Is the Catholic Church Above the Law?
The Tasmanian government is to be commended for following the lead of South Australia and the ACT in tabling legislation allowing for harsh penalties for priests who fail to report suspected child abuse including disclosures that are made in the confessional.
Over several decades now, the Catholic Church has lurched from one child sex abuse crisis to another, both here in Australia and internationally. Whilst child sex abuse is not a problem in the Catholic Church alone, Prof Patrick Parkinson, a Sydney University law professor, told the Victorian Parliamentary Inquiry into the Handling of Complaints of Child Sex Abuse in Religious and Non-Government Institutions, that Catholic clergy commit six times as much abuse as all other churches combined and he said that this was a conservative estimate. (https://www.parliament.vic.gov.au/images/stories/committees/fcdc/inquiries/57th/Child_Abuse_Inquiry/Transcripts/Prof_Patrick_Parkinson_19-Oct-12.pdf).
The reasons for this prevalence of child sex abuse in the Catholic Church is a question for another day even though the obvious and arguably critical factors that separates the Catholic Church from most other Christian churches is firstly the celibacy of Catholic Clergy and secondly, the inviolability of the seal of the Confessional which is most prevalently a Catholic rite. Some might say however, that the incidence of child sex abuse in the Catholic Church is so great simply because they have been allowed to get away with it. How then, has the Catholic Church been able to get away with serious, consistent and apparently condoned criminal conduct over so many decades?
In the Catholic Church, priests soliciting sex whilst in the confessional was covered until relatively recently under Canon law by the "Crimen Sollicitationis" (Crime of Solicitation) which codified the procedures to be followed by the Church in cases of priests accused of having sex with "penitents" (http://www.vatican.va/resources/resources_crimen-sollicitationis-1962_en.html). Importantly and relevantly to the cover ups that have been identified by the Victorian Parliamentary Inquiry, the Royal Commission into Child Sex Abuse and other forums which have investigated the Church's conduct in the area of child abuse, the investigatory process was to be covered by secrecy, the heading of the code being, "Instruction On the Manner of Proceeding in Causes involving the Crime of Solicitation-TO BE KEPT CAREFULLY IN THE SECRET ARCHIVE OF THE CURIA FOR INTERNAL USE" and this instruction is repeated in para 11 of the document which states, " Since, however, in dealing with these causes, more than usual care and concern must be shown that they be treated with the utmost confidentiality, and that, once decided and the decision executed, they are covered by permanent silence."
The Crimen Sollicitationis was part of Canon law, which is defined as "any church's or religion's laws, rules, and regulations; more commonly, the written policies that guide the administration and religious ceremonies of the Roman Catholic Church" (https://legal-dictionary.thefreedictionary.com/canon+law). Paragraph 983.1 of the Code of Canon Law also provides that the standard of secrecy protecting a confession outweighs any form of professional confidentiality or secrecy and that it is a “crime” for a confessor to break the seal of the confessional (https://www.catholiceducation.org/en/religion-and-philosophy/catholic-faith/the-seal-of-the-confessional.html).
Clearly, canon law is not "law" at all but simply the internal rules and procedures adopted in this case by the Catholic Church. The use of the word “crime” and the use of the word “law” in describing the church’s policies and procedures, is indicative of the fact that the Catholic Church views its internal rules as real laws and not just policies.
The current response of the Catholic Church that it will not comply with the Royal Commission's recommendation 35 (https://www.childabuseroyalcommission.gov.au/sites/default/files/final_report_-_recommendations.pdf ) and which the Tasmanian Government has now said it will implement) that each state and territory introduce legislation creating a criminal offence for failure to report knowledge or suspicions gained of child sex abuse reported in the confessional is just another outward and visible sign of an inward and spiritual problem of an organisation which still believes it is above the law notwithstanding the enormous human and financial cost of its failure to deal with the sex abuse crisis.
To survivors, the Church's indication that it will flout any laws passed regarding disclosures made in the confessional is just another slap in the face. The Tasmanian Government’s tabled legislation gives survivors hope that archaic religious rites will no longer be put above the safety of our children.