The Change to the ‘pontifical Secret’ Does Less Than It Appears to Do

By Christopher Altieri
Catholic Herald
December 18, 2019

https://catholicherald.co.uk/commentandblogs/2019/12/18/the-change-to-the-pontifical-secret-does-less-than-it-appears-to-do/

The change is significant, but we shouldn't forget that it only downgrades the level of secrecy

By now, readers will have heard that Pope Francis has issued a rescript lifting the so-called “pontifical secret” under which the Church has until now conducted investigations and canonical trials related to sexual abuse and cover-up, sexual violence, and other similarly grave crimes against minors and vulnerable adults. The pontifical secret remains in force over other matters, but is no longer the default level of secrecy for sex crimes against minors and related offences.

It was one of three changes to Church law the Pope made on Tuesday. Another specifies the acquisition or possession of pornographic materials that exploit subjects under the age of 18 as a grave criminal offence for clerics of any rank. That change may have been longer in coming than observers and advocates for it would have liked, but it is the fulfilment of a promise. A third introduces the possibility for qualified lay persons to act as attorneys in canonical proceedings before the CDF tribunal, in which grave criminal charges are being tried.

Of the three changes, the removal of pontifical secret from sex crime cases involving minors is bound to generate the most discussion.

In an editorial for the Holy See’s official Vatican News outlet, editorial director Andrea Tornielli hailed the change as “a sign of openness, transparency, and the willingness to collaborate with the civil authorities.” Tornielli said, “It is not too much to define it as ‘historic’.”

It certainly was something survivors and victim-advocates felt was long overdue. Irish survivor and advocate Marie Collins hailed the development as “excellent news”. She noted that the Pontifical Commission for the Protection of Minors had called for the change during their first term, which began in 2014. “At last,” she said, “a real and positive change.”

Anne Barrett Doyle of BishopAccounability.org agreed. “I think it’s an overdue and desperately needed action,” she said. “The pontifical secret has been an obstruction to civil justice,” Barrett added. She said the move was a strategically wise one for Pope Francis to take in the current climate. “Prosecutors have begun not only to look at the priests who abuse, but the bishops who cover up their crimes,” she noted. “Civil societies will no longer tolerate it. It’s a move he’s being compelled to make by new forces of accountability in the secular realm.”

“The [pontifical] secret,” Doyle said, “has become a legal liability.”

On that point, it’s worth considering that the removal of the secret does not so much open the archives to all comers, as make it more difficult for leaders of local Churches to use Vatican information security policy as an excuse not to cooperate with civil authorities. The veteran attorney for plaintiffs in sex abuse and cover-up cases, Mitchell Garabedian, noted that, given the subpoena power of which attorneys can avail themselves in many jurisdictions, “[T]he Pope was giving law enforcement what it could probably already obtain.”

In the same statement Garabedian also said, “The abolition of the secret rule by Pope Francis is a small step in the direction of transparency, and may help clergy sexual abuse victims try to heal.” Garabedian is an attorney who represents plaintiffs in civil cases, who ought also be able to use the change to obtain necessary documentation more easily.

The change should, at any rate, make it less likely for victims to face trouble in getting a straight answer from Church officials regarding the status of their complaints, (or even learn whether their alleged abusers had been convicted). The new law also makes it clear that Church officials cannot put gag orders on complainants, victims and witnesses. “The person who files the report, the person who alleges to have been harmed and the witnesses,” the rescript says at Point 5, “shall not be bound by any obligation of silence with regard to matters involving the case.”

The Church’s leading sex crimes investigator, and the principal architect of Benedict XVI’s major reforms to criminal and procedural law, Archbishop Charles Scicluna of Malta, told Vatican News: “The question of transparency now is being implemented at the highest level.”

If people who heard the news that Pope Francis has abolished the pontifical secret in cases of child sexual abuse, sexual violence, and underage pornography expect the great veil of silence instantly to be lifted, however, and a perfect age of transparency to enter upon ecclesiastical affairs, they are in for a rude awakening. The removal of the pontifical secret neither creates nor heralds conditions for an information free-for-all, or anything like it.

