WORLDWIDE ABUSE

The website BishopAccountability.org gives an indication of the worldwide scale of the abuse problem. Though the website itself is careful to indicate that it is reporting allegations rather than criminal convictions, there are various other sources which corroborate the scale of the problem. The website indicates that the issue covers all continents, and that there are different aspects to the question of ‘abuse’. While the physical sexual abuse of minors has received most publicity, seminarians and young priests,Footnote ³ sisters in religious congregationsFootnote ⁴ and vulnerable adultsFootnote ⁵ have themselves been the target of sexual predators.

However, the abuse crisis relates to more than physical acts of various levels of intrusiveness and severity. The growth and prevalence of internet activity since the creation of the World Wide Web by Tim Berners-Lee in 1990 has opened up another channel of exploitative and immoral activity, that of downloading, possessing or distributing indecent images of children.Footnote ⁶ The explosion of the number of websites featuring such material has led to various studies being done on its prevalenceFootnote ⁷ and initiatives being taken to combat the sexual exploitation of children.Footnote ⁸ Indeed, the recognition that this problem extends to members of the clergy is demonstrated in its inclusion in various safeguarding documents issued by Bishops’ Conferences,Footnote ⁹ and not least because of a number of convictions of priests for this crime, even up to the present day.

Such abuse was further compounded in the way that reports of abuse were dealt with. In 2002, the Boston Globe exposed the extent of the cover-up of crimes by priests in the Archdiocese of Boston. Not only were the crimes kept secret and not reported to civil authorities, but priests were often moved around parishes, giving them the opportunity to re-offend.Footnote ¹⁰ Subsequent investigations into child sexual abuse in other parts of the world revealed similar failures. The report into the Irish Diocese of Raphoe noted that the judgement of successive bishops was often clouded, with too much emphasis placed on the situation, needs and presumed right to ministry of the accused priest, and where presenting problems such as alcohol abuse were seen to mitigate the actual offence.Footnote ¹¹ The report dealing with the Diocese of Ferns noted that between 1960 and 1980 the bishop at the time treated child sexual abuse by priests as a moral problem, though the report suggests that the bishop's response reflected the growing understanding by the medical profession and society in general of the nature of child sexual abuse and the harm it did.Footnote ¹² The Murphy Report, dealing with the Archdiocese of Dublin, notes that the preoccupation in dealing with cases of abuse up until the mid 1990s was maintaining secrecy, avoiding scandal and protecting institutional reputation and assets.Footnote ¹³ And in England and Wales, the wide-ranging Institutional Inquiry into Child Sexual Abuse (IICSA) noted similar failures in reporting,Footnote ¹⁴ but also that, when cases were dealt with after measures were put in place, there were deficiencies in case management and the recording of actions.Footnote ¹⁵

What we have seen, therefore, is that the concept of ‘abuse’ is multi-faceted, involving not only the physical sexual abuse of children, but also their abuse through the proliferation of child abusive imagery. Sexual abuse cases have also involved adults, both men and women, deemed to be ‘vulnerable’. Finally, this abuse has been compounded (and may also be said to be a form of abuse) by the way in which such cases have been handled when reported. This raises the question of what provisions were already in the 1983 Code of Canon Law, and why they were not implemented effectively in these cases.

WHAT WAS ALREADY IN CANON LAW?

