KIERAN TAPSELL. The Royal Commission and Religious Liberty


Three law professors, Michael Quinlan and Keith Thompson (Notre Dame) and Frank Brennan (ACU) have criticized any attempt by the Royal Commission into Institutional Responses to Child Sexual Abuse to discuss the doctrines and canon law of the Catholic Church on the grounds that such a discussion would breach religious liberty and the separation of church and state.

Quinlan, in a submission to the Royal Commission on Issues Paper No. 11, states that freedom of religion excludes assessment by the state of the legitimacy of religious beliefs or the ways in which they are expressed. A Commission finding that a religious belief contributed to child sexual abuse would not involve an assessment of the belief or its expression. It would only make a finding on causation. Quinlan says that it would be futile criticising Catholic doctrine, canon law, clericalism and celibacy because they are “deeply scriptural”, and one cannot be changed without affecting the other. He doesn’t explain how canon law’s provisions for dealing with sexual abuse by clergy are “deeply scriptural.”

Professor Quinlan argues that celibacy is not a factor in child sexual abuse, and he cites various studies in support. He asks the Commission to make a finding that there is no such connection, but if the Commission took a different view, he believes that religious freedom “ought militate against recommendations of change to the celibacy requirements.” Royal Commissions have no power to change any rules, private, state, national or international. They can only make recommendations, which can be ignored (and often are). But Quinlan claims that religious liberty prevents the Royal Commission from even criticising and making recommendations about celibacy. It is hard to see how religious liberty could be affected by findings and recommendations which the Church can ignore.

Associate Professor Thompson in his submission on Issues Paper 11 states that “to the extent that churches are also autonomous entities, nothing that the Commission may say about internal church governance is likely to have practical utility.” If that is the case, anything the Commission says about Swimming Australia’s internal governance which may have led to sexual abuse or its cover up is also useless. It is also an autonomous entity. He further says: “certainly findings and recommendations that criticize churches may influence public opinion, but it is submitted that such criticism is unconstructive.” It will only be unconstructive if the Church refuses to change anything. Thompson states that the separation of church and state requires that “no one church institution should dictate Australia’s political agenda, and the Commonwealth should not interfere in church governance.” But churches continually express their opinions of what the law should be, and likewise a Royal Commission is entitled to express its views about church structures and rules which contribute to child sexual abuse. Neither expression of opinion breaches the separation between church and state.

On 23 September 2016, Professor Brennan criticized the Commission for making a finding in the Neerkol case that various Church figures in Rockhampton lacked “compassion” towards the victims. He says it stepped into what he calls the “holy ground of religious belief”. The 1994 Church protocol required the diocese to adopt “pastoral action which is compassionate” in dealing with victims. The Commission found that in many instances the Church did not comply with its own protocol in that its response was not “compassionate”. The Commission was doing no more than courts do every day in making determinations of whether particular conduct complied with a statute, regulation, contract, policy or protocol. Compassion is not peculiar to Christianity, and can have a meaning in a protocol without reference to theology. Compliance with the Church’s own protocols was part of the “systemic issues” on which the Commission is required to focus.

Brennan states: “the Commission must highlight failures in the Church to protect children and recommend standards of compliance for protection in accordance with Australian community values. But the church must be left to its own resources to see how it can best comply consistent with its own theology and doctrine.”

According to this view, the Royal Commission can make findings on how the Church has failed to follow accepted community standards, but is precluded from finding that the Church’s structures, doctrines and laws contributed to that failure. This is contrary to the Commission’s terms of reference requiring it to examine “systemic issues” and causes. In Brennan’s view, it would not infringe religious freedom for the state to pass legislation requiring blood transfusions for the children of Jehovah’s Witnesses who might die without them, but a Royal Commission charged with investigating a high death rate amongst those children could not make a finding that it was caused by that particular religious belief. Such a finding would not prevent the Witnesses from continuing to believe that blood transfusions are contrary to scripture. Findings by this Royal Commission that the structures and rules of the Church were factors in the sexual abuse of children would not stop the Church ignoring recommendations to change them.

The Murphy Commission Report in Ireland found that the structure and rules of the Catholic Church contributed to the cover up in the Dublin archdiocese. In response to that Report, Pope Benedict in his 2010 Pastoral Letter to the People of Ireland ignored that finding and blamed the bishops for the cover up. There could not have been a better example of the exercise of religious liberty by the Supreme Pontiff in the face of criticism by a Commission of Inquiry.

Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (ATF Press 2014)

See also submission that, together with colleagues, we made to the Royal Commission. Our submission highlights the need to examine ‘systemic’ issues in the Catholic Church.


