On 5 December 2013, the Vatican announced that it had set up a new Committee on sex abuse and that the “the initiative was also in line with the zero tolerance approach of Pope Emeritus Benedict XVI.”
Pope John Paul II has rightly been hailed for his contribution to bringing down the Soviet Union. But another thing he brought down was any chance that the Church’s canon law might prevent priests from sexually attacking more children. Pontifical secrecy under canon law prevented bishops from reporting any information they had obtained in a canonical investigation of child sex abuse to the police. But the problem might not have been so bad had John Paul II not rendered the Church’s internal disciplinary laws useless for dismissing sex abusing priests. Canon law had its faults before 1983, but under the new Code, it was hopeless.
In recent enquiries in Australia, Church figures have variously described the chances of dismissing a priest for paedophilia through the canonical processes as “very difficult” (Cardinal Pell), “close to hopeless” (Bishop Malone) “very, very difficult” (Archbishop Hart) “impossible” (Bishop Manning) and the whole procedure was “unworkable” (Fr Brian Lucas).
Pope John Paul II introduced some procedural reforms in 2001 with the Motu Proprio, Sacramentorum Sanctitatis Tutela. Pope Benedict XVI revised them in 2010, but all they did was to simplify some of the procedures to return to the situation that existed before the 1983 Code. There was no change whatsoever to the problems that the 1983 Code created for dismissing a priest for sexually assaulting children. The problems are:
• The Vatican Catch 22 defence: a priest cannot be dismissed for paedophilia because he is a paedophile. (Canon 1321). The Murphy Commission in Ireland referred to three cases where appeals had been upheld in Rome on the grounds that the priest was diagnosed as a paedophile, one of them being Fr. Tony Walsh, a notorious serial paedophile who features in the documentary Mea Maxima Culpa.
• The requirement to use “pastoral” methods to reform the priest prior to putting him on trial for sex abuse (Canon 1341). This was the reason that priests were sent off to treatment centres and shifted around – canon law required that attempts be made to reform him before he was even put on trial.
• The standard of proof for dismissal of a priest is “moral certitude”, a standard equivalent to the criminal standard of proof under Australian, English and United States law (Canon 1608).
In any coherent legal system, where a particular law is found to be defective or inadequate, the legislature will change the wording of the law so that those involved in enforcing and applying it know that they have to act differently. If a “zero tolerance” approach were to be adopted, it should be written into canon law. The procedural reforms of 2001 did not change the requirements for dismissal and they are not “zero tolerance”.
If the Vatican believes that people’s behaviour will change without a change in the wording of the law, then canon law, the oldest continuing legal system in the Western world, has been corrupted into what Humpty Dumpty said to Alice in Wonderland, “words mean what I choose them to mean, neither more nor less.”
Despite all the Church spin that everything changed after 2001, it is not surprising that there seems little change in practice. When asked at the Victorian Parliamentary Inquiry, why it took 18 years to dismiss Fr Desmond Gannon from the priesthood, Archbishop Hart said steps had been taken as early as 1993 to dismiss him, but Rome required “absolute certitude as to what took place” before doing so. Gannon had been sentenced in Victorian courts four times (in 1995, 1997, 2000, and 2009) for sex crimes against children, but four convictions beyond reasonable doubt were not enough to satisfy the “absolute certitude” of the Vatican. Despite Hart’s assertion that everything had changed after 2001, he was still having problems getting the Vatican to dismiss Gannon in 2011.
The Australian bishops were not the only ones to have had this kind of problem after the so called “reforms” of 2001. The recently released documents from the Archdiocese of Milwaukee confirm that the Vatican still had this reluctance to dismiss even when the priest was a serial paedophile and agreed to voluntary laicisation. And in three other cases where the priests refused to consent to laicisation, the directions from the Congregation for the Doctrine of the Faith were to (pastorally) ask them again to consent.
In 2003, Cardinal Francis George of Chicago, regarded as one of the American Church’s leading intellectuals, wrote an article, “Law and Culture” in the Ave Maria Law Review stating that if you want to change a culture (he was referring to racial discrimination in the United States), you have to change the law, because law entrenches and deepens a culture. Justice Ronald Sackville in his 2005 Federal Law Review article, “Courts and Social Change” made the same point. But that principle applies equally to canon law and its pervading culture of clericalism. If the law is not changed, (as Canons 1321, 1341 and 1608 have not been), one has to expect that Vatican bureaucrats will continue to interpret the law as they always had, and that before a priest is dismissed from the priesthood, “pastoral methods” must be used, “absolute certitude” is required, and the Vatican Catch 22 defence will still apply.
In 2002, the United States bishops requested Vatican approval of “zero tolerance” as part of its Dallas Charter. It was approved, but limited to the United States. If Benedict really did believe in zero tolerance, he would have applied it to the whole world after becoming Pope in 2005. He was then the absolute monarch with power to change canon law at the stroke of a pen. He didn’t lift a finger.
Kieran Tapsell is a retired solicitor and barrister with degrees in theology and law.