Catholic Church must reform canon law in wake of child sex abuse royal commission
By Noel Debien
ABC (Australian Broadcasting Corporation)
September 07, 2018
|The devil is, as always, in the detail. And there is a lot of detail.|
|The Catholic Church has strongly resisted calls for the seal of the confessional to be broken.|
|The Pope has already indicated mandatory celibacy is up for review in South America.|
|A child sexual abuse victim's written comment included in Messages to Australia.|
|The royal commission has revealed extensive institutional failures.|
Amid international media hype and confusing reporting, Australia's Catholic leaders delivered their official response to the Royal Commission on Institutional Responses to Sexual Abuse last week.
So, has the Australian Catholic Church "rejected mandatory reporting", as Al Jazeera published?
Or did The Hindu get it right with their headline: "Australian Catholic leaders vow to end abuse cover-up"?
The devil is, as always, in the detail. And there is a lot of detail.
The joint response from the Australian Catholic Bishops Conference (ACBC) and Catholic Religious Australia (CRA), which represents nuns, sisters and brothers, monks and friars, says bishops and religious leaders accept most of the recommendations of the royal commission.
Simultaneously, the long-awaited Truth, Justice and Healing Council (TJHC) report, a self-analysis commissioned by the ACC and the CRA, was made public — it's a bitter medicinal pill Catholic leadership themselves had paid for and asked to be administered.
The bottom line is that the diverse and independent parts of a complex Catholic Church in crisis have managed — for better or for worse — to pull themselves together and form a coordinated response.
State law vs canon law: The seal of confessional
Despite Al Jazeera's headline, the Catholic Church already accepts and implements mandatory reporting with one notable exception, that notable exception being the confessional.
The royal commission recommended that: "Laws concerning mandatory reporting to child protection authorities should not exempt persons in religious ministry from being required to report knowledge of suspicions formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession."
This recommendation is really asking the State and Territory legislatures to take action. Some of them are already proceeding to remove legal exemptions for priest/penitent confidentiality in the confessional.
The existence of the exemptions reflects a time when Church and State overlapped more in terms of membership.
In 2018, our parliamentarians, on average, are more likely to be religious than their own constituents, yet public expectation around the confessional is changing.
But there's no unanimous agreement on removing legal protections for the seal of the confessional. Bishops and clergy have been clear that confessors will go to jail before breaking the seal, whatever legal reform occurs.
The seal is non-negotiable for Catholic leadership, and the canon law penalty for breaking the seal is the maximum one: excommunication.
ACU's Professor Greg Craven has written in the church's internal TJHC report (a report Prof Craven himself declined to endorse): "It always was perfectly clear that the royal commission would recommend against the maintenance of the seal of the confessional, as much a symbolic repudiation of the historic Catholicism which it saw as founding child abuse than anything else. This was indeed the outcome, despite the evidence suggesting abuse of the sacrament being pitifully thin. The royal commission similarly was dismissive of any argument for preservation of the seal based upon fundamental religious freedom."
This recommendation from the royal commission will be understood as a punitive measure by the church leadership, and whatever happens here, the matter of the confessional seal will be ongoing in its implications.
Is voluntary celibacy the answer?
Recommendation 16.18 was that the ACBC should request the Holy See to consider introducing voluntary celibacy for diocesan clergy.
The now defunct Truth, Justice and Healing Council, which coordinated the Catholic Church's response to the royal commission, raised this issue in its own report.
It recommended a study on "the impact of mandatory celibacy on the behaviour of perpetrators of child sexual abuse and on the influence of clericalism in the institutional response to the abuse by the church".
Last week's ACBC and CRA response said the matter had been referred to Rome. Could this foreshadow change?
The Pope has already indicated mandatory celibacy is up for review in South America — Pope Francis has told the bishops there to sort it out.
However, there is a complication with this apparently progressive solution.
The Anglican Church of Australia — which has married clergy — commissioned a study in 2009 that gave them some disturbing results.
Australian barrister and Safe Church Commission chair Garth Blake SC confirmed the findings at a conference one week ago: the relative percentage, type and profile of survivors of married Anglican clergy had no significant statistical difference from the relative percentage, type and profile of survivors of celibate Catholic clergy.
The majority of survivors were teenage boys in both cases.
It is not clear exactly what this research means yet, but it seems likely that these were crimes of opportunity. It may be that clericalised cultures had given clergy offenders relatively easy access to teenage boys.
Another odd statistic is that the Jesuits — a celibate order that runs schools and whose members have access to teenage boys — have the lowest level of credible allegations reported to the royal commissions among religious orders. They account for 1 per cent of claims, or 45 cases.
Optional celibacy may indeed happen, but it does not seem to be a straightforward remedy.
A new kind of national ecclesiastical court?
The royal commission has recommended that the "ACBC and CRA, in consultation with the Holy See, should consider establishing an Australian tribunal for trying canonical disciplinary cases against clergy".
This recommendation might seem surprising given the very same royal commission has revealed extensive institutional failures. But the recommendation addresses specific failures of governance inside the church.
Individual bishops had found themselves relatively isolated when dealing with problem clergy and personnel. They have no body of administrative law, and no jurisprudence to rely upon.
This is especially problematic when secular charges do not meet the requirement of "beyond reasonable doubt", yet an "unacceptable risk" requires the removal of a cleric or church worker.
There are already Catholic ecclesiastical courts in Australian provinces (which are basically state-wide groupings of dioceses).
These work in parallel with the secular legal system, subject to state and federal laws. They are known as the tribunals, where judges decide, for example, on the nullity of marriages.
There have also already been occasional church tribunals dealing with difficult child protection issues.
The metropolitan archbishop responsible for the province can appoint judges and advocates with legal expertise and qualification to administer justice where the secular courts are unable to assist, or where secular courts have no interest.
These judges and advocates are already women and men, clergy and lay. It is not necessary for these judges to be ordained to have jurisdiction. The commission's recommendation takes this idea to a whole new level.
This proposal is a push in the direction of the separation of powers, and it's the second most radical proposal from the commission.
Only the proposed removal of the Seal of the Confessional trumps it.
Trickle-up recommendations, top-down reform
Globally, the church has no separation of powers. The Pope really is an absolute monarch. He is the supreme legislator of canon law.
There is no Catholic parliament to create and develop canon law, and no Catholic judiciary with power separate from the Pope.
There is no church administrative law in comparison with Australian administrative law. Such administrative law might, for example, show precedents for charging or deposing a bishop.
The case of former Adelaide Archbishop Philip Wilson springs to mind, as does the case from Toowoomba not so long ago.
In both circumstances, there is no judgement available to understand what actually happened.
In Australia, the law of the land has stepped into the Catholic jurisdictional void in the form of the royal commission.
The courts have been dealing with offenders. But the Catholic Church still requires reform to prevent future offences.
Without significant reform of canon law, pretty much no-one except the Pope and bishops have jurisdiction for bringing about genuine reform.
And there is currently no-one inside the church with jurisdiction who can hold bishops to account if they commit or conceal crimes — except the Pope.
We needed the royal commission to hold bishops and their fellow clergy to account.
Reform of canon law needs to be high on the church's agenda, or it will become "business as usual" again.