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30 Responses to KIERAN TAPSELL. The Royal Commission and Religious Liberty

  1. Ed says:

    Tapsell, who believes in moral relativism, does not have any moral authority to say anything is right or wrong, nor does anyone who believes in moral relativism – moral relativism and right or wrong cancel each other out.. Only those who believe in an objective Truth, can have moral authority – in theory at least. Until someone can convince me that moral relativism has authority or even logic, those who are moral relativists are mere sounding gongs.

    • Ed says:

      Mind you, the Church itself, while claiming Absolute Truth, has itself, at least culturally (or in real life) taken on moral relativism as all their treatment of the sexual abuse scandal and the general sexual activity of its clerics show: Celibacy is relative; harm is relative; covering up is relative; “All are punished”.

    • Kieran Tapsell says:

      I have no idea where you get the idea that I am a “moral relativist” (I am not, and have never claimed to be, at least in the way I understand the term). A true moral relativist would say that the Church was entitled to cover up child sexual abuse because that is part of its culture which should be respected. That has hardly been my position.

      • Ed says:

        A true moral relativist would also pick and choose what it is they want to defend or reject, based on their own version of truth. Not sure if I understand this correctly, so, correct me if I am wrong: You (Kieran) are an ‘outsider’ of the Church, like the Royal Commission, and believe in the separation of Church and State, but you also believe that the State (and you) has the right to influence/change or interpret Catholic theology and doctrine? Also, I know you have to believe this because you have written a book on it, but can I ask you something about this from a different angle: do you really think that had the ‘Pontifical secret’ not existed, none (or less) of the abuse in the past century would have happened? The cover ups which allowed for more abuse, have more to do with the high proportion of sexual activity of clerics/seminarians with both men and women, (which I am sure you must know about), and, therefore, the existence of a whole ‘bank account’ of readily available material with which to blackmail and silence any one of those cleric who might want to expose the abuse of children – Archbishop Weakland is a good case in point.

        • Kieran Tapsell says:

          I’m not going to be side tracked into a discussion of moral relativism, but I will answer your question: both sexual abuse and its cover up would have taken place without the pontifical secret, but its existence meant that the abuse was more extensive and the cover up more pervasive and universal. My reasons are set out in my book and my submission to the Royal Commission on Issues Paper 11: Canon Law: A Systemic Factor in Child Sexual Abuse in the Catholic Church, and in particular chapter 12 on law and culture. Blackmail as a factor is raised by James Miller in his book, The Priests, but its role depends on the extent to which the bishops were not celibate. A few examples do not make it a factor.

          • Ed says:

            Yes, perhaps the moral relativism issue is a distraction; However, the issue of blackmail is not confined to “a few examples” as you put it: This from Richard Sipe – :

            35. Denial and rationalization of sexual activity by priests and bishops is deeply engrained and institutionalized within the secret clerical system. These defenses result largely because sexual activities of various sorts are so common within the community of bishops and priests, not because they are rare phenomena.

            36. Most of the sexual activity of priests and bishops is not contrary to the civil laws, namely, masturbation, cross gender dressing, viewing some pornographic materials, etc. and non-harassing consensual sexual activity with adult women and men who are free of any power differential or psychic vulnerability,

            37. Bishops and priests are motivated to keep their own sexual activity secret, or try at least restrict knowledge to as few confidants as possible. The protective shroud of secrecy that shields them is threatened if they are too active in examining and exposing the behaviors of others.

            38. Additionally, a significant proportion of priests introduces candidates for the priesthood to sex. In my experience and studies 10% of priests report that they had some sexual contact with a priest or fellow seminarian in the course of their studies. This is a prominent fact in the histories of priests who abuse minors. This activity also forms a basis for a network of priests sexually aware of each other’s personal sexual proclivities, behaviors and past activity. This forms a formal and informal tangle of possible blackmail. I have seen that very word used in correspondence between a bishop and the Vatican.

            39. Broad based sexual activity within the celibate system surrounds and protects priests who do abuse minors. It motivates other priests who clearly suspect abusers of their activity from responding to obvious signs, symptoms, red flags, and taking reasonable action and reporting the behavior. They fear their own sexual lives, albeit not illegal, will be exposed….
            42. Bishops and superiors most frequently irresponsibly and negligently dismiss rumors without reasonable investigation. Bishops, many of who also fear exposure of their own sexual activities have continued to exclude themselves from oversight in the directives they instituted in 2002 to deal with the problem of abuse by priests and other church employees.
            This is cultural and deviant secrecy, not canonical. If Pontifical and cultural secrecy like this are combined, then we would have a fuller understanding of what is going wrong with this whole issue.

          • Ed says:

            Just one more question, Kieran: Why is your preferred target the institutional Church and canonical laws rather than the sexual activities and possible compromising of clerics as a result, as a cause for the cover ups? In this sense, is there some element to at least sexual relativism or situational ethics? Is it a case of, let’s just leave private sexual activity of clerics/anyone out of this unless of course that sexual activity involves children? I suppose Secular Law vs Canon Law is what your best at, though. Just wondering.