There was already much in the 1983 Code of Canon Law which addressed such activities. In terms of expectations, clerics are obliged to observe ‘perfect and perpetual continence’ and are ‘bound to celibacy’.Footnote ¹⁶ However, celibacy is more than being continent (or abstaining from sexual relations), simply remaining unmarried or avoiding exclusive one-to-one relationships. It is described as ‘the religious practice of non-marriage or the choice of a commitment to the single life for specifically religious reasons’.Footnote ¹⁷ For the Roman Catholic priesthood, clerical celibacy is an obligation (with the exception of former married Anglican priests who have been ordained in the Roman Catholic Church). For diocesan clergy this involves making a promise to remain celibate, and for priests in religious orders it involves the taking of a vow. This difference, however, is not significant in terms of the obligations undertaken or the challenges involved in living as a celibate. Canon 1389 is also relevant in that it mentions sanctions for someone ‘who abuses ecclesiastical power or an office’. As one commentary notes, ‘all power in the Church … is to be exercised for the good of the faithful’, but a strict interpretation of the text (in accordance with Canon 18) requires that ‘there must be a deliberate misuse of one's authority or position which results in injustice or injury to others’.Footnote ¹⁸ Therefore, ‘sexual misconduct’ has two aspects: the violation of clerical celibacy and the intentional misuse of power and abuse of ministry.Footnote ¹⁹

In terms of dealing with a perpetrator, several reports on the failure of the Church to deal adequately with the question of child sexual abuse by clergy noted that the Code of Canon Law 1983 in fact contained detailed regulations for legal proceedings to be initiated.Footnote ²⁰ Canon 1717 states that a major superior (an ordinary of a diocese, or superior general or a provincial superior of a religious congregation) is to enquire carefully about the facts and circumstances, and about the imputability of the offence, when he receives report about an offence which has at least a semblance of truth (§1). Care, however, is to be taken that the investigation does not call into question anyone's good name (§2). After this preliminary inquiry, the major superior is to decide on various courses of action – imposing or declaring a penalty, initiating a judicial process or proceeding by means of an extra-judicial decree.

However, there appear to have been two major issues which meant that the provisions above were not adequately implemented, if at all. An instruction, Crimen sollicitationis, first issued in 1922 and reissued in 1962, established a procedure for canonical cases where priests were accused of abusing the confessional to proposition penitents sexually. The contents of the document were not limited to cases involving solicitation. There were norms to deal with four distinct crimes (classed as de crimine pessimo – ‘the worst crime’): solicitation for sex in the forum of sacramental confession; homosexual sex; sexual abuse of minors, male or female; and bestiality or sex with animals. A major feature of the document was its emphasis on the inviolable observation of confidentiality for all those taking part in the process and all who had knowledge by reason of office.Footnote ²¹ Unfortunately, because this document was not widely distributed, virtually no one knew about it or used it.Footnote ²² The document came under investigation when it was reported in the media in 2003, by which time it has been superseded by another document, Sacramentorum sanctitatis tutela (2001). The media alleged that, being covered by pontifical secrecy, the document was intended to cover up cases of sexual abuse.Footnote ²³ Canon lawyers maintained that the document imposed secrecy only on canonical procedures, and did not prohibit anyone from reporting criminal abuse cases to the statutory authorities. Footnote ²⁴ Whatever the case, there is no doubt that these laws mandating secrecy exacerbated the sexual abuse scandal.Footnote ²⁵

A second issue relates to the definition of paedophilia and the canonical concept of imputability. The Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association, which has undergone a number of revisions since it was first published in 1952, provides criteria for a range of psychiatric disorders,Footnote ²⁶ as does the International Statistical Classification of Diseases and Related Health Problems, maintained by the World Health Organization.Footnote ²⁷ Both provide criteria for a range of psychiatric disorders, among the listing of which is ‘paedophilia’, and both report that the fantasies, sexual urges or behaviours associated with this disorder ‘cause clinically significant distress or impairment in social, occupational, or other areas of functioning’.Footnote ²⁸ When this ‘medical model’ of paedophilia is allied with the canonical concept of ‘imputability’ (Canon 1321), where it can be extinguished if a person habitually lacks the use of reason (Canon 1322) and does not function ‘freely and deliberately’,Footnote ²⁹ or diminished if there are factors affecting knowledge or freedom such as drunkenness or mental disturbance, it is perhaps not altogether surprising that it was treated as an illness (and/or a moral failure) rather than a crime, with abusers being sent for therapeutic intervention.Footnote ³⁰

WHAT WAS ASKED FOR?

