Pope Francis’ reforms the Church’s disciplinary system in response to royal commissionJun 8, 2021
One of the main reasons for the Catholic Church shifting around abusive priests was because its disciplinary system was dysfunctional. Far more children were abused than would have occurred if it had a decent one. The Royal Commission made recommendations for change, and Pope Francis has adopted some of them, but he has retained two of the most harshly criticized canons.
In its 2017 Final Report, the Australian Royal Commission into Institutional Responses to Child Sexual Abuse made recommendations for the reform of canon law, including the abolition of the pontifical secret over child sexual abuse by clergy, initiated by Pope Pius XI in 1922. In December 2019, Pope Francis abolished it.
The Royal Commission also criticized the canonical disciplinary system which made it virtually impossible for abusive priests to be dismissed. On 1 June 2021, when announcing the changes to that system in Book VI of the 1983 Code of Canon Law, a Vatican spokesman said, “In many places, punishments were mentioned only as a possibility, and the whole text gave the impression that it was almost merciless to apply punishments…Today…due to the examination of the abuse of minors, the atmosphere is different.”
The purpose of this article is to examine how much has changed.
Child Sexual Abuse as a “Moral Failure”
The Royal Commissioners were baffled by evidence given by Church leaders that they considered child sexual abuse to be just a “moral failure,” a view reflected and reinforced by the Code of Canon Law which included it in a section dealing with breaches of celibacy, as if it were no different to masturbation or a consensual affair with an adult. The Royal Commission’s Recommendation 16.9a was that child abuse should be “articulated as canonical crimes against the child, not as moral failings or as breaches of the ‘special obligation’ of clerics and religious to observe celibacy.” The Vatican has adopted this recommendation and has now listed child sexual abuse in the section for “offences against human life, dignity and liberty.”
Zero Tolerance of Child Sexual Abuse
The Royal Commission’s Recommendation 15.56 was that any person in religious ministry who is convicted of an offence relating to child sexual abuse should be dismissed from the priesthood or expelled from their religious order. The failure to dismiss priests was one of the things that survivors of child sexual abuse found particularly galling.
Pope Francis had several times claimed that both he and his predecessor had a policy of zero tolerance of child sexual abuse. This was not borne out by the Church’s own figures produced to the United Nations in 2014 which showed that only one quarter of all priests against whom findings of child sexual abuse were made had been dismissed from the priesthood. That’s 75% tolerance, not zero.
The Vatican has gone part of the way in adopting the Royal Commission’s recommendation. Canon 1398 now provides that anyone abusing a child or the mentally disabled, should be punished with deprivation of office, and “where the case calls for it, dismissal from the clerical state.” We may have to wait for another appearance of the Church before the United Nations to find out whether the dismissal rate has improved since 2014.
Disciplinary Proceedings against Lay People
Under the 1983 Code, disciplinary action in respect of child sexual abuse could only be taken against clergy and religious. With the decrease in the number of priests and religious, many of their functions were being taken over by lay people. The Royal Commission’s Recommendation 16.9b was that disciplinary action should be extended to any person holding a “dignity, office or responsibility in the Church regardless of whether they are ordained or not ordained.” The Vatican has adopted that recommendation in the new Canon 1398.
The Pastoral Approach to Disciplinary Proceedings
Canon 1341 stated that the bishop could only initiate disciplinary proceedings “….after he has ascertained that fraternal correction or rebuke or other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, reform the offender.”
Recommendation 16.11 of the Royal Commission was that canon law should be changed to ensure that this pastoral approach “is not an essential precondition to the commencement of canonical action relating to child sexual abuse.”
The new Canon 1341 provides that a bishop “must start a judicial or an administrative procedure for the imposition or the declaration of penalties when he perceives that neither by the methods of pastoral care, especially fraternal correction, nor by a warning or correction, can justice be sufficiently restored, the offender reformed, and the scandal repaired.”
The only difference is that the old Canon 1341 gave the bishop a discretion whether to start disciplinary proceedings against a priest even though he was satisfied that he could not be reformed, whereas now the bishop must start those proceedings. The change is unlikely to make much practical difference because being satisfied that the accused cannot be reformed is still a precondition to disciplinary action.
The Vatican’s Catch 22 Defence
Common law countries allow for a defence of insanity which may lead to an acquittal of a criminal charge if accused persons can prove on the balance of probabilities that at the time, they did not understand the nature and quality of the act or did not realise that it was wrong.