          • Ed says:

            Why was that post removed?

          • Ed says:

            Sorry, my mistake, it hasn’t. Ignore these last two little posts, thanks.

      • Ed says:

        My statement about you being a moral relativist is one I would use for any secularist/agnostic/atheist – I just cannot get my head around how not having a central core belief cannot be anything but relativist. Truth is subjective – isn’t that what all the current secularist/feminist/gender/ethical theory teaches or at least, believes? So, what is right today maybe wrong in the next generation and vise versa? And depending on which camp you are in – outsider or insider – will determine whether you get marginalised, rejected or even have the law book thrown at you. I’m not being flippant about this; I don’t know which makes the most sense – objective (external to society) or subjective truth. So, you, as a secular person, or a legally established body (the Royal Commission) has the right today to demand or suggest the Church change it ways, but the Church now, is no longer seen as having the right to ask this of secular society. I suppose it all depends on who is perceived to be the most ‘moral’. Sorry, all have the ‘right’ to challenge each other, for now at least, but I’m talking culture here more than laws, for now at least. But secular law is coming into it more and more, where that ‘right’ is being eroded. While the Church’s right to challenge secular society is being mocked (perhaps today with some justification), your right to challenge the Church will no doubt be applauded – I challenge the Church as well, but perhaps my challenge is to its own relativistic culture, in this case the sexual culture of the Church and its clerics particularly when it involves children, not the Church laws which no one seems to follow much anyway – what’s right or wrong is all relative to a person’s conscience after all, is it not?

        • Kieran Tapsell says:

          I had no “target”, other than to look for an explanation for why there was a cover up. My expertise is in law and not sociology. I had no evidence about the sexual practices of clergy, except for the writings of Richard Sipe and Andrew Greely, and that was confined to the United States. I don’t doubt that in some cases the possibility of blackmail may have been an issue for reasons stated by Sipe but it still depends firstly on bishops breaking the celibacy laws and secondly that the accused priest knows about it. Even if you accept that 50% of bishops were known to be having affairs (which I doubt), the issue of blackmail is not relevant for the other 50%. That’s why, for me, the secrecy imposed by canon law was much more relevant because every bishop is required to follow it. But it is not just the question of compliance with canon law that is in issue. There is also the intimate connection between the law and the culture that it reflects. The culture embedded in a law becomes internalised. When you get in your car and drive on the left side of the road, you don’t think: I have to drive on the left hand side because the law says I have to. You do it automatically. I am also sure that there were bishops who automatically covered up sexual abuse without thinking about canon law, but the avoidance of scandal is written all over Codes of Canon Law and the pontifical secret is one expression of that. My criticism of canon law is not confined to the pontifical secret, but to the whole canonical disciplinary system. If these priests could have been dismissed, fewer children would have been abused, quite apart from any issue of reporting.

          • Ed says:

            Well, I suppose it depends on what you believe comes first – the law or the activity that requires the law. I’m pretty sure that most laws come into being to deal with deviant behaviour or popular pressure. So, in this way law and sociology are completely intertwined. To ignore one is to never have the full picture and to not have a deep misunderstanding of reality. Then you need to ask, well, is the law actually protecting those it supposedly seeks to protect (the less powerful) or is it set up to protect those who make the laws (the powerful). By the way, it’s not 50% of bishops but 50% of vowed clerics/religious. And sexual impropriety isn’t the only ‘sin’ that bishops/clerics commit – skeletons come in many forms. So in a way, we are both on the right track – the Pontifical secret and much of canon law, does protect the powerful more than the powerless, it seems, and as such, needs to be challenged. I choose to fight the culture, not the law – how can I change the existing laws of such powerful men. I’ll leave that up to you to try – good luck with that.

            Perhaps, if there is a groundswell of people horrified by the sexual activities of so called celibate moral holy men and women, then there may also be a groundswell to make those in power do something about it, include change the laws. So is this such an issue for you because it is about the victims of abuse, and/or about one elite group in society wanting to lessen the power of another elite religious group in society? I believe that exposing the sexual activity of clerics/Priests/Brothers/Nuns/seminarians, the turning a blind eye to this, and then its covering up when exposed, and the presentation to the public of how all this impacts the lives of those on the receiving end of such activity. To me, at least, this would be a far more effective way of making the Church accountable to both people and the law. This is also the main tactic of the Royal Commission. Now, IF the Pontifical secret and other canon laws militate against change, then yes, they, too need to be exposed, which you are doing, and doing well. But why minimise my approach as your last comment suggest? There would be no need for institutional laws if firstly people weren’t acting deviantly. But, then ‘deviancy’ is relative, isn’t it – THAT”S THE PROBLEM.

