Sex abuse: the de facto privilege of clergy. Kieran Tapsell

Jan 15, 2014

On 29 December 1170, four armed knights from the Court of King Henry II of England entered Canterbury Cathedral. They had previously heard the King complain about the Archbishop of Canterbury, Thomas a’Becket, who was in dispute with Henry over “privilege of clergy”, the right of clergy to be tried exclusively in Church or canonical courts for any kind of crime. “Will no one rid me of this turbulent priest?” Henry is reported to have said.  Four knights of his Court took the hint, went to Canterbury Cathedral, and sliced the top off a’Becket’s head.

Privilege of clergy was whittled away over the years, and was finally abolished by the English parliament in 1827, but the Catholic Church has always hankered back to the 12th century when it had the exclusive right to try clergy for every kind of crime. Priests were special people, ontologically changed by God on ordination, and therefore deserving of special treatment. A secret canonical trial avoided “scandal”, which has a special meaning in Catholicism: the loss of faith when adherents realise that those who represent Christ are misbehaving badly.

In those countries where the Church exerted some influence, it has written some form of the privilege into the civil laws. The Vatican’s treaties with Latvia (1922), Poland (1925), Italy (1929) and the Dominican Republic (1954) provided that convicted clergy would serve their sentences separated from “lay people” or in a monastery. In Spain, Franco’s 1953 Concordat with the Vatican provided that a bishop could only be tried in a civil court with the consent of the Vatican, and clergy with the consent of the bishop. Any deprivation of liberty was to be spent in a religious house, not in jail, and the trial was not to be publicised.

Colombia’s 1973 Concordat with the Vatican provides that bishops cannot be tried by the State Courts, but only by Church Courts. Priests can be tried in State Courts, but the proceedings are not to be publicised. In 1993, the Colombian Constitutional Court declared the Concordat inconsistent with the 1991 Constitution, but the Vatican, as recently as 2007, insisted that the Concordat be honoured, that bishops should be above the law, and that trials of priests be held in secret.

In 1994 the Colombian Attorney General, Gustavo de Grieff started criminal proceedings against certain bishops, including Archbishop Castrillón for complicity with the drug trafficking FARC guerrillas. But he had to abandon the proceedings because of the immunity under the Concordat. Two years later Castrillón was called to Rome and appointed to head the Congregation for the Clergy, and was made a Cardinal in 1998. He remained in that post until 2006, playing a pivotal role in the strange modern re-run of the struggle between Church and State over which one was to try priests for sexually assaulting children.

While the Church could retain some elements of the privilege through the use of treaties with sympathetic governments, very few governments were sympathetic, believing that everyone should be treated equally under the law. But the Church could create a de facto form of privilege everywhere by the use of secrecy in its own canonical investigations. If the State did not know about the clergy’s sex assaults on children, there would be no State prosecutions, and the crimes could be treated as purely canonical ones to be tried and punished in the Church tribunals.

Castrillón had a colourful ecclesiastical career in Colombia before being called to Rome. He once boasted that he disguised himself as a milkman to hear the confession of the notorious Colombian drug lord, Pablo Escobar. It must have been a long one, because Escobar is reputed to have ordered the murder of 10,000 people. Most Colombian bishops refused to accept money from drug traffickers, seeing it as nothing more than money laundering. But in 1984 Castrillón admitted accepting money from Escobar, saying it was for “charitable purposes”, and to prevent it being used for “prostitution”.

In January 1997, Castrillon sent a letter through the Papal Nuncio to the Irish bishops telling them that their proposal for mandatory reporting of clergy sex crimes to the police “gives rise to serious reservations of both a moral and a canonical nature”. The canonical reservations were clear enough – pontifical secrecy applied to any such allegations. He explained the “moral” reservations in his September 2001 letter to the convicted French Bishop Pican, congratulating him for covering up a priest who had sexually assaulted a number of boys: the relationship between a bishop and a priest is a “sacramental” one, like a father and son, and that a bishop should prefer to go to jail than report a paedophile priest to the police.

On 2 June 2011, Castrillón gave an interview on Colombian CNN, in which he denied that there was any such thing as paedophilia, saying that priests who sexually assaulted children had just made mistakes, and all of them had been properly punished under canon law by being suspended, and if they “showed correction” they were shifted to another parish. It is little wonder that Cardinal Pell at the Victorian Parliamentary Inquiry said that Castrillón’s Congregation of the Clergy “did not get it”.

In 1170, the outcome of the attempt by Thomas a’Becket to preserve the de iure privilege of clergy was his murder in the Cathedral. The outcome of the Holy See’s attempt since 1922 to preserve a de facto privilege by the use of secrecy under canon law was much worse than the murder of one Archbishop. It involved the suicide of many hundreds of people who had been sexually abused as children by clergy whom the Church protected and hid from the civil authorities for no other reason than that they were clergy.

Canon law still imposes pontifical secrecy on allegations of clergy sexually assaulting children wherever there is no civil law requiring reporting, and in Australia, that means in the vast majority of cases.

Kieran Tapsell is a retired solicitor and barrister with degrees in theology and law.

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