Murder in the Cathedral in Australia

By James, Australia
The Catholica
February 23, 2013

http://www.catholica.com.au/forum/index.php?id=125126

Everyone is familiar with the story of the struggle between Henry II of England and Thomas a’Becket in England that ended with a’Becket’s murder in Canterbury Cathedral in 1170. Ken Follet’s novel, the Pillars of the Earth is narrated around this central event.

The disagreements between a’Becket and Henry were over a number of things, but the most significant was that Henry thought that clergymen who committed murder, robbed or stole, or sexually assaulted children should be dealt with by the secular courts.

At this time, there was a widespread practice called “privilege of clergy” whereby the ecclesiastical courts had exclusive jurisdiction over clergy. A’Becket wanted to preserve this right, and so the conflict. Henry, in a moment of exasperation, famously said, “Who will rid me of this meddlesome priest”, and someone took the hint and despatched the Archbishop of Canterbury with a sword blow to the head that spilled his brains on the floor of Canterbury Cathedral.

There is a similar struggle going on between the Church and the State over this very same thing, and it will soon be played out in the Australian Royal Commission on the sex abuse of children. There is also a bishop involved, Geoffrey Robinson, who, this time, is on the side of the secular State. He has become for the Church a “meddlesome priest”, but in this day and age it is highly unlikely that he will meet a similar sticky end.

One of the problems that the Church has had to deal with in its long history was that of priests soliciting sex in the Confessional. Various Council’s and Popes made declarations to deal with it, but the main document was Benedict XIV’s Sacramentum Poenitentiae (1741). Because the seal of confession was involved in any investigation of such a canonical crime, Pius IX in 1866 imposed absolute secrecy on the proceedings in an instruction issued by the Sacred Congregation of the Holy Office.

So far, so good. Confession is a matter for the Church, and soliciting sex, at least for adults, has never been a crime in civil society. And the Church has rightly regarded it as inappropriate.

But in 1922, this instruction from the Holy Office about “perpetual silence” morphed into a document called Crimen Sollicitationis that extended secrecy to the investigation of priests’ sexually assaulting children generally.

The document was reissued in 1962 by Pope John XXIII and signed off by Cardinal Ottaviani. The document had in large letters on the front of it: TO BE KEPT CAREFULLY IN THE SECRET ARCHIVE OF THE CURIA FOR INTERNAL USE. NOT TO BE PUBLISHED OR AUGMENTED WITH COMMENTARIES.

It also provided in Art. 11 that the “strictest confidentiality must be observed for all persons and in all things”, known as “the Secret of the Holy Office” had to be observed. The penalty for breach of this secrecy was automatic excommunication which could only be lifted by the Pope personally.

This instruction represented Canon Law for this type of problem until 2001 when Pope John Paul II, on the advice of Cardinal Ratzinger, signed off on the Motu Proprio Sacramentorum Sanctitatis Tutela, which required “pontifical secrecy”, which, in substance, was no different to the Secret of the Holy Office except that there was no automatic excommunication, just a punishment appropriate in the circumstances.

So what is the connection between all this and Thomas a’Becket? Well, the effect of the 1922 instruction was to create a de facto privilege of clergy. When a complaint was made to a bishop that a priest had sexually assaulted a child, he was obliged under Crimen to conduct an investigation, but was bound by the secrecy provisions, and there were no exceptions for going to the police.

The Church by 1922 had lost all significant political power, and all vestiges of “privilege of clergy” in the common law world had been abolished a 100 years before. It had no hope of having it restored with secular governments of the world. But it could achieve the same thing by the use of secrecy. If the State did not know about those crimes, then priests would not be brought before the State Courts and they would be dealt with exclusively in the ecclesiastical courts – exactly that Thomas a’Becket was trying to preserve back in the 12th century in England, but being quite open and candid about it.

In order to achieve this, not only did the evidence about the priest’s sex crimes against children have to be kept secret, but so did the process itself. Hence the instruction that no one was to know about it, other than the bishops who had to commence the canonical investigation.

This back door method of reviving the medieval practice of “privilege of clergy” was remarkably successful and it is only in the last two decades we have been finding out how successful it was. All over the world, the practice was the same, where victims and witnesses were sworn to life long secrecy and the investigating priests and bishops kept it all secret. The State didn’t know about these crimes, and so no prosecutions took place….until the victims started to complain, the proverbial hit the fan and there was public outrage.

The Church may have got away with it had they had punishments to fit the crime, but the most they could do was to defrock the priest. But even there, they set the bar to defrocking so high that it was almost impossible to achieve. Indeed, Bishop Manning told the recently set up Church inquiry into the Father F case, that unless the priest agreed to be defrocked, it wouldn’t happen.

But a further corollary of that was: if the priest can’t be defrocked easily, what were they going to do to him? Well, they moved him on to another parish, made him promise to seek treatment etc, and there he committed more crimes against children.

That’s when the “meddlesome priest” comes in. Bishop Robinson in 1994 was appointed by the Church to prepare a protocol for dealing with the abuse, because after a raid on a bishop’s presbytery in that year by the police, it looked like bishops might be going to jail for misprision of felony or its statutory equivalent.

