Kieran Tapsell Vademecum Analysis
On 16 July 2020, the Vatican published a manual for dealing with allegations of child sexual abuse against Church personnel. It marks a significant change in culture expressed in canon law for the last 100 years where the Church was more concerned about providing immunity for clergy child sex perpetrators than it was for the welfare of their victims.
In 2014, two United Nations Committees, for the Rights of the Child, and against Torture, criticized the Vatican for the pontifical secret imposed over allegations of child sexual abuse and for not changing canon law to require Church authorities to report such allegations to the police. The Vatican’s response was that the Church would obey civil reporting laws, but it was otherwise not its responsibility to report – it was up to the victims, even if they were children or those intellectually incapable of reporting.
The Royal Commission into Institutional Responses to Child Sexual Abuse had found in its 2017 Final Report that the pontifical secret still applied where there were no applicable civil reporting laws, and recommended its abolition. Within Australia at the time, only New South Wales and Victoria had comprehensive reporting laws. Once the other States and Territories adopted the Royal Commission’s recommendation that they pass similar laws, canon law required bishops in those places to report abuse to the civil authorities.
In February 2019, Pope Francis held a summit meeting on child sexual abuse at the Vatican with the heads of national Catholic Bishops’ Conferences. Three prominent speakers, Cardinal Marx, Professor Linda Gishoni and Archbishop Scicluna criticized the pontifical secret. It was widely expected that Pope Francis would abolish it, and would impose mandatory reporting to the civil authorities under canon law, as demanded by the two United Nations Committees.
After imposing mandatory reporting to the Vatican civil authorities for the protection of the 30 children who resided within its walls, Pope Francis issued his Apostolic Letter, Vos Estis Lux Mundi on 7 May 2019. He made some changes to canon law over child sexual abuse to be applied universally throughout the Church. He made no mention of the pontifical secret being abolished, and did not impose mandatory reporting to the civil authorities outside the Vatican City.
One of the fundamental principles of every coherent legal system is that no one can be punished unless they break the law. That principle is enshrined in Canon 221§3 of the 1983 Code of Canon Law. Without some kind of canonical obligation, no bishop could be punished for a cover up.
On 17 December 2019, Pope Francis abolished the pontifical secret for child sexual abuse in a document entitled Instruction on the Confidentiality of Legal Proceedings. Bishops were no longer prohibited by canon law to report to the civil authorities, but they still had no obligation to report unless the civil law required them to do so. The hollow excuse given by the Vatican in the past against mandatory reporting was that imposing a universal law to report could endanger priests in places where Catholics are a persecuted minority. Every legal system in the world deals with the problem of where a universal law is inappropriate by creating exceptions, and the Code of Canon Law has 1,300 exceptions to its universal laws.
On 16 July 2020, the Vatican issued a new manual for dealing with child sexual abuse allegations against Church personnel. Clause 17 states: “Even in cases where there is no explicit legal obligation to do so, the ecclesiastical authorities should make a report to the competent civil authorities if this is considered necessary to protect the person involved or other minors from the danger of further criminal acts.” Clause 48 accepts that, subject to civil laws, the Church authorities are to respect the wishes of the complainant not to report. This reflects the exception under the New South Wales and Victorian Crimes Acts on mandatory reporting.