VATICAN CITY (VATICAN CITY)
Pearls and Irritations [Kingston ACT, Australia]
May 19, 2025
By Kieran Tapsell
In its 2017 Final Report, the Australian Royal Commission into Institutional Responses to Child Sexual Abuse recommended changes to canon law, the most important of which was the abolition of the pontifical secret over child sexual abuse by clergy.
The pontifical secret prevented bishops from reporting allegations of child sexual abuse to civil authorities unless there were civil reporting laws. Most countries do not have adequate reporting laws. In 2019, the late Pope Francis abolished the pontifical secret over child sexual abuse thus ending the cover-up written into canon law by Pope Pius XI in 1922.
Another consequence of the pontifical secret was the Church’s failure to develop case law jurisprudence over child sexual abuse, as it had done for marriage annulment cases. Quite apart from issues of transparency, case law jurisprudence is an essential tool for both civil and canon lawyers to know how courts will apply the law to particular facts. The Royal Commission recommended the publication of child sexual abuse decisions and their reasons while protecting the identity of the victim survivor.
In 2020, the Holy See responded to the Royal Commission’s recommendations. It pointed out that Pope Francis had abolished the pontifical secret, but retained what he called “office confidentiality” of canonical proceedings. The Holy See said the decision to publish its case law would be made on a case-by-case basis, bearing in mind its obligation to protect the reputation of all persons involved in canonical proceedings. “All persons” includes the perpetrators.
For the last five years, the case-by-case basis has meant no publication of disciplinary decisions unless the scandal has already hit the press. The decisions are forwarded to the bishop where they stay in the diocese’s secret archive. Not even bishops’ conferences receive them. An article published in 2020 by a former undersecretary of the Dicastery for the Doctrine of the Faith states that “office confidentiality” may prevent publication for “the good of the Church”. The reputations of witnesses can be protected by anonymisation and redaction but, as the Australian Royal Commission found, the “good of the Church” in the avoidance of scandal was the mindset behind the imposition of the pontifical secret and the cover up imposed by canon law from 1922 to 2019.
Pope Leo XIV is a canon lawyer who comes from a country with a legal system that values the importance of case law jurisprudence not only for transparency, but for the guidance of lawyers in applying the law. The current failure to publish disciplinary decisions is a serious flaw in the canonical legal system claimed to be the oldest in the Western world.
The second problem requiring urgent attention by the new pope is the failure of the Holy See to co-operate with independent inquiries about child sexual abuse in the Church. Popes Benedict and Francis told bishops to cooperate with civil authorities, but when it came to their providing documentary evidence in canonical proceedings to civil inquiries, they both refused access. They refused requests by the Murphy Commission in Ireland, the Australian Royal Commission, the English Independent Inquiry into Child Sexual Abuse, the Swiss Bishops Conference Inquiry and the Polish State Commission on Paedophilia for documents held by the Holy See relating to child sexual abuse in those countries. In the case of the Australian Royal Commission, some documents were produced in relation to two case studies, and in the English inquiry, most of the documents produced were in the public domain. Canon 489 requires bishops to destroy evidence of the abuse in canonical proceedings after 10 years or the death of the priest. Canon law ensures that the Holy See will have relevant documents about child sexual abuse by clergy and religious that will not exist in the local jurisdiction where such inquiries are held.
A third piece of unfinished business is the claim by Popes Benedict and Francis that the Church practices “zero tolerance” of child sexual abuse. The Australian Royal Commission recommended that the appropriate punishment for child sexual abuse was dismissal from the priesthood and a religious institute, the maximum punishment under canon law. In 2002, the Holy See approved canon law, applying only to the United States, that required clergy involved in even a single case of child sexual abuse to be permanently removed from ministry. The Universal Guidelines of the Pontifical Commission for the Protection of Minors also defines zero tolerance as permanent removal from ministry. Whether the term is defined as dismissal or permanent removal from ministry, that is not what the Holy See practiced under Pope Francis as shown by numerous cases in Bishop Accountability.
A fourth piece of unfinished business is that the Holy See has imposed on Church personnel mandatory reporting of child sexual abuse to the Church, but not to the civil authorities. The excuse for this failure is that the Church also operates in countries with repressive regimes. Every coherent legal system in the world makes exceptions where the general rule is inappropriate. In 1842, the Holy Office under Pope Gregory XVI issued an instruction absolving penitents of their canonical obligation to denounce priests who solicited sex in the confessional in the lands of “schismatics, heretics and Mohammedans”, the repressive regimes for Catholics at the time. The 1983 Code of Canon Law provides for some 1300 exceptions to general rules. Canon 85 of the Code gives the Holy See power to provide dispensations even where exceptions are not provided for in the Code itself. The existence of repressive regimes is no excuse for failing to make reporting to the civil authorities mandatory in the vast majority of countries that are not repressive.
Pope Leo XIV is a canon lawyer from an Anglo/American legal culture that places much greater value on transparency than the secrecy that was the hallmark of the Inquisition. There is every reason to be optimistic about his adopting the above reforms.
Kieran Tapsell is a retired Australian civil lawyer and the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse, (2014), Second Edition, Updated and Expanded (2024).”