Softening the pontifical secret

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The pontifical secret has been in the news lately because of comments by two of Pope Francis' conservative critics. In his second statement on the McCarrick matter, Archbishop Viganó admitted to breaching the pontifical secret by revealing some of the allegations against the ex-cardinal. 

Pope Francis

In a television interview, Cardinal Muller, the former Prefect of the Congregation for the Doctrine of the Faith cited the pontifical secret when declining to provide details of allegations of child sexual abuse against the late Cardinal Murphy-O'Connor. Muller alleges that Pope Francis ordered him to stop the investigation.

Justin Glyn SJ in his article What Canon Law is For (Eureka Street 8 August 2018) writes: 'Rules like the Pontifical secret, for instance, should be read in such a way as to protect the rights of the innocent and avoid false accusations but should not be used to obstruct justice for victims.' That is either a plea for what canon law should be, or it is a benevolent interpretation of the pontifical secret that is not justified by the words of Pope Paul VI's 1974 instruction Secreta Continere, is not consistent with the interpretation of the Roman Curia, and is not consistent with the findings of the Royal Commission.

In the Anglo/American civil law system, guidance to interpretation is provided predominantly by judgments in earlier cases, some of which are binding and others persuasive. In canon law, binding interpretation is provided by the legislature, that is, the pope and his authorised delegate, the Pontifical Council for the Interpretation of Legislative Texts. In the absence of such binding rulings, guidance is provided by ‘the jurisprudence and practice of the Roman Curia.'

From 1997 to 2002, five senior canon lawyers from the Roman Curia stated that bishops should not report child sexual abuse allegations against clergy to the civil authorities, two of them stating expressly that it breached canon law. None of these Curia officials or their successors have resiled from that interpretation of the pontifical secret. A letter of 22 February 2013 from the Congregation for the Doctrine of the Faith to the Australian Catholic Bishops Conference, advising it that clauses in its Towards Healing protocol for mandatory reporting to the civil authorities should not apply to clergy, is consistent with that interpretation.

Fr Glyn further writes: 'None of this suggests that canon law as it currently exists is perfect or measures up to justified community expectations…The absolute terms in which the Pontifical secret is currently expressed (prohibiting any reporting of cases in ecclesiastical courts while the cases are in progress)  is an example.'

The pontifical secret applies not just when such cases are in progress, but forever. It not only covers the information revealed in a canonical trial, but the allegation itself. The Royal Commission strongly recommended that it be abolished or amended to allow unfettered reporting of abuse to the civil authorities and not just where there are civil reporting laws.

 

"The cover up of child sexual abuse was in accordance with Secreta Continere, and with a particular interpretation of the Church's supreme law."

 

Confidentiality in legal proceedings is sometimes desirable. Cardinal Pell's trial is being held in secret, and for good reason. With modern means of communication, it is virtually impossible to prevent jurors from having access to commentary outside of the court room. However, once those trials are over, there will be public access to the evidence with suitable pseudonyms or redactions to protect the identities of witnesses, where that is appropriate. Canon law, however, requires a permanent silence over everything, even the decision itself.

There is another difference between canon and civil law. The final canon of the Code (C.1752) says that the supreme law of the Church is the 'salvation of souls.' The Royal Commission found that the motivation behind the pontifical secret was the avoidance of scandal.

As Archbishop Hart told the Victorian parliamentary inquiry, 'scandal' has a special meaning in the Church. It means the loss of faith when 'a person who is supposed to act in the place of Christ acts in the very opposite and this causes people a loss of faith.' Faith, in the Church's theology, is the key to the salvation of souls. The cover up of child sexual abuse was in accordance with Secreta Continere, and with a particular interpretation of the Church's supreme law.

It is understandable that canonists would try to find a kinder interpretation for the pontifical secret, given that the cover up caused more children to be abused, but in the canonical system, you cannot get away from the plain meaning of the words and the interpretation placed on them by the Roman Curia.

One can only hope that after the meeting of the heads of Catholic Bishops' Conferences in February 2019, Pope Francis adopts the recommendation of the Royal Commission on the pontifical secret, the same recommendation made in 2014 by the United Nations Committees for the Rights of the Child and against Torture and which Pope Francis rejected.

 

 

Kieran TapsellKieran Tapsell is a retired civil lawyer and the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse and of a submission to the Royal Commission into Institutional Responses to Child Sexual Abuse: Canon Law, A Systemic Factor in Child Sexual Abuse in the Catholic ChurchHe was also a member of the canon law panel before the Australian Royal Commission.

