Friday, October 31, 2014

Sexual Abuse and the Catholic Church:A Discussion with Kieran Tapsell and Ian Waters

A conversation in Melbourne recorded at the Pumphouse Hotel on Wednesday October 29th sponsored by Catholics for Renewal and Catalyst for Renewal

These videos have a comment section which at the time of publishing on this blog remain empty. I suggest that the  speakers raise critical questions of morality, history and accountability from differing perspectives.

These videos  add to the  evidence being presented during the Royal Commission into Institutional responses into Child Sexual Abuse.

 I hope that the publication of these videos will encourage conversation and response by all those concerned about the damning history of clergy sexual abuse in the Catholic Church.

Kieran responds to Ian

So I assume that gets Cd Ottaviani who wrote the 1962 revision of Crimen off the hook, and as Congregations, according to Ian operate independently of the Pope, it gets the 1922 and 1962 popes off the hook.

I don't think Ottaviani was ever on the hook. He may have signed the reprint of Crimen Sollicitationis, but he clearly did so on behalf of Pope John XXIII. This is what appears at the foot of the document:

His Holiness Pope John XXIII, in an audience granted to the Most Eminent Cardinal Secretary of the Holy Office on 16 March 1962, graciously approved and confirmed this Instruction, ordering those responsible to observe it and to ensure that it is observed in every detail.
Given in Rome, from the Office of the Sacred Congregation, 16 March 1962.
L.+ S.A. Card. Ottaviani
There could not be a clearer statement that this was an instruction from the Pope, not from Cardinal Ottaviani personally. Further, Pope John Paul II in speaking about Crimen Sollicitationis in Sacramentorum Sanctitatis Tutela wrote this:

“It is to be kept in mind that an Instruction of this kind had the force of law since the Supreme Pontiff, according to the norm of can. 247, § 1 of the Codex Iuris Canonici promulgated in 1917, presided over the Congregation of the Holy Office, and the Instruction proceeded from his own authority, with the Cardinal at the time only performing the function of Secretary"

The Pope is the supreme interpreter of canon law, and here he is saying that this instruction was not just some "guide", but it "had the force of law" because it came from the Pope.
The same kind of statement occurs at the bottom of the instruction Secreta Continere of 1974 from Paul VI. That is why, with all due respect to Ian, I think what he said in the video is untenable. These instructions were "law".

B16 as Cd Ratzinger gets a serve from Ian for not being as au fait with canon law as he should have been since it wasn't his specialty.

This is what Ian said about Cardinal Ratzinger:
I understand that Cardinal Joseph Ratzinger, when Prefect of the Congregation for the Doctrine of the Faith, that is, before he became Pope Benedict XVI, asserted that Crimen Sollicitationis was in effect until 2001, when replaced by the norms attached to Pope John Paul II’s legislation, Sacramentorum Sanctitatis Tutela. That was clearly his opinion, which in my opinion, was misguided. Ratzinger certainly had a doctorate in Dogmatic Theology, and he had what the Germans call an “habilitation” and the American’s call a “higher doctorate”, to qualify him to be a University Professor. But he had no qualifications in canon law, and should have been briefed by reputable canonists before making such an assertion. In my opinion he could only have given advice such as, “We have no instruction at present to elucidate the penal process in canons 1717 to canons 1731, and until it comes, it may be useful to you follow, mutatis mutandis, the norms of Crimen Sollicitationis , which was an instruction to elucidate the 1917 Code, not the 1983 Code.”

Ian's use of the words, "reputable canonists" is interesting because the Secretary of the Congregation for the Doctrine of the Faith from 1995 to 2002 was the then Archbishop Bertone. He was a canon lawyer with a doctorate in canon law. He was the one who told the American canon law society in 1996 that Crimen was still "in force", and he also signed the letter of 18 May 2001, with Ratzinger, saying that it was "in force until now". Further, Archbishop Wilson at the Australian Royal Commission confirmed that he had written to the CDF on 28 January 1998 asking if Crimen was restricted to confession and received back a letter from Cardinal Bertone on 28 February 1998, effectively saying that it was not so confined, ie it was still in force for dealing with child sexual abuse matters outside of soliciting in the confessional.
Ian's criticism of Ratzinger has perhaps been unfair. He did take advice from a canon lawyer, and it was Archbishop Bertone. Whether or not Bertone was a "reputable" canon lawyer is another matter. You can read about the confusion created by these statements in chapter 9 of Potiphar's Wife.

