Sexual abuse – don’t mention Canon Law! Guest blogger: Kieran Tapsell

Nov 25, 2013

Submissions and speeches by the Australian Catholic Church about child sex abuse, remind me of Fawlty Towers, where Basil asks his non German guests not to mention the war. In the Church’s case, the unmentionable is canon law, the law of the Catholic Church. In his speech at Ballarat on 20 November 2013, Francis Sullivan, the CEO of the Church’s Truth, Justice and Healing Council acknowledged that there had been cover ups, but, once again, failed to mention that canon law was behind it.

The Church submission, “Facing the Truth” to the Victorian Parliamentary Inquiry, has a chronology of 150 pieces of legislation, both civil and canonical, and references to inquiries, reports and Commissions from 1961 to the present. But the central document that created the legal framework for the cover up of clergy sexual abuse all over the world, the reissue of Crimen Sollicitationis in 1962, is never mentioned, nor is pontifical secrecy imposed by later decrees. Archbishop Hart admitted in evidence that he knew about Crimen Sollicitationis, so this omission could only have been deliberate.  The Truth, Justice and Healing submission of 30 September 2013 to the Royal Commission makes no mention of them either.

In 1994, a former seminary professor of mine, who became a bishop, had refused to hand over to the police a report from a canon lawyer about the sex abuse of children by a group of priests in his diocese. The end result was that a search warrant was issued, and his presbytery searched. This bishop was an admirable and honourable man. Why did he do that?

Fr Frank Brennan SJ recently expressed the same surprise about Archbishop Little of Melbourne who did not keep any notes of complaints of sex abuse by priests, and routinely shifted them around where more children were abused.  Brennan said this was “…devastating news for those of us who thought Frank Little to be a kind, compassionate, considerate, prayerful leader of his flock. And he was…” Why did this admirable man do that?

At the Victorian Parliamentary Inquiry, Bishops Bird and Connors poured the bucket over their predecessor, Bishop Ronald Mulkearns, the Bishop of Ballarat from 1971 to 1997. They said he had “effectively facilitated” child sexual abuse, that he was “very naïve” and had made “terrible mistakes” in dealing with two serial paedophile priests, Gerald Ridsdale and David Ryan. Yes, he had done all those things, but it was no coincidence that Mulkearns had a Doctorate in Canon Law, was a founding member of the Canon Law Society of Australia and New Zealand, and the initial chairman of the Special Issues Committee set up by the Australian Catholic Bishops Conference to find ways around canon law. Everything Mulkearns did as Bishop of Ballarat, misguided as it was, followed the provisions of canon law. He had taken an oath at ordination to obey canon law. Canon law “effectively facilitated” child sexual abuse as much as he did.

Cardinal George Pell at the same Victorian Inquiry criticised his predecessor as Archbishop of Melbourne, Frank Little, accusing him of “mishandling the issue”, but defended him by saying that there were “no protocols” in place and “no procedures” at that time.

There were protocols and procedures. For some 1600 years, from the 4th century to the present time, canon law has had protocols and procedures for dealing with the problem of the sexual abuse of children by clergy. Until a radical change to canon law in 1922, such priests were to be dismissed from the priesthood, and then to be handed over to the civil authorities for punishment according to the civil law. This was the effect of decrees of Popes Alexander III in 1179, Innocent III, (1198-1216), Pius V in 1566 and again in 1568, the Third and Fifth Lateran Councils of 1179 and 1514, and the Council of Trent in 1551.

But all that changed in 1922 when Pope Pius XI issued his decree Crimen Sollicitationis that imposed “the secret of the Holy Office”, on all allegations and information obtained by Church authorities about the sexual abuse of children, with no exceptions for reporting those crimes to the civil authorities.  Then, after his election in 1978, Pope John Paul II systematically reduced to a complete shambles the canonical disciplinary system for getting rid of paedophile priests, the end result of which was that a priest could only be dismissed with his consent.

The protocols that canon law imposed after the promulgation of the 1983 Code of Canon Law were: no reporting to the police; a 5 year limitation period; the requirement to try and cure the priest prior to putting him on trial; an impossibly complicated system for dismissing a priest; the requirement to apply canon law’s Catch 22 defence – a priest cannot be dismissed for paedophilia because he is a paedophile; the destruction of documentary evidence of the priest’s crimes; and the right of the victim to bring a “contentious action” for damages.

Like the Murphy Commission in Ireland, the Victorian Parliamentary Committee got it right. While accepting that these bishops made errors of judgment, the Committee said it was “unfair to allow the full blame to rest with these individuals, given that they were acting in accordance with a Catholic Church policy.”

In an earlier speech in Canberra on 22 April 2013, Francis Sullivan said, “The Australian community has been kept in the dark for too long.” He is absolutely right. The attempt by the Church to keep the community in the dark about canon law and the six Popes responsible for it continues.

Kieran Tapsell is a retired Sydney solicitor and barrister with degrees in Theology and Law.


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