 

Main image: Pope Francis (Benhur Arcayan/Malacañang Photo Bureau)

Topic tags: Kieran Tapsell, pontifical secret, canon law

 

 

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Existing comments

Thanks Kieran. I think cannon law needs to either be abandoned or to be revised in light of Jesus' two commandments, essentially to love God totally and to love our neighbours as we love ourselves. Jesus never gave us canon law, but He did give us His two commandments of LOVE. There is no love in concealing child sexual abuse, or transferring paedophile priests to another parish where they can continue to abuse children. The Catholic Church needs to change radically if it is to be an authentic Christian church. Adopting the hierarchical, male-dominated, legalistic, model of the Roman Empire as an organisational model was one of its biggest mistakes. Jesus never ordained anyone, but virtually all the power in the Church is in the hands of ordained clergy, who range from saintly men to despicable paedophiles, with very few checks and balances. The pontifical secret needs to be abandoned outright, not softened. Paedophiles need to be exposed and charged for their criminal offences, not protected!
Grant Allen | 16 November 2018


As I understand, secrets are always in the service of power and are likely to be abused. Secrets are part of a power struggle and are usually broken. Confidentiality, on the other hand, is the result of respect and needs to be maintained. Pontifical Secrets, as any secrets, allow the hierarchical church to continue in a dominator model, and prevent it from becoming a servant church where there will be equality in dignity as well as accountability. Pontifical Secrets must collapse along with the hierarchical and dominator model. Let EQUALITY that was ushered in at creation, revealed by incarnation and restored at redemption be the reality for which we live and die for. The meaning here of hierarchy is of a ladder where some people are above and others below. This will promote racism and other hierarchies. If we speak of a composite system, or holarchy as used by Ken Wilbur, people can relate to one another as equals. Roles may be different. But all are equal as human beings. Authority is from within as given at creation. I guess God does not give anyone any other authority. This authority is first uploaded and later downloaded as required.
John Tharakan | 18 November 2018


Kieran Tapsell's article is a welcome contribution to the discussion on the Pontifical Secret. He is right that members of the Curia have adopted expansive interpretations of the secret. He also raises a very good point about the duration and scope of the secret. Nevertheless it should be noted that neither Secreta Continere nor the Norms on More Grave Delicts say anything about "scandal". Art. III of the former, dealing with punishment for violation, says that violation of the secret is to be punished "pro gravitate delicti eiusve damni" (according to the gravity of the damage inflicted). Art. 30 (2) of the Norms also says nothing about scandal but provides that "Whoever has violated the secret....and caused...harm to the accused or the witnesses, is to be punished with an appropriate penalty." It is clear - at least from the law itself - that the secret is intended to protect the parties to litigation. (It is true that Secreta Continere also extends the secret to other matters such as Vatican ciphers, where other considerations might apply, but these are not relevant here). I am not sure which "curial practice" Mr Tapsell has in mind which would provide an alternative interpretation. Fr Lombardi, the Pope's spokesman, is quoted by the Royal Commission as noting, "This means that in the practice suggested by the Congregation for the Doctrine of the Faith it is necessary to comply with the requirements of law in the various countries, and to do so in good time, not during or subsequent to the canonical trial" and the Bishops themselves, in response to the Royal Commission, have noted that they do not see a conflict between reporting requirements and the Pontifical Secret.
Justin Glyn SJ | 19 November 2018


Thanks Kieran, I totally agree with the comments expressed by yourself, Grant and John. Sadly Cannon Law has introduced into the Church the very abuses Jesus is reported to have condemned during his Ministry. The use of cannon Law not only 'protected' the Church against scandal, it also allowed those involved in ordained ministry to continue their abuses, confident that they were above the Civil Law of the land. As a Teacher for many years and as a layperson teaching in Catholic Schools, I was very aware that I was accountable to the Civil authorities for my behaviour towards the students placed in my care. As an Acolyte for over forty years, in my role as a visitor to the sick in my Parish Community, I am answerable to the Civil authorities concerning my behaviour towards venerable people . I have to have a criminal record clearance before exercising my ministry . Why then should the Clergy by reason of ordination, not so be accountable to the civil authorities?
Gavin O'Brien | 19 November 2018


Thank you Justin for your comments. My submission to the Royal Commission accepted that since 2002 for the United States and 2010 for the rest of the world, the pontifical secret does not prevent compliance with civil reporting laws. That was also the finding of the Royal Commission (Vol 16, Bk 2 p.705). It also found that this dispensation was limited to countries with applicable civil reporting laws, and where they don't exist, the pontifical secret applies. The "curial practice" I was referring to was the expansive interpretation given by the Curia especially in the years 1997 to 2002, and which seems to have been confirmed by the CDF's letter to the ACBC of 22 February 2013. If the Australian bishops were free to report all abuse to the civil authorities, even in jurisdictions with no applicable reporting laws, what was the point of telling them that clauses 39 and 40 of Towards Healing (which imposed mandatory reporting in all cases) could not apply to clergy, and that Sacramentorum Sanctitatis Tutela (with its pontifical secret) applied to them? Even if one accepts a softer interpretation of the pontifical secret, if Pope Francis wants to hold bishops accountable for cover ups, he must impose mandatory reporting to the civil authorities in order to comply with a fundamental principle of all legal systems that is expressed in canon 221 of the Code: no one can be punished except for breaking the law. At the moment, a bishop who does not report abuse to the civil authorities in a jurisdiction with no applicable reporting law is not committing any canonical crime, and is even obeying canon law on the Royal Commission's interpretation of the pontifical secret.
Kieran Tapsell | 19 November 2018