In that chapter, I discussed the repeal of Crimen Sollicitationis in 1983, and what I wrote there was largely based on Professor Nicholas Cafardi's book, Before Dallasand some articles that Cafardi wrote in Commonweal magazine. It appears from the above, that Ian Waters agrees with me. Crimen Sollicitationis was repealed by the 1983 Code of Canon Law and was not "in force" up until 2001.

And that is the reason why I have said that Crimen Sollicitationis was really irrelevant to when the vast bulk of the cover up occurred in Australia - after 1983.

It does not surprise me that canon lawyers in Australia did know about Crimen Sollicitationis in the distant past, but their numbers would gradually have dwindled once it was repealed in 1983 by the new Code of Canon Law. I have dealt with this "ignorance" of Crimen at p 107 of Potiphar's Wife.
But to recap what was said there,

 "The evidence before the Murphy Commission was that Archbishop McQuaid of Dublin (1940-1971) had used the 1922 document in the case of Fr. Edwards in 1960 (par 1.89), and that during his time as Archbishop, the document was well known to senior Church figures and was “well thumbed”, but there was no evidence that the Archdiocese had received a copy of the 1962 document (par 4.21). In the United States, Cardinal Francis George of Chicago in court evidence said that the 1962 document was taught to him in the seminary, and Bishop Madera said that it was discussed at a meeting of clergy with Archbishop Manning of Los Angeles in the early 1960s:, par 14 (Accessed 5 December 2013)."

But the most probable reason why knowledge about Crimen both in Australia and elsewhere dwindled comes from Professor John P. Beal in his 30 page article on Crimen Sollicittionis: “The 1962 Instruction: Crimen Sollicitationis: Caught Red Handed or Handed a Red Herring?” 41 Studia Canonica 199 at 230: Somewhat unusually for an academic article, this has been published on the Vatican website. For those who don't want to wade through it, the generally answer to his rhetorical question in the title seems to be a bit of both. However, he has his own red herring as well, when he says (like Ian Waters did in Melbourne) that confidentiality is preserved by police, the FBI and CIA. That is a red herring because that confidentiality did not prevent the information they gathered going to the State, because they are the State, not an independent organisation like the Church. The effect of the Church's "confidentiality" was to keep that information from the State. Anyway, this is what he says about the knowledge of Crimen Sollicitationis.

Although lay people, who were the most likely victims of these crimes, might not be aware of the details of canon law, confessors, who were supposed to be aware of these matters, were to alert them to the gravity of these matters and of their obligation to report these offenses, and, if need be, to threaten canonical sanctions and refusal of absolution if they failed to do so. In addition, the seriousness of these offences, their reservation to the Holy Office, and, at least in general, the procedure to follow when confronted with them were topics dealt with in the manuals of moral theology (117) and canon law (118) used in seminary formation and were broached at study days and other opportunities for continuing formation after ordination.(119). Thus, Yanguas could say with confidence in 1947, "knowledge of the crimen pessimum and of the shape of the process for [dealing with] it is considered to be divulged universally among clerics today." (120)

 One can be skeptical of Yanguas' claim about how widespread knowledge of these matters actually was even among the clergy in his day, but he was correct that the information most people, both clergy and lay, needed to know should a complaint of solicitation or one of the permutations of the crimen pessimum arise was at least accessible.

