THE Catholic Church for some 1500years recognised that simply stripping a priest of his status as a priest was not a sufficient punishment for the sexual abuse of children.
Canon law from the 12th century decreed that he should be dismissed from the priesthood and handed over to the civil authority for punishment in accordance with the civil law.
A commission set up by Pope Pius X in 1904 drafted a uniform code of canon law by discarding papal and council decrees that were no longer relevant, modifying others and creating new ones.
The 1917 Code of Canon Law discarded the decrees requiring priests who sexually assaulted children to be handed over to the civil authorities.
Five years later, Pope Pius XI issued his 1922 decree, Crimen Sollicitationis, imposing the “secret of the Holy Office”, a “permanent silence” on all information the Church obtained through its canonical investigations of clergy sex abuse of children. There were no exceptions allowing the reporting of these crimes to the civil authorities.
In 1962, Pope St. John XXIII reissued Crimen Sollicitationis. In 1974, Pope Paul VI, by his decree, Secreta Continere renamed ‘‘the secret of the Holy Office’’ ‘‘the pontifical secret’’, and it continued to apply to the sexual abuse of children under the new 1983 Code of Canon Law.
In 2001, Pope St. John Paul II confirmed the pontifical secret under some new procedures, and in 2010, Pope Benedict XVI expanded its reach by applying it to allegations of priests having sex with intellectually disabled people. In 2010, the Holy See allowed a restricted form of reporting to the civil authorities but only where the civil law required it.
In most parts of the world, and in every state of Australia, apart from NSW, there is no such requirement to report in the vast majority of cases. The pontifical secret still applies where there are no such reporting laws.
The policy of secrecy may not have been so disastrous for children had canon law’s internal disciplinary procedures been adequate to dismiss such priests. But they were not.
Canon law required bishops to try and reform such priests before dismissing them. In his 1983 Code of Canon Law, Pope John Paul II imposed a five-year limitation period that effectively meant there would be no canonical trials of sex-abusing priests.
It also gave such priests a Catch-22 defence: a priest cannot be dismissed for paedophilia because he is a paedophile.
The more children a priest abused, the less likely it was could he be dismissed.
In November 2009, the Murphy Commission in Ireland examined all the above matters, and found that ‘‘the structures and rules of the Catholic Church facilitated’’ the cover-up of sexual abuse in the Archdiocese of Dublin, and severely criticised the secrecy imposed by canon law and its capacity to discipline priests.
In March 2010, Pope Benedict wrote a Pastoral Letter to the people of Ireland, and ignored the Commission’s criticisms of canon law. Instead he blamed the bishops for the cover-up, and for not applying ‘‘the long-established norms of canon law’’.
The submissions made by the Victorian Church to the Victorian Parliamentary Inquiry and by the Australian Church to the current Royal Commission follow the same script: there is no mention of the pontifical secret or the inadequacies of the canon law to dismiss these priests.
There are theological reasons behind this reluctance to face the unpalatable truth. Martin Luther claimed that the only source of divine inspiration was the Bible, a view influenced by the corruption of the Renaissance Popes.
The Catholic Church could explain the “bad popes” under the bad apples in the barrel theory: the Holy Spirit does inspire the Church to lead the world to salvation even through sinful popes like Alexander VI with his string of mistresses and eight children.
But now there is hard evidence that six popes since 1922, two of them now saints, maintained and expanded a system of cover-up of child sexual abuse by clergy through canon law, in order to save the Church’s reputation.
These were not “bad popes” of the Renaissance kind.
An unintended consequence of this policy was an increase in damage done to children, a crime that the Church’s founder thought was so bad that those responsible should be thrown in the sea with millstones around their necks.
Kieran Tapsell is a retired Sydney lawyer with degrees in theology and law. He is the author of Potiphar’s Wife: The Secret of the Holy Office and Child Sexual Abuse