          • Ed says:

            One more thing: It may only take 5% of sexually active bishops or others in power, to cover up the sexual abuse of clerics. That 5% or even 1% covering up to hide their own indiscretions, can then result in the sexual abuse of hundreds and hundreds of children. I do agree with you that had the pontifical secret not existed (along with the canons that promote clericalism, deviant clerics would have been dealt with more openly which may have lead to less abuse. But as I said above, had the crimes not been committed in the first place, the laws wouldn’t be needed. I just think the Royal Commission’s way – exposing the ‘sins of the fathers (and brothers and sisters, and those that cover up) works faster. And let’s not forget the victims/survivors themselves and the incredible job they have done, as well as the media and films and documentaries. Exposing clerics and their deviancies by exposing one’s own deeply damaged life, may be more confronting but I do think it has been more effective, because it is more human, something people can really identify with. However, we need the academics and legal system as well and now hopefully, the two fronts can cause a deep change in the Church – in both Law and culture. But that needs true humility, a virtue I don’t see much of anymore.
            Hopefully, all these may well cause the Vatican to change its Canon Law – hopefully.

            And I do have to say, dedicating years to research and writing a book on one particular topic you feel very strongly about could be interpreted as ‘targeting’, but let’s call it ‘focussing’ instead. You have to do this or books just don’t get written.

  2. Patricia Boylan says:

    The Royal Commission into Institutional Responses to Child Sexual Abuse would be obliged to investigate the Catholic Churches ‘running a parallel system of criminal justice unbeknownst to and deliberately hidden from the public, police and parliaments, in which the guilty went unpunished and the lips of the victims were sealed – by forced oaths and confidential legal settlements’.

    As Sydney born Geoffrey Robertson QC explains the ‘plain facts that are now emerging [across the world] show that sexual abuse of children by priests in the Catholic Church has been at a level considerably above that in any other organization, and that has been covered up by many Bishops with the support and at the direction of the Vatican.

    The Australian human rights lawyer explains that ‘statehood’ attributed to the Holy See on the strength of its ownership of a block of land in Rome…gives the Roman Catholic Church all sorts of advantages denied to other religions and to NGO’s.

    Most significantly, the Holy See’s status at the UN as the only ‘non-member state’ means it can do pretty much all that a state member can do, except vote.

    Central to this situation is the role played by Vatican regulations – doctrines and canon law of the Catholic Church.

    Any Royal Commission investigation would require a systematic examination of the doctrines and canon law of the Catholic Church.

    This is not about spirituality. It’s about criminality.

    I note USA Catholics are still failing to get a response from the Vatican (sept 2016).

  3. Stephen K says:

    Once again, I agree with Kieran Tapsell. But to press the point: an inescapable problem with Father Frank Brennan’s approach is that his complaint ends up sounding like ‘you shouldn’t criticise the Church because others are at fault too.” For an institution claiming to be vested with divine dogmatic and infallible moral authority, this defence can hardly avoid being seen as contemptible and is extremely disappointing. That there are Church-employed individuals – individual priests, and religious – who, at particular critical times, displayed compassion and a sense of justice in victims’ behaviour does not in any way mitigate or deflect the rightful criticism of those leaders and officials with the greater authority who did not. The Church authorities publically present themselves as the face of Christ, the source and centre of compassion and justice, theologically. There is nothing wrong – intrinsically – with having such a belief, although it rings hollow if they fail. However, what is fatal to any such defence is what may reasonably be discerned as having been the motivational cause of the failure – a desire to protect the public face and influence of the institution over the well-being of victims. This is hypocrisy and cynicism writ large. As far as I can see, the crime of clerical sex abuse is one thing; the alternately craven, cynical, weak-minded, hypocritical concealment is quite another, and the truest testimony to its commitment to its claims of moral authority and infallibility would see Church officials of all ranks eschew all degrees of post-Commission protest and take seriously to heart any of its criticisms of its “motivational” beliefs. Until that happens, no-one can be confident that there has been any of the necessary institutional metanoia.

    • Frank Brennan says:

      No fair minded, or even rational, reading of my many utterances on the royal commission could be construed as ‘sounding like “you shouldn’t criticise the Church because others are at fault too.”‘ This just shows what a difficult realm of public discourse this is. Yes, I am a Catholic priest. But I have constantly being saying, even before the royal commission was called, that the Church needs to be called to account and that the Church has needed state assistance to get its house in order. I draw the line at the state presuming to rule on theology and doctrine. And I insist that the state apply the same exacting standards for child protection as it would impose on any other institution. That’s because we don’t live in a theocracy (not even a secular theocracy), and because all of us are the better for maintaining a separation of church and state. I will continue to look to the royal commission for help in the church getting its affairs in order so that children are adequately protected, but I will not be looking to the royal commission (or those making submissions to it) to redefine doctrine and theology.