That crime of hiding felonies from the police had been known to the law for 700 years, and was reaffirmed by the House of Lords in a case called Sykes v The Director of Public Prosecutions.

Bishop Robinson obviously had some competent civil lawyers working with him because he recommended that an exception be made in Canon Law to the secrecy provisions of Crimen to allow reporting to the police. Lord Nolan in Britain in 2001 made a similar recommendation.

It is possible for Canon Law to be changed for a particular area provided a resolution of the Episcopal Conference is approved by the Vatican pursuant to Canon 455. It’s called a “recognitio”. The Vatican never approved the resolution of the Australian Episcopal Conference called “Towards Healing”. Nor did it approve the recommendations of Lord Nolan, adopted by the British Episcopal Conference. The Secret of the Holy Office remained in Canon Law, with no exceptions for reporting to the police.

The stage was set for a monumental conflict between the Church and the State over this, but a remarkably fortuitous thing happened for the Church in Australia. For several years, Law Reform Commissions had been recommending the abolition of “misprision of felony”, mainly because the distinction between a felony and a misdemeanour was becoming messy and unworkable.

All States abolished the common law offence and only New South Wales retained a statutory form of it in S.316 of the NSW Crimes Act. The other States required either some positive act to impede a police prosecution or an agreement not to go to the police in return for some advantage. None of these things would apply where a bishop had knowledge of priests’ crimes and simply did not report it to the police. So, it was quite possible for bishops to observe Canon Law’s secrecy and not report these crimes to the police.

NSW was a bit different, because it had retained in statutory form “misprision of felony”, but the Church had an answer to that too: Canon 22 required bishops to break the civil law if it conflicted with Canon Law. Cardinals Castrillon and Rodriguez even said expressly in 2001 and 2002, that a bishop should go to jail rather than report a paedophile priest to the police.

In the 1990s, most States passed “mandatory reporting laws” requiring teachers, doctors etc to report if a child appears to be at risk. But none of these laws required reporting after the victim had turned 18. The vast majority of complaints about child sex abuse related to people who, on reaching adulthood, realised the damage that had been done to them as children.

So, it is not surprising then, that Deputy Commissioner Ashton at the Victoria Parliamentary Inquiry stating that of the 620 cases of child sex abuse dealt with internally by the Church, none had been reported to the police. The secret system of “privilege of clergy” had been remarkably successful, and it had been helped along by changes to the Civil Law.

In 2010, after there were scandals erupting everywhere over these secret trials of clergy, particularly in the United States, Pope Benedict XVI announced that in future, bishops should cooperate with civil authority. He didn’t specify what he meant by that, but in May 2011, Cardinal Levada who had succeeded him at the Congregation of the Doctrine of the Faith announced that each Episcopal Conference should bring in guidelines and amongst those guidelines had to be a provision that

“the prescriptions of civil law regarding the reporting of such crimes to the designated authority should always be followed.”

Note, that it does not say that bishops should always report such crimes to the police, but only where the law required it. In other words, if there was no civil law requiring such reporting, the system of secret ecclesiastical courts with their inadequate penalties would continue.

But not only that, Benedict XVI decided to expand his system of secret trials by including the possession of pornographic literature and priests having sex with mentally handicapped people amongst things to be dealt with by these secret courts.

In 1999, the NSW Law Reform Commission even recommended that S.316 of the Crimes Act be repealed:

3.58 The Commission disapproves of substituting a legal duty which is enforced by a criminal sanction for a moral one unless there are overall substantial benefits to society in doing so

.

The Commission recognized that there was a moral duty to report such crimes to the civil authorities, but the Church does not recognize that moral duty. In fact, the statements by some six senior Cardinals suggested that they moral duty was the other way – priests should not be reported to the police.

But the attitude of the Church is to say the least curious. It does not have the same attitude the “laity”, including religious brothers and nuns, who are not “clerics” under Canon Law. Needless to say, neither are Catholic lay school teachers. There are no secret trials prescribed for them under Canon Law.

Crimen and its secrecy provisions only applied to “clerics”, and the same is true of the 2001 Motu Proprio. The privilege really was for “clergy”.

But not only is the Church insisting on its secret trials for clergy, it will only agree to reporting to the police if there is a “legal” duty to do so. It will not recognize any moral duty to do so, and Canon Law will still be breached unless each country has laws specifically requiring reporting.

The Catholic Church has issued a challenge to secular societies everywhere: unless you pass specific laws requiring us to report clergy sexual abuse, we will continue to have our secret trials, and we will not be reporting to the police.

This is really the amazing thing: the NSW Law Reform Commission recommends the abolition of S.316 of the Crimes Act because it considers that citizens have a moral duty to report such crimes to the civil authorities, and that this attitude is so widespread in the community that there is no need for a law to enforce it.

Yet, the Church, on the other hand, not only rejects that moral duty but issues a challenge: unless you pass a law requiring us to do it, we won’t be doing it.

The outcome of this replay of a 12th century conflict is unlikely to end with a murder in the Cathedral. But it will end up with laws specifically aimed at the Catholic Church which uniquely demands the right to overrule civil laws in Canon 22. The Church is still catching up on matters of plain morality.

In the meantime, the “meddlesome priest” this time has sided with the State.