“The fact that the knowledge of these criminal actions is no longer tied to the ‘pontifical secret’,” said the secretary of the Pontifical Council for the Interpretation of Legislative Texts, Archbishop Juan Ignacio Arrieta, “does not mean that unfettered publication by those who are in possession of it is now free and clear.” He said that state of affairs would be “immoral,” and “would damage the right to good reputation of the persons protected by canon 220,” which states: “No one is permitted to harm illegitimately the good reputation which a person possesses nor to injure the right of any person to protect his or her own privacy.”

“The purpose of the new Instruction,” wrote Archbishop Arrieta, “is to remove in these cases the subjection to what is called the ‘pontifical secret’, bringing the cases back instead, under the ‘level’ of confidentiality duly required to protect the good reputation of the people involved — to the normal ‘official secret’ established by canon 471.2 (244§2, 2nd CCEO), which each pastor or public officeholder is obliged to observe in distinct ways, depending on whether they are subjects who have the right to know about such things, or whether they are rather persons not in possession of any title to have the information.” Why all the faithful and indeed the broad public do not have a right to know, at least, who has been convicted of what specific crimes, and on the basis of what evidence, is not a subject treated in Arrieta’s careful technical explainer.

Archbishop Arrieta was, however, at some pains to stress and articulate the reasons for which this new development has nothing to do with the confessional seal.

“The Instruction,” Archbishop Arrieta wrote, “has no collision whatsoever with the absolute duty to observe the sacramental seal, which is an obligation imposed on the priest by reason of the position he occupies in the administration of the sacrament of confession, and from which not even the penitent himself could free.” The secretary went on to specify: “Nor does Instruction touch the duty of strict reserve — which may be acquired even outside confession, within the whole ‘extra-sacramental’ forum.”

There, Arrieta was discussing primarily the “privileged” space of spiritual direction. He referred to the 29 June 2019 Note of the Apostolic Penitentiary on the Importance of the Internal Forum and the Inviolability of the Sacramental Seal, which states, “Thus, this particular area also demands a certain secrecy ad extra, inherent to the content of spiritual colloquies and deriving from each person’s right to the respect of his or her own privacy (cf. can. 220). Although in a merely ‘analogous’ way to what happens in the Sacrament of Confession, the spiritual director becomes aware of the individual believer’s conscience by virtue of his ‘special’ relationship with Christ, which derives from holiness of life and — if a cleric — from the received sacred order itself.”

Since the pretext of “spiritual direction” is often one used by abusive priests to groom and trap their victims, it will be interesting to see how those observations of Archbishop Arrieta are received. They could be treated as obiter dicta — learned opinion offered in passing — and more or less ignored. On the other hand, the attempt to broaden the scope of special reserve to space beyond the confessional proper could make it more difficult to defend the seal when — not if — it comes under attack.

Basically, the change to the law downgrades the level of secrecy under which Church investigations and trials are conducted from the very highest level of secrecy to the normal level of reserve under which all curial business is conducted. “The documents in a penal trial are not public domain, but they are available for authorities, or people who are interested parties, and authorities who have a statutory jurisdiction over the matter,” Archbishop Scicluna explained to Vatican News.

When it comes to requests from civil authorities to the Holy See for case files or other information, there are rules and procedures to follow. “There has to be a specific request,” Archbishop Scicluna said, “all the formalities of international law are to be followed.” He went on to say that he thinks the change should facilitate communication, information-sharing, and the sharing of documentation among ecclesiastical and secular authorities.

Archbishop Scicluna clarified one important point for the Catholic Herald. In response to follow-up queries, he explained that the change in the secrecy law is not only forward-looking, but will also apply to older cases. “The law applies immediately to all new requests for information concerning all cases,” he said.

It’s worth mentioning that a pope could still put anything he wishes under pontifical secret, too. The difference is that, for a good long while, everything related to criminal investigations and trials has been under pontifical secret (unless it wasn’t), and now things related to investigations and trials on sex crimes charges will not be under pontifical secret (unless they’re put under it).

The changes in the law are indeed significant, but the Vatican’s own official interpreters carefully admit that the change does less than it appears to do, and much less than the Vatican’s message managers claim. What real, practical difference the change will make at this point, remains to be seen.