      • Stephen K says:

        Father Brennan, there is as far as I know no suggestion that the Royal Commission would or should go so far as to redefine doctrine or theology as such – and that is not what people are saying. What they are saying is that if the Royal Commission sees that particular doctrines or theology influenced both the responses by bishops and superiors to sex abuse and the culture of deference and silence within the Church, then it not only can but must say so. Of course, it will be up to Church people, not to state officials, to actually make any appropriate changes to any such culpable doctrine or theology, and no doubt Church people may refuse to make any changes in reply. It is not, however, as far as I can see, up to the Church to rule on what caused or contributed causally to its responses to sex abuse. That is the Royal Commission’s task. I don’t see why doctrines and theology should be quarantined from scrutiny into causes. It would be like a patient insisting that any diagnosis of their illness not take into account a key possible factor, like genetics, habitual diet or so on.

  4. Frank Brennan says:

    The Neerkol case study of the royal commission covered the church and the Queensland government. Most of the report focuses on the church. Kieran Tapsell says, ‘The Commission was doing no more than courts do every day in making determinations of whether particular conduct complied with a statute, regulation, contract, policy or protocol.’ Really? Unlike a court, I think the commission was applying a very different test to the church than it was to the government. To the church which went to great lengths to deal with the victims, the commission applies the ‘compassion test’. To the government, it simply applies ‘the law’ acknowledging that the state (like the church) could plead the statute of limitations. In the first instance, the state (unlike the church) did plead the statute of limitations. The report relates to an orphanage where most of the children were the ultimate responsibility of the state which was their legal guardian. The state entrusted the running of the orphanage to the church. The orphanage closed in 1978. Most of the report is taken up with analysing what the authorities did between 1993 when complaints of abuse were first published in a book and 1997 when government inquiries were instituted. The report details criticisms of church personnel lacking compassion between 1993 and 1997. It has very little detailed criticism of government personnel during that time basically because they did nothing at all. The commission does report:
    ‘We are satisfied that the Queensland Government failed to adequately supervise and protect from harm the children for whom it was guardian in the orphanage by: not ensuring adequately trained staff were employed as department inspectors; and not ensuring that it provided adequate scrutiny over the circumstances in which the children were living. ‘
    ‘We are satisfied it is likely there were no departmental policies or procedures issued by the Queensland Government for how institutions such as the orphanage should carry out their obligations to report abuse.’
    There is no assessment offered of the Queensland government’s compassion. When claims for compensation were made, ‘The Queensland Government made it plain it would rely on the statute of limitations and was not involved in any settlement of the civil litigation.’
    On the other hand this is the commission’s description of the church response:
    ‘By June 1999, the Sisters and the Diocese had settled with 72 claimants regarding the abuse that they suffered at the orphanage. The total amount paid to the former residents at that time was $790,910.
    ‘Ultimately, in excess of $1,000,000 was paid to members of the NASG. The Sisters and the Diocese made equal contributions to the payments.
    ‘The Sisters funded the continued operation of the PSO and the payment of compensation to former residents through the sale of the whole of the Neerkol property on December 2000. The Sisters initially took a loan against the conference centre and property at Neerkol and eventually sold the whole of the Neerkol property in December 2000 to repay the loan.
    ‘The Sisters and the Diocese subsequently settled two other civil claims by former residents of the orphanage – AYR and AYP. These claims were separate from those brought by the NASG.
    ‘We are satisfied the Diocese and the Sisters settled compensation claims with former residents despite legal advice they were in a strong position to defeat the claims because of the age of the claims. The Diocese and the Sisters contributed equally to the monetary amounts.’
    Kieran, I am simply asking that the same standards be applied to the church as to the state, regardless of the particular motivational beliefs or ideals of the church.

    • Kieran Tapsell says:

      In suggesting that the Royal Commission should apply “the same standards…to the church as to the state, regardless of the particular motivational beliefs or ideals of the church”, you are asking it to ignore one of the core requirements of its terms of reference, namely to focus on systemic issues (Clause f). “Compassion” was not just a motivational belief or Church ideal, it was a term written into the 1994 protocol which everyone in the Church was supposed to follow. Clause h further requires the Commission to consider such protocols and how they protected or failed to protect children in institutions. A continuous disregard of the 1994 protocol was a systemic failure. I don’t have any problem with your complaint that the Commission concentrated too much on the Church’s failures and not enough on those of the State. The Church was far ahead of the State. At least the Church had a protocol. Micah Projects, on behalf of the Neerkol victims, in its submission to the Commission on Issue Paper No. 11, described the Commission’s findings against the State as “weak”. That criticism is not my beef.
      My disagreement is over the much more serious claim that the Commission had trespassed “on the holy ground of religious belief and practice” by making findings that Church personnel in Rockhampton had not acted with “compassion”. You wrote: “I have no problem with church people or other individuals adversely judging church leaders for a lack of compassion… But I don’t think it’s the job of a royal commission. If it is the job of the royal commission, why do they stop at compassion? Why not also offer judgments about whether the responses are loving, merciful and self-sacrificing?” The reason to me is obvious: these two requirements do not appear in the 1994 protocol for dealing with child sexual abuse. But the word “compassion” does. As your own words suggest, that term is capable of being interpreted by people other than those in the Church. It has as a secular meaning. You might have had some legitimate complaint on the church/state issue if the Commission had made a finding that the actions of Church personnel were not “reflective of God’s love for all”, which also appears in the protocol, because that would have involved the state making a judgment on a theological issue.
      My disagreement with your article goes further than the finding on “compassion” because I understood you to say that, consistent with the separation of church and state, the Commission could not make findings that Church structures and rules, (such as celibacy or the canonical disciplinary system, to use just two examples) contributed to child sexual abuse. Was I wrong in reading it that way?

      • Frank Brennan says:

        Yes, very wrong Kieran, and not for the first time.
        My point is that ‘Catholic theology and doctrine [are] beyond the competence of individual commissioners; it is beyond their jurisdiction’. I have said, ‘Of course, the commissioners have not only the right but also the duty to report in light of the evidence on how all institutions, including the Catholic Church, might comply with appropriate standards for the protection of children.’ I concluded, ‘The commission must highlight failures in the Church to protect children and recommend standards of compliance for protection in accordance with Australian community values. But the church must be left to its own resources to see how it can best comply consistent with its own theology and doctrine.’

        I readily concede that there may be aspects of Church structures and governance which are shaped in part by Catholic theology and doctrine. I, like you, think the commission should highlight aspects of church structures and governance which militate against the protection of children. But it is not for the state to insist on changes to structures and governance inconsistent with Catholic theology and doctrine (for example by insisting that the governance of a diocese no longer be overseen only by ordained celibate men – and yes I am one who would support such a change!). And it is not for the commission to apply tests such as compassion, love or mercy to the Church when it does not apply the same tests to state institutions.

        As I have said, ‘Should the Church, like any other institution, not find itself able or wanting to comply with appropriate standards, the State would be entitled to limit the Church’s role in relation to children. But the Commission cannot trespass into the realm of recommending changes to Catholic theology and doctrine, even if some Catholics and others take the opportunity to put submissions which challenge that theology and doctrine.’

        Yet again Kieran, I think you have constructed an elaborate straw cleric to then knock it down. I could take the Neerkol findings of the commission more seriously if there had been some balanced praise for women like Di-Anne Rowan who exuded compassion to victims who were so grateful that they stood and applauded her at the end of her evidence, not that you’d get that impression from the report.

        • Kieran Tapsell says:

          If there was any “elaborate straw cleric”, Frank, it arose from your own words. I can only rely on what you wrote, which you have now qualified with: “I readily concede that there may be aspects of Church structures and governance which are shaped in part by Catholic theology and doctrine. I, like you, think the commission should highlight aspects of church structures and governance which militate against the protection of children.” If those words had appeared in your article, I would not have raised the matter. Thank you.

        • Brian Coyne says:

          As I read Kieran Tapsell, Frank, what he has been basically calling for is for the Church to return to the interpretation of Canon Law that prevailed for centuries up until early in the 20th Century where offending clerics and religious were handed over to the civil authorities to be prosecuted. He has argued that the so-called “cover-up” is a relatively recent development in the history of the institution. Is calling for a change in Canon Law, or for a recommendation (from the Royal Commission) that the Pope abolish or rescind the Pontifical Secret, be classified (in your terms) as “recommending change to Catholic theology and doctrine”?

          • Brian Coyne says:

            Perhaps I should have qualified that last sentence a little more. As I understand it, the so-called Ponitifical Secret covers a whole range of matters that are to kept confidential or secret – such as the procedures in the election/selection of bishops. All institutions and organisations have corporate or commercial-in-confidence “secrets” and which need to be protected in some way. Legal privilege between a solicitor or barrister and their client is another example. What Kieran Tapsell seems to be arguing, in his book and elsewhere, is that the use of this secret or confidence is inappropriate when it comes to crimes involving the sexual and other forms of abuse of minors. My question to Frank Brennan, is whether such a recommendation from a Royal Commission — for the rescinding of the Ponitifical Secret in matters related to the abuse of minors — offend against the important concept of separation between Church and State. Kieran Tapsell, it seems to me, is arguing that it has been this confidentially or secrecy which is one of the prime systemic issues that has led to the institutional “cover-up” of the abuse of minors.

