bit of tweaking.

In his more than 40 blogs on the TJHC website, Francis Sullivan has never mentioned problems with canon law, until a masterful understatement in his blog of 26 June 2014 when discussing the Nestor case in the Wollongong diocese: “This case demonstrates how, in the past, canonical issues have struggled to keep pace with the realities of how to deal with sex abuse cases in Australia.” He rightly praises Bishops Wilson and Ingham who said in evidence that if the Apostolic Signatura had affirmed the decision of the Congregation of the Clergy to reinstate Fr Nestor, they would have resigned as bishops. The transcript of the hearing and the exhibits illustrate the tortuous canonical path. Even the appeal to the Signatura took 5 years to be heard. The evidence of Archbishop Wilson and Bishop Ingham was a breath of fresh air. In marked contrast to their Victorian counterparts at the Parliamentary Inquiry, they were prepared to point the finger where it deserved to be pointed: at canon law and the Vatican Congregations administering it.

Nestor was finally dismissed in 2008, nearly 20 years after complaints were first made against him. He was convicted by a civil court in 1996 of sexual assault of a boy, but an appeal was allowed against that conviction, and in the meantime, there were further complaints about his behaviour. The bishops tried to use the Towards Healing processes to deal with him. That revealed a fatal flaw that had been identified by Professor Patrick Parkinson a number of times: a protocol such as Towards Healing cannot work if it is inconsistent with canon law. Without a formal approval of Towards Healing by the Vatican (which it never had), a priest can simply ignore a bishop’s decrees if there is some inconsistency with the canonical procedures.

Francis Sullivan says in his latest blog:  “These days the Vatican processors (sic) are far more streamlined.” Are they? Towards Healing has still not received the recognitio (formal approval) of the Vatican.  It still remains, as Cardinal Castrillon correctly called it, ‘a piece of paper’, despite the fact that the Vatican in 2011 called for national bishops conferences to submit their protocols on sexual abuse, presumably for approval. None have so far been approved.

The so called “streamlined” procedures are said to have begun with the reforms of Cardinal Ratzinger in 2001. It still took 7 years from the introduction of those reforms to dismiss Nestor. Fr Gannon in Victoria had been sentenced to imprisonment four times (in 1995, 1997, 2000, and 2009) for sexual crimes against children, but Archbishop Hart still could not convince the Vatican to dismiss him in 2012.

Even the best legal systems can sometimes have problems of unacceptable delay and pettifogging procedures, but the Nestor and Gannon cases, as well as the recently unearthed Milwaukee cases suggest that these problems are systemic in the canonical system. The only real way to test whether there has been any improvement is an independent inquiry into the 4000 plus cases dealt with by the Congregation for the Doctrine of the Faith since 2001. The United Nations in its concluding observations on the Report of the Holy See on the Convention against Torture required it to provide data on its investigations of such matters. Whether it will is a matter to be seen.

In view of Francis Sullivan’s apparent recent discovery that canon law really was a problem, his smooth assurances of streamlining cannot be taken seriously. The Murphy Commission in Ireland in 2009 highlighted the dysfunction in the canonical system, and the canons that have caused virtually all the problems are still there, unchanged in the Code. Sister Moya Hanlon, a canon lawyer, told the Royal Commission that there is a 10 year embargo on reporting decisions of the Congregation of the Doctrine of the Faith. So even if these canons are being “reinterpreted” by the Congregation, no one knows for ten years what the reinterpretations are.

One of the most eminent canon lawyers from the United States, Nicholas Cafardi stated in 2010 that “no legal system…can be effective when its highest value is secrecy… when changes are made in the law, the revision needs to be clearly announced and explained…Secret laws serve no one.” Secrecy still rules in the Vatican and that means that the public can only be fed spin. An independent inquiry into how the Vatican has handled these cases (including the reporting or lack of it to the civil authorities) is the only way to find the truth.

Kieran Tapsell is a retired lawyer with degrees in theology and law and is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (2014 ATF Press).

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