The Catholic Church ‘operates the world's largest non-governmental school system.’ It is Australia's largest private employer. In Australia, it educates more than 740,000 students and in more than 1,700 Catholic schools and employs more than 50,000 teachers. As Kieran noted more than 4 years ago, the UN released its shocking report demanding the Vatican immediately remove all clergy who are known or suspect child abusers. The UN committee stated it was concerned that "in dealing with allegations of child sexual abuse, the Holy See had consistently placed the preservation of the reputation of the church and the protection of the perpetrators above children's best interest, as observed by several national commission of inquiry." Parents with children in Catholic schools should be questioning, 'What is stopping Pope Francis, the Pontifical Commission for the Protection of Minors or Vatican Curia from adopting the recommendations made by the United Nation Committees for the Rights of the Child and against Torture?' In accordance with canon law, Bishops are directed to conceal clergy abuse unless there is a civil law requiring reporting. There is no mandatory reporting law for clergy in Queensland. This places Catholic education employees legal obligation to report child sex abuse in conflict with their autocratic employer, the Bishop. While Pope Francis fails to act, global governments must legislate to safeguard children where ever they live.
PBOYLAN | 19 November 2018


Its good to see Kieran Tapsell and Justin Glyn in print. And while John Tharakan's theology is compelling, Gavin O'Brien's spelling detracts from the heavy judgmental weather he makes of his fervorino, given that he announces himself as a Catholic school teacher. As far as I am aware, P. Boylan, every clergyperson, whose role commands a physical presence in Queensland Catholic schools, has to be a blue card holder, which makes them automatically subject to scrutiny by the authorities, who must report any allegations of offences against them to the police, whether the canonical jurisdiction advises otherwise or not. Although not a canon lawyer, I can attest that Cardinal Murphy-O'Connor of Westminster was never charged by police for his alleged offence and that the death of a person automatically lays to rest the question of their guilt in a civil and canonical court, given that we are taught that all of us are accountable for our behaviour on earth to a Higher Judge. I personally know and am friends with two Queensland priests, formerly associated with schools, and who have served time for child abuse. I incline towards the more liberal canonical interpretation that confidentiality, rather than publicity, obviates gossip.
Michael Furtado | 20 November 2018


It is anomalous under Queensland law that a school teacher/principal has this legal obligation to report child abuse and yet a bishop in charge of Catholic schools doesn't under the civil law and is prevented by canon law from doing so even if he wants to. In Queensland, a Bishop does not have to report under the civil law and is obliged not to report under canon law. The school teacher/principal is obliged to report under the civil law and is not prohibited by canon law from doing so because the complaint by the victim is not an "extrajudicial denunciation" which is a complaint made to the priest's superior and the school teacher/principal is not the priest's superior. If the Federal Government implements uniform reporting laws as recommended by the Royal Commission into Institutional Responses to Child Abuse, this will fix the irregularity. It is important Queensland enact reporting legislation in accordance with the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse. NSW has already done that with S.316A of the NSW Crimes Act. This Queensland situation highlights the reasons why Pope Francis should urgently change canon law as it is impossible to expect all jurisdictions in the world to agree about reporting clerical child abuse.
PBOYLAN | 21 November 2018


It is abundantly clear from the comments here that Queensland is streets behind the rest of the country, a situation it has failed to correct since it became an autonomous State. Catholic Education's appalling failure to educate children in the teachings of the Church in its ex-Catholic schools in Q'land particularly, is one of the great Catholic education disasters in this country. One of Q'land's favoured bishops advised his parishioners that because of the lack of priests he had no option but to advise his parishioners when he reduced the number of available Masses in his diocese that they could legitimately attend communion services in the local Anglican churches rather than attend Mass in his Catholic churches ! We also saw Q'land give us the West End priest who allowed a defrocked priest and lay parishioners, both male and female, to concelebrate Mass with him in the name of politically correct inclusiveness! Roll on the "true spirit of Vatican II" in Q'land.
ex - thank God - Queenslander | 21 November 2018