          • Frank Brennan says:

            Brian, thanks for your question.

            Recommending the abolition or rescinding of the so-called ‘pontifical secret’ would not be recommending change to Catholic theology and doctrine. If it still exists and if it were still practised, the ‘pontifical secret’ is not a matter of theology or doctrine.

        • Peter Johnstone says:

          As you say, Frank, “the commission should highlight aspects of church structures and governance which militate against the protection of children.” This could be the most valuable role for the Royal Commission given the failure of the Church, in Australia and universally, to recognise the role of its dysfunctional governance in protecting paedophiles rather than children. An organisation that acts contrary to its mission in order to avoid scandal has lost its way and needs to reform its governance and particularly its structure and culture. It’s not enough for the Church to apologise for its grave errors: it must look to the cause of such fundamental failing in its church structures and governance, failings which are evident in many other aspects of the Church’s life and have lead to increasing alienation of Catholics, particularly our youth. The Royal Commission should be encouraged to comment on these matters.

          • Ed says:

            ” it must look to the cause of such fundamental failing in its church structures and governance”. Yes, it must do this but what we have at present is a rather myopic perception of that cause – the Pontifical secret. What seems to be coming out more in all the cases of the Royal Commission is a culture of sexual activity of its clerics and with this a lack of ability to respond with conviction to any sexual abuse. In other words, if as Sipe claims, that only 50% of clerics at any one time are being ‘celibate’, then it not only comes to a position that clerics who live in glass churches shouldn’t throw stones, but also a deep sense in such clerics of ‘who am I to judge’ the sexual activities of another cleric, and if I do then maybe my own sexual exploits will be uncovered. A cleric/seminarian indulging in sexual activity or having done so in their clerical past, may well lack a certain conviction needed to do anything about other clerics who are sexually active. However, should a bishop who has nothing himself to hide, be made aware of an abusive cleric, there are other Canon Laws which I believe deserve a much attention as the Pontifical Secret. These have to do with another separation, not of church and state but clerics and laity, where Bishops are required by Canon Law, to provide clerics with a special (and higher) privilege over the laity even when dealing with clerical abuse. It is from such Canon laws that clericalism, (as opposed to pastoral ministry), is born and remains firmly footed.
            “Clergy form part of the hierarchical structure of the Church, which of its nature calls for respect and obedience within the hierarchical structure. Corresponding to this obligation on the part of clergy is the obligation binding on diocesan bishops, for example, that they have special concern for their presbyters (c. 384) and indeed, for all their clergy. In cases of sexual misconduct this relationship of obedience and respect on the cleric’s side, and special concern on the bishop’s, is often sorely tested. Yet it is the standard the canon law holds both cleric and bishop to observe” (Provost 1992).
            If THIS canonical/clericalist ‘cause’, and, perhaps even more so, the sex culture ’cause’ was given equal weight to the ‘Pontifical secret’ in the minds of church critics, then perhaps we might be getting somewhere. But what I fear is that because particularly the ‘cause’ of clerical sexual activity, most sexual activity being considered by the culture of today to be more or less ‘ok’, and for liberal Catholics, even OK for clerics, then it, as a cause, it is a sort of sacred cow, that cannot be questioned, except when children are involved. But I say again, go over all the cases of the Royal Commission and see how much clerics ‘knew’ about other clerics’ sexual activity stemming from seminary days and, no doubt, confessionals across the world, and ask yourself whether common sense requires that this has got to be one of the MAIN ’causes’ of the failure of church structures and governance which militate against the protection of children. And as Kieran has often said, in this, the Church shows itself to be just like any other human organisation, and one, in this case, that has wandered very far from its more ‘scared and holy’ origins. As such, the State has every right to then intervene or challenge THIS particular culture of moral hypocrisy and how THAT kind of ‘secrecy’ has resulted in the horrific culture of sexual abuse and its covering up. After all, this has more to do with clerics and those who wish to cover up, deviating from their own canons and theology rather than the canons and theology itself. Whether clericalism and Canon Law is a deviation from the teachings of Jesus, that’s another issue.
            Provost, J. (1992). ‘Some Canonical Considerations Relative to Clerical Sexual Misconduct’, The Jurist 52: 615-641.