The canon law equivalent of the defence of insanity is “imputability.” Under the 1917 Code of Canon Law, the accused’s sanity was presumed unless there was a finding of “moral certainty”, that he was otherwise. That requirement was watered down in Canon 1321 § 3 of the 1983 Code to provide that the crime is not imputable where the insanity is “apparent.” The New Commentary on the Code of Canon Law says that the change reflects the 1983 Code’s “more pastoral thrust, since it enhances the penal rights of alleged offenders.”
The effect of this change was that in 1994 and 2000, two serial paedophiles, Tony Walsh and Patrick Maguire had their dismissals by a Dublin canonical court overturned in Rome on the basis that they had been diagnosed as paedophiles. The Roman appeal court interpreted Canon 1321 to reflect a Catch 22 defence: a priest cannot be dismissed for paedophilia because he is a paedophile. Canon law had become Monty Pythonesque. The more children a priest abused, the greater his chances of avoiding dismissal.
The Royal Commission’s recommendation 16.13 is that canon law be changed so that “a diagnosis of paedophilia is not relevant to the prosecution of or penalty for a canonical offence relating to child sexual abuse.”
The amended canon 1321 § 3 has made a slight change of wording, but the substance is the same: “imputability is presumed, unless it appears otherwise.” This brings to mind the comment of the Sicilian aristocrat in Giuseppe de Lampedusa’s novel, The Leopard: “If you want things to stay as they are, things will have to change.”
Onus of Proof
Canon 1608 of the 1983 Code provides that on any matter involving disciplinary proceedings, the standard of proof is “moral certainty,” the same as the criminal standard of proof in civil law, proof beyond reasonable doubt. The Royal Commission considered that this was not appropriate in disciplinary proceedings, and in its recommendation 16.55 it said that the standard of proof for child sexual abuse should be the same as in civil law, namely, the balance of probabilities. The Royal Commission’s recommendation has not been adopted.
Publication of Canonical Judgments in Child Sexual Abuse Cases.
The 1983 Code provides for publication of any judgment, but only to the parties. The Royal Commission in its Recommendation 16.16 stated that decisions in relation to child sexual abuse and the reasons for them should be published with appropriate redactions to avoid identifying the victim. The Vatican has not adopted this recommendation.
The Royal Commission’s recommendation 16.12 is that there should be no time limits under canon law for bringing disciplinary proceedings for child sexual abuse, and that the amendment should apply retrospectively.
The new Canon 1362 confirms the applicability of limitation laws passed in 2010. These provide for 20 years from the 18th birthday of the victim. The Congregation for the Doctrine of the Faith has the power to extend the limitation period, but it cannot be applied retrospectively.
An Australian Disciplinary Tribunal
The Royal Commission’s Recommendation 16.15 was for the setting up of an Australian Disciplinary Tribunal. The Vatican has not adopted this proposal, and the likely reason is that the documents produced in such a tribunal would be subject to subpoenas in the civil courts. The Vatican has been reluctant to produce documents relating to clergy sexual abuse to civil courts in the United States, Ireland, Australia and more recently in the United Kingdom.
Destruction of Documents
Canon 489 requires bishops to have a “secret archive” where documents relating to an accused priest who has died and those which are more than 10 years old are to be destroyed.
The Royal Commission’s Recommendation 16.17 is that the records in the Church’s secret archives relating to child sexual abuse should be retained for 45 years. The Church has not adopted this.
Other Recommendations not Adopted.
The Vatican has not adopted the Royal Commission’s recommendations regarding celibacy or priestly formation.
Some Welcome Changes
There were two changes to canon law that went beyond the recommendations of the Royal Commission and which are to be welcomed.
The old Canon 1395 did provide for disciplinary action against clerics for non-consensual sex. The new Canon 1395 extends that to cover situations where the sexual activity arose from “abuse of authority” which arguably is wide enough to cover analogous situations in civil society where doctors, psychologists and teachers can be charged with criminal offences or disciplined for having sex with their patients or students.
The new Canon 1398 creates a “grooming” offence in respect of children, those with disabilities and where there is an “abuse of authority.” The Royal Commission’s Report on Criminal Justice had recommended such grooming offences to be legislated throughout Australia, and the Vatican has seen fit to incorporate those proposals into canon law.
While some of these reforms to canon law are welcome, the minor changes to the language of Canon 1341 (the “pastoral approach”) and Canon 1321 (imputability) do not avoid the problem they have created.
It remains to be seen whether the Church’s courts agree with the Vatican spokesperson’s claim of a “new atmosphere” to arrive at a different interpretation of these two canons. However, as the Church has not adopted the Royal Commission’s recommendation as to the publication of canonical court decisions in child sexual abuse cases, we will probably never know until the next time the Church is required to hand over its records to another civil inquiry or the United Nations. The maintenance of secrecy over the Church’s disciplinary actions will not restore its reputation.