Updated: February 06, 2014 08:18 PM GMT
Pope Pius XI. Picture: Wikimedia Commons
It comes as little or no surprise that the Vatican has been accused of covering up cases of priests committing child sex abuse. What may be more surprising is the fact that, since 1922, secrecy and cover-up have been official Vatican policy, instigated by nothing less than papal decree.
There was hardly a news source in the world this week that did not give headline coverage to the UN’s scathing condemnation of the Vatican’s testimony on child abuse to its Committee on the Rights of the Child. The condemnation came in the UN’s official response, released on February 5, to the Holy See’s submission. The language was unstintingly blunt.
"The Holy See has not acknowledged the extent of the crimes committed, has not taken the necessary measures to address cases of child sexual abuse and to protect children, and has adopted policies and practices that have led to the continuation of the abuse by and the impunity of the perpetrators," was one of its most damning sentences.
The UN is, of course, an organization that normally deals in diplomatic niceties. But here it effectively endorsed vociferous victim groups such as SNAP (Survivors Network Of Those Abused By Priests), as well as the massed ranks of Church-baiters, and accused the Vatican of a cover-up.
The fact is, though, that this cover-up has not been caused by underhand dealings or the incompetence of bishops – although it cannot be denied that, in some cases, they too have played a part. It is the direct result of papal decrees issued since the time of Pius XI in 1922.
Since the 4th century to varying degrees, clergy had the legal right not to be tried in the civil courts for their crimes but to be tried in the Church’s own canonical courts. That right had virtually disappeared by the 19th century. Secrecy under the papal decrees created a de facto privilege of clergy that had the same effect. If the State courts did not know about these crimes, there would be no State trials and the matter could be treated as a canonical crime in the Church courts.
Relatively speaking, this was something of an innovation. For not far short of a millennium, canon law used to decree that after degradatio - the Church equivalent of a dishonourable discharge - priests found guilty of child sex abuse were to be handed over to the civil authorities for further punishment.
Decrees to this effect were issued by Pope Innocent III (1198), Pope St Pius V (1566 and 1568), the Fourth and Fifth Lateran Councils (1215 and 1514) and the Council of Trent (1551).
But this changed drastically in 1917 with the first Code of Canon Law, a sweeping reform that discarded canons that were regarded as no longer relevant, and kept or modified those that were. The canon that ordered priest child sex abusers to be handed over to the civil courts was among the ones rejected.
That paved the way for Crimen Sollicitationis, the fateful decree of Pope Pius XI in 1922, which overturned the earlier policy of cooperation and imposed the strictest secrecy on any allegations of child sex abuse against clergy.
Crimen Sollicitationis was never officially published. Indeed, the document itself stipulated that it must be kept in a locked safe, with the bishop and his chancellor having the only keys.
As an ultimate irony, it had the effect that reporting to the police with any information obtained through a Church investigation would lead to automatic excommunication that could only be lifted by the pope.
Statements made between 1997 and 2002, from top ranking Vatican officials, cardinals and bishops have insisted that canon law prevents bishops from reporting pedophile priests to the police or that it was in some way immoral to do so. Two cardinals, Castrillón and Rodríguez, went so far as to state that a bishop should go to jail rather than report a pedophile priest.
In the 1990s, a number of bishops in the United States, Ireland, Britain and Australia wanted an exception to pontifical secrecy to allow reporting of all allegations of sexual abuse against clergy to the police. The most that the Holy See has conceded, via a concession to the United States in 2002, and to the rest of the world in 2010, was to allow reporting where local civil law requires it. But in many countries, no civil laws require the vast majority of sex abuse allegations to be reported. These include the United Kingdom, Germany, Austria and New Zealand, most parts of the United States and Canada and every state in Australia, other than New South Wales.
When Bishop Scicluna, the Holy See’s representative, appeared in January before the United Nations Committee on the Rights of the Child, he was asked why the Church did not require the disclosure of all allegations. Scicluna said that “education is the key to empowerment. Every local church has a moral duty to instruct people about their rights.” In other words, it is up to the victim to report the abuse, not the Church.
In Ireland in 2010, after the Murphy Commission found there had been a widespread cover-up of child sex abuse in the Dublin archdiocese, Pope Benedict wrote a “Pastoral Letter to the People of Ireland.” The Murphy Commission had said harsh things about canon law and the requirements of secrecy, and found that “the structures and rules of the Catholic Church facilitated” the cover-up.
Pope Benedict ignored this criticism, and attacked the bishops for failing to use “the long established norms of canon law” to deal with these priests. But his letter wrote the script for a second cover-up: blame the bishops, apologize to the victims and hide the involvement of six popes, who, since 1922, had ordered, maintained and confirmed the status quo: Pius XI, Pius XII, John XXIII, Paul VI, John Paul II and Benedict XVI himself.
This papal involvement started to come under scrutiny in around 2006 with newspaper articles and television programs, like the BBC Panorama investigation entitled Sex Crimes and the Vatican.
A number of them alleged that secrecy imposed by canon law prevented bishops from reporting allegations of sexual abuse to the police.
The media rumblings prompted a Vatican spokesman to state that pontifical secrecy did not prevent reporting to the police and only applied to the Church’s “internal procedures”.
It is true that pontifical secrecy did only apply to the Church’s “internal procedures, but virtually all the information that the Church had about clergy sexual abuse came from its “internal procedures”. It was that information that pontifical secrecy prevented going to the police.
Issues of secrecy became significant at the parliamentary inquiry in Victoria and will become important at the Australia’s Federal Royal Commission. The Church’s 150+ page submissions to the parliamentary inquiry in Victoria and to Australia’s Federal Royal Commission have presented chronologies of important reports, and civil and canonical legislation from 1961 onwards, dealing with child sex abuse.
But there is no mention of the 1962 reissue of Crimen Sollicitationis. The 1983 Code of Canon Law and Sacramentorum Sanctitatis Tutela of 2001 and its revision of 2010 are discussed, but with no mention of their requirement of pontifical secrecy.
At the Victorian parliamentary hearings, Australian bishops accused their predecessors of “effectively facilitating” child sexual abuse, of being “naïve” and making “terrible mistakes.” But everything their predecessors did, misguided as it was, followed canon law.
In October the Truth, Justice and Healing Council, which speaks on behalf of the Church at the Federal Royal Commission, told the Australian community that it had been “kept in the dark for too long” about child sex abuse in the Church. The Council’s CEO went on to claim that the Council’s submission was “the most comprehensive document ever produced by the Church dealing with child sexual abuse. It is a warts-and-all history, going back many decades.”
Yet this history makes no mention of the biggest wart of all, canon law and pontifical secrecy. People are being kept in the dark about canon law, the cornerstone of the cover-up, not just in Australia but everywhere.
Meanwhile, pontifical secrecy still prevails. The de facto privilege of clergy will continue wherever the Church leaders can get away with it.
Kieran Tapsell is a retired lawyer with degrees in Theology and Law. His book, Potiphar’s Wife: The Vatican Secret and Child Sex Abuse is to be published in May 2014.