Thanks Keiran, Pope Francis is caught between a rock and a hard place.He has to govern and guide the church and keep the peace among the competitive, ambition hungry Bishops. The secrecy inherent in canon law proceedings has undoubtedly prevented reporting of abuse and has contributed to priests and religious continuing to abuse because they think they can get away with it. In the past they did this with impunity. Today it's a different story because of the unprecedented awareness of the abuse epidemic worldwide. Francis' predecessor went further and threatened to excommunicate whistle blowers on this issue. Reputation of the institution was everything. Carlo Vigano accused Francis of not acting on information he laid against Theodore McCarrick both before and after the Pennsylvania trials . He has attacked Francis twice, accused him of slander and hypocrisy even though Francis sanctioned McCarrick. Francis is not judgemental. He is thoughtful and reserved. Should he have done more? Its not for us to say. Until Canon law is changed to abolish the Pontifical secret, we must respect Francis' right to silence and condemn Carlo Vigano's attempts to vociferously claim the moral high ground. Francis has to be all things to all men.
Frank Armstrong | 21 November 2018


As a specialist in the field of Catholic Education Studies, with a research Masters as well as a doctorate in the field, the former dealing with the administration of Catholic schools and the latter addressing solutions to the perennially controversial and politically disruptive policy process for funding Catholic schools, I have a critical handle on Catholic education, both in Queensland, as well as Australia-wise, and indeed globally. While I am not a lawyer, I can assure PBOYLAN that no case of alleged child abuse goes unreported to the police because, over and above legal requirements in this regard, as they apply to all schools, whether Catholic or not, all Catholic educational employers are required to have child safety officers who must immediately report such allegations to the police, with or without the permission of their bishop or majors superior to do so. This was made excruciatingly clear when Bishop Morris of Toowoomba dismissed both child safety officers in his diocese for dithering on the matter. It happens that in the past, such hesitation related to unclear formal lines of communication that assumed that such police reporting depended somehow on reading the mind of the bishop on this matter. No more!
Dr Michael FURTADO | 22 November 2018


I am not a Queenslander, but was employed in that state at a time when its machinery of government and public administration were shockingly managed as well as provenly corrupt. Brisbane's archbishop at the time, +Francis Rush, was the last of the Australian episcopate who had attended Vatican II. He was suffused with aggiornamento, and so nurtured his flock, both theologically as well as pastorally, that the Queensland Church became the envy of other episcopal provinces across Australia. I know because I lived in Perth prior to that. Peter Kennedy, the South Brisbane priest mentioned here, is now elderly but at the time enjoyed the support of the archbishop and laity in trialling many badly needed liturgical innovations. He was also theologically literate and a good communicator, so his flock naturally included the best-educated of the faithful, not all of them Catholic. Terry Fitzpatrick, who assists him (neither are excommunicated) is the father of a young man, whom he parented rather than abandon, as was the injunction of his Bishop at the time. +Bill Morris of Toowoomba, sacked without the natural justice of a hearing, advised the faithful that his priest shortage in a vast diocese would necessitate ecumenical sharing.
Michael Furtado | 22 November 2018


With respect Michael Furtado, Bishop Bill Morris was sacked after 13 years of meetings, hearings and advice to which he paid no attention. He was certainly afforded a hearing! The great ecumenical successes of Vatican II have proceeded under the banner of "...that they may all be one". In this vision, however, there is no place for the abandonment of established doctrine or moral precepts simply to meet the desire for Christian unity as stated by Pope John XXIII when he convened the Vatican II Council and reiterated by the Council in Unitatis Redintergratio (Ch 11, 11), Vat II, Nov 1964, in the words "Nothing is so foreign to the spirit of ecumenism as a false irenicism [peace accord] in which the purity of Catholic doctrine [the Eucharist cf the Anglican Communion Service] suffers loss and its genuine and certain meaning is clouded". This does not readily lend itself to misinterpretation of the type that Bishop Bill Morris espoused.
ex - thank God - Queenslander | 23 November 2018


I lived and worked as a university lecturer and researcher for ten of the eighteen years of +Bill Morris's episcopacy in Toowoomba. I was neither involved with Catholic Education nor in any other aspects of the Diocese, except as a member of the St Theresas' (yes; both!) Faith Community. During that time I encountered no contrarian or sabotaging attitudes in either Bishop Morris or in his published opinions. I met with him on some occasions in relation to my work on Catholic school funding and also on the matter of the educational inclusion of kids with special needs. Unlike his predecessor, a Prince Bishop, he had the common touch and was much loved by his flock for his pastoral attitude and communication skills. Bill Morris succeeded a conservative Bishop, Eddie Kelly, unyielding in his grip on episcopal power and of an authoritarian bent, and, given that the Diocese is a very different place than it once was (wealthy, conservative, inclined towards docility and clerical control) set against its modernising proximity to Brisbane. It also had some very fine clergy and laity: women and men of deep faith who took Vatican II and its commitments to evangelise seriously. Ex-Queenslander? Perfectly understandable.
Michael Furtado | 27 November 2018


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