Book offers insight into canon law's role in sexual abuse crisis

By Thomas P. Doyle
National Catholic Reporter
April 22, 2015

http://ncronline.org//books/2015/04/book-offers-insight-canon-laws-role-sexual-abuse-crisis

The legal system of the Roman Catholic church is probably the longest-running in history. Canon law, the commonly used name for this system, has been accorded near magical status by some of its practitioners, who are firmly convinced it has an answer to every problem facing the institutional church.

The true believers have claimed that the clergy sex abuse debacle could have been avoided had the church only used its own canonical system. Foremost among them has been Cardinal Raymond Burke, formerly head of the Apostolic Signatura, the church's highest court. In 2012, he addressed a canon law convention in Kenya and said that the church has a "carefully articulated process by which to investigate accusations of sex abuse," and that the ongoing problem of clergy sex abuse was because the discipline of canon law was not followed.

Burke's assertion and those of others making similar claims are far removed from the reality of canon law's role in the church's abysmal failure to deal with the epidemic of sexual misbehavior.

On the other side of the reality divide, bishops who actually tried to deal with priest-perpetrators according to the church's rules found themselves more times than not stymied and stonewalled by a confusing and contradictory array of canonical regulations.

I have been a canonist long enough to know that canon law never had a chance. My belief is based on the fact that canon law is a legal system in service to a monarchy. By its very nature, the primary goal is to protect the monarchs. There is no separation of powers in the Catholic church, hence no checks and balances.

It doesn't take a seer with a crystal ball to know what happens in a society when there are no restraints on the sources of power. The short history of the contemporary chapter of the church's problem with destructive sexual behavior has proven beyond a doubt that the institution's main concern is the protection of the hierarchy and not the victims.

Kieran Tapsell is an attorney from Sydney. Two years ago, when the Australian Royal Commission Into Institutional Responses to Child Sexual Abuse, which is investigating institutions such as schools, churches, sports clubs and government organizations, was getting into full swing, Tapsell contacted me for help with a submission for the commission. We exchanged several emails and I sent him a number of documents, all related to canon law and sexual abuse. His submission grew into a book, Potiphar's Wife: The Vatican's Secret and Child Sexual Abuse.

The title comes from the biblical story of Joseph, who was sold as a slave to Potiphar, who worked for the Pharoah. Potiphar's wife tried to seduce the young man, and when he refused, she accused him of rape. Joseph ended up in prison.

In 2002, Cardinal Miguel Obando y Bravo of Nicaragua likened the victims of clergy sex abuse to Potiphar's wife: "The reasons that drove Potiphar's wife to lie are pleasure, spite and unrequited love. I don't want to deny the drama of the authentic victims of sexual abuse ... but one can't hide the fact that in some cases we are dealing with presumed victims who want to gain large payoffs on the basis of calumnious accusations. ... The church in the U.S. is living through a heroic moment, of bloodless martyrdom, of persecution."

Of the many spiteful statements made by various and sundry hierarchs, this is surely one of the more ignorant and harmful.

Potiphar's Wife significantly enhanced my own understanding of the complex and often arcane role played by canon law in the abuse crisis. It clearly demonstrates that the church's legal system has not only been a hindrance to justice for the victims, but an enabler to the perpetrators.

Through my correspondence with Tapsell, I learned that he is a scholar with an extraordinary grasp of canon law, its spirit, sources and labyrinthine mechanisms. He has written the most comprehensive, insightful and accurate exposition of the canonical landscape yet to be produced. He takes a careful look at all of the relevant areas of canon law and comes up with a thorough description of some of the key points of contention, including:

• The nature and extent of the obligation to maintain secrecy;
• The origin and effect of the two versions of the Vatican decree on procedures, Crimen sollicitationis;
• The question of reporting cases of sexual abuse to civil law enforcement;
• The canonical barriers the bishops faced when trying to effectively move against priests who violate minors.

I found Tapsell's work enlightening on a number of key points, including his effective argument that Crimen sollicitationis died a natural death with the promulgation of the new Code of Canon Law in 1983.

One common defense of the hierarchy is that very few bishops received copies of either edition of Crimen sollicitationis, and that consequently it was largely irrelevant and unused. I have reviewed several thousand files of accused clerics over the past 27 years, cases from throughout the United States, Canada, Ireland, Great Britain, Italy, Mexico and Colombia. I have found a number of documents that were clearly part of the penal process mandated by Crimen sollicitationis. It would be close to impossible to determine how often this procedure was used, in all or in part, but it has been used.

Tapsell also demonstrates quite credibly that the American, Irish, Australian and British bishops' conferences tried without success to convince Vatican authorities to enact some crucial changes in canon law that would remove the hobbles and allow them to take effective action.

These attempts were made during the papacy of John Paul II and all were rebuffed. The refusals were based on John Paul's obsession with protecting priests and their rights, grounded in his highly mystical opinion of the nature of the priesthood.

The author and his publisher both told me that there had been a number of criticisms of the book by canon lawyers in Australia. I have searched high and low and found nothing in writing.

A positive review from a moral theology professor at The Catholic University of America was pulled from the Internet because, its author explained to Tapsell, he had received emails from canonists criticizing it.

Yet in the months the book has been out, there have been no critical rebuttals from canonists nor has anyone agreed to engage the author in debate. Once exception is Fr. Ian Waters, a canonist from the Melbourne archdiocese, speaking in his private capacity in Melbourne in October. (A copy of Waters' speech and Tapsell's responses can be found here.)

Potiphar's Wife is not a dry, academic treatise but a highly readable and engaging account of one of the most important and relevant aspects of the clergy abuse debacle. The author goes through the bewildering canonical swamp and brings his conclusions to life with real examples. This is not only a commentary on canon law, but an invaluable historical source. His description of the church's response through history is comprehensive, including all the major events and ecclesiastical pronouncements.

Potiphar's Wife is at times shocking and infuriating, but it is an essential contribution to understanding the byzantine and all too often contradictory response of the Catholic hierarchy and the Vatican to the most destructive force the church has seen since the Middle Ages.