    • Ed says:

      ‘We are satisfied the Diocese and the Sisters settled compensation claims with former residents despite legal advice they were in a strong position to defeat the claims because of the age of the claims. The Diocese and the Sisters contributed equally to the monetary amounts.’
      Oh, if only this were true for the ‘fathers’ as Sr Angela Ryan calls them. (think Ellis to name but one). And let’s not forget the Brothers as well. No, there is still too much resistance from too many angles to believe that ‘compassion’ is in any shape or form, is the norm for the Church supposedly founded on it. The glossy fronts of the church say they’ve changed, but the lived reality of victims/survivors still too often tell very different stories. The Royal Commission is not yet over. However, I suspect the Church will see this as yet another blimp in history that they will weather. Until there is a genuine metanoia, one that is unambiguous and one which victims/survivors can attest to, then we need to keep fighting for the values of the Gospel to replace the values of clericalism. To be honest Frank, I don’t know still where along the continuum you are as so much of this debate here; it always seems to be is so much from the head, about laws, institutions, processes. In this, you and Kieran have something in common. I think that’s why people get turned off, as they do with politicians – you, Kieran, others, can’t seem to reach the heart, although I think you did on Q&A recently. That was great. This IS all about compassion, something that no one can legislate for or force. It’s got to be lived, felt, believed and able to be reciprocated. That’s what will convince people even of the truth of the Pontifical secret – how has any of this been able to be translated into compassion, something that reaches ordinary people, especially those who have been abused? Until then, such discussions will remain on a few al-be-it very good discussion websites like this one, but out of the sight of the ordinary person, who I suspect you do want to influence, still, do you not? In time…in time.

  5. Patricia Boylan says:

    One only has to review Catholic Diocesan Bishop’s obligation to the Vatican under canon law and its conflict with Australian laws (including other countries).
    Cardinals, bishops, prelate superiors, major and minor officials, experts and ministers of lower rank are under obligation of observing the papal secrecy.
    Research indicates the ‘trickle down’ effect impacts on diocesean church and education management of clergy sexual abuse.
    In 2013, the International Criminal Court in The Hague decided not to investigate or prosecute former Pope Benedict XVI and three other leaders of the Roman Catholic Church on allegations of covering up sexual abuse of children by priests. The court response was that the matter ‘did not appear to fall within the juridiction of the court’ and ‘some of the allegations’ fell outside the courts jurisdiction, which is to prosecute genocide and crimes against humanity and war crimes.
    The court stated, ‘the decision not to proceed may be reconsidered in the light of new facts or information’ and suggested the case could be brought to ‘appropriate national and internatonal authorities’.
    The United Nations Committee on the Rights of the Child report
    to the Holy See noted, ‘Some of the rules of canon law were not in conformity with the Conventions on the Rights of the Child.
    The Holy See had adopted policies and practices that led to the continuation of the abuse and impunity of perpetrators.
    The Holy See covered up known sex abusers and shifted them elsewhere.
    The Holy See had declined to provide the Committee with information on the outcome of its canonical disciplinary procedures.
    The Holy See had allowed a vast majority of abusers to escape criminal prosecution by its confidential disciplinary proceedings.
    The code of silence imposed on clergy under the penalty of excommunication meant that few cases of child sexual abuse were reported. The reporting to national law enforcement agencies has never been made compulsory and was rejected. In many cases the Holy See refused to cooperate with the judicial authorities’.

    In 2014, the United Nations ordered the Vatican to hand over files containing details of clerical sexual abuse allegations to police forces around the world.
    The UN continues to be concerned over the use of “diplomatic immunity” by the Holy See to hamper police investigations.
    In Sept 2014, the Holy See pubishes its response to the Committee on the Rights of the Child, it says it only has responsibility for the ‘handful of children residing in Vatican City’.

    In May 2014, Pope Francis declares ‘zero tolerance’, yet less than one third of priests against whom credible allegations of sexual absue of children had been made had been dismissed.

    In June 2016, Pope Francis set up a new tribunal with Vatican Congregations to discipline bishops.

    Church authorities rather than being instrumental in exposing the criminal abuse and the extent of the problem, have contributed to the abuse by not disclosing or responding or trivialising the criminal act.

  6. Stephen K says:

    Absolutely. If beliefs, doctrines, laws, policies, practices, selection criteria – whatever – can be identified as a cause of an institution’s poor response to abuse, then it is clearly within the Royal Commission’s scope to say so. Indeed the characterisation of a Church’s beliefs and doctrines as “holy ground” and the implication that the Church would be justified in refusing to accept any criticism of these, are themselves examples of the kinds of thinking that Church leaders appear to have relied upon to hide or protect or support offenders because they are simply a different arrangement of words that mean “We are holy, we are divinely commissioned, and to criticise us or bring us to account is the same as putting God on trial”. The Royal Commission was not established to identify the abusers, but to identify their protectors and why they acted or failed to act.

  7. Lynne Newington says:

    It doesn’t do much for Royal Commissioner Peter McClelland in my opinion.
    The church establishment is quick to run with pushing the government for a top up with financial redress [icluding TJH CEO Francis Sullivan] for crimes they committed considering the massive tax exemptions it receives and charitable status, and as yet no bishop has been charged for covering up for guilty clergy, the blame at the feet of deceased.

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