 Not long after the 1962 Instruction was disseminated, however, the Church underwent profound upheavals in the way in which the clergy were formed. The traditional manuals of moral theology were jettisoned; the study of canon law was relegated to a minor place in the seminary curriculum, and canon law itself was not widely viewed as an appropriate instrument for enforcing ecclesiastical discipline; as the study of Latin became at best marginal to priestly formation, fewer priests were able to read official documents in that language; junior clergy examinations which had pressured the newly ordained to remain abreast of developments in Church teaching and practice vanished;(121) and the focus on ongoing clergy formation shifted from casus conscientiae in confessional practice to more "pastoral" and "relevant" subjects.

 As a result, the traditional channels by which the clergy (and, through them, the laity) were kept abreast of their responsibility when they became aware of the offenses treated in the instruction quickly eroded. Meanwhile, the 1962 Instruction gathered dust in the secret archives of diocesan curias until a reference to its existence in the Holy Father's 2001 apostolic letter took most people, including most bishops, by surprise. What is truly surprising is that there is no evidence that the Holy See reminded bishops of the existence of this document and of their obligation to follow it as the clergy sexual abuse crisis began to unfold in the United States and elsewhere during the 1980s and after.

 Defenses of the policy of maintaining the confidentiality of the 1962 Instruction are not without merit, but they overlook the most serious harm that resulted, albeit inadvertently, from this secrecy. This secrecy was so strictly observed that those for whom the instruction was intended were, for the most part, unaware not only of the procedure set forth in the document but even of its existence.

As a result of this ignorance, local ordinaries and those who assisted them could not and did not use the procedure prescribed in the instruction when they were confronted with accusations of misconduct. The Congregation for the Doctrine of the Faith seems to have seen the wisdom of these criticisms of the secrecy in which previous instructions were shrouded. It has made its 2001 substantive and procedural norms for cases involving reserved delicts (but not formularies and detailed norms for specific cases) more accessible than were those of the 1962 lnstruction. Although these norms were not published in the Acta Apostolicae Sedis, the Congregation has permitted their publication elsewhere both in Latin and in vernacular languages as well as scholarly commentaries on them."

  • 117 See, for example, Thomas IoRio, Theologia mora/is, Naples, M. D'AuRJA Editori, 1954, vol. 2, pp. 158-159. 
  • 118 118 See, for example, WERNZ and VIDAL, Ius Canonicum, vol. 7, p. 584; Eduardo REGATILLO, Institutiones iuris canonici, Santander, Sal Terra!, 1951, vol. 2, pp. 571-572.
  • 119 See, for example, Ulpianus LoPEZ, "Casus Conscienti:E- I," in Per, 27 (1938), pp. 32-35. YANGUAS, "De crimine pessimo," p. 438. 
  • 120 YANGUAS, "De crimine pessimo," p. 438. Emphasis in the original. 
  • 121 See 1917/CJC, c. 130, §1

 Crimen Sollicitationis had on the front page of the document, "NOT TO BE PUBLISHED OR AUGMENTED WITH COMMENTARIES", but Aurelio Yanguas SJ, a Spanish canon lawyer did publish an article about it in 1946. It was in Latin in a Spanish canon law journal, so he probably thought it was safe from the eyes of the naughty outside world. De crimine pessimo et competentia S. Officia relate ad illud,” Revista Espanola de Derecho Canonico. 1(1946): 427-439

 As I have said before, I don't think too much should be made of this particular "ignorance" in Australia simply because it seems that even Ian Waters accepts that Crimen Sollicitationis was repealed by the 1983 Code of Canon Law, and while undoubtedly there were allegations of sexual abuse before 1983, the real "tsunami" as Archbishop Coleridge called it, really only started in the late 1980s. That is when Brian Lucas then started to try and convince these priests to resign because, as he put it, the canonical system was "unworkable" for getting rid of them.

Significantly, that informal process did not involve reporting the allegations to the police. That too is unsurprising, given the fact that in 1974 Secreta Continere was promulgated by publication on the Acta Apostolicae Sedis, and no one has so far suggested that senior clergy were ignorant of the pontifical secret because it also applied to consultations over the appointment of bishops. One former priest at the Melbourne meeting specifically mentioned being so consulted and being aware that those consultations were subject to the pontifical secret.

Material sourced from Catholica Forum
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