In the various inquiries held in different countries a number of conclusions were drawn and recommendations made in the light of the issues mentioned above. This section looks specifically at those of the Royal Commission of Australia in 2017 because they are particularly clear, focused and specific.

Recommendation 16(9) addressed the issue of child sexual abuse itself and outlined suggestions to the Australian Catholic Bishops Conference that they request the Holy See to create new canons in the 1983 Code of Canon Law specifically relating to this crime. The first of these was that all delicts relating to child sexual abuse should be articulated as canonical crimes against the child, not as moral failings or as breaches of the ‘special obligation’ of clerics and religious to observe celibacy. It might be argued that it would be have been better to have put ‘not only as moral failings’ since sexual abuse is both a crime and a sin. Nevertheless, it gives more than a nod to the fact that sexual abuse in a Church setting may be committed by a lay person not bound to celibacy, and it could have been argued that it weakens the link between ‘celibacy’ and ‘child sexual abuse’, save for the commission's recommendation (16(18)) that the Australian bishops should request the Holy See to consider introducing voluntary celibacy for diocesan clergy.

A second suggested change was that all delicts relating to child sexual abuse should apply to any person holding a ‘dignity, office or responsibility in the Church’ regardless of whether they are ordained or not ordained. As Rik Torfs notes, at the time when the Code was promulgated in 1983, ‘lay people were less active in the Church, certainly on a professional basis, than they are today’.Footnote ³¹ This recommendation reflects changes since then, in that such offices and responsibilities not only include priests or male and female members of religious congregations but also laypeople, whose work might range from giving spiritual direction or acting as parish catechists and directors of religious formation, to individuals or teams in parishes visiting prisons and hospitals, care facilities or people in their own homes.

In the 1983 Code of Canon Law, a delict is committed against the sixth commandment if the minor is under the age of 16. This age was raised to 18 by Pope John Paul II in Sacramentorum Sanctitatis Tutela in 2001. There is no mention of pornography in either of these and it was not until revised norms were issued in 2010 by Pope Benedict XVI, Normae de gravioribus delictis, that there was inclusion of a delict relating to the acquisition, possession or distribution of pornographic images of minors. Given that the age limit for minors in this category is specified as 14, one interpretation is that somehow pornography is not as damaging to a minor as are physical sexual acts. In what appears to be an acknowledgement that both delicts are as damaging as each other, the Royal Commission made a recommendation that this age be raised also to 18, now given effect – perhaps rather late in the day – in Vos estis lux mundi.

In relation to the question of imputability and the use of a medical model in terms of paedophilia, the Royal Commission in its report urged the Bishops’ Conference to ensure that the ‘pastoral approach’ was not an essential precondition to the commencement of canonical action relating to an allegation of child sexual abuse.Footnote ³² Moreover, it urged the bishops to petition the Holy See to amend the imputability test in canon law so that a diagnosis of paedophilia was not relevant in the case of a civil prosecution or a canonical trial.Footnote ³³ In other words, the commission argued that any child sexual abuse is a criminal offence, and that a diagnosis of paedophilia cannot be used as a defence, in the first instance at least.

In relation to the issue of secrecy, the commission called on the bishops to ask the Holy See to amend canon law so that the ‘pontifical secret’ would no longer apply to any aspect of allegations or canonical disciplinary processes relating to child sexual abuse.Footnote ³⁴ However, there was also a call for less secrecy, and more transparency, in relation to governance and processes generally. Recommendation 16(7) called for a review of the governance and management structures of dioceses and parishes. Specific issues to be considered included transparency, accountability, consultation and the participation of laymen and laywomen. Further, there was a call for the publication of selection criteria for bishops and a more transparent process in their appointment, which should have the direct participation of laypeople.Footnote ³⁵ Finally, in terms of processes, it was recommended to the Australian bishops that they request the Holy See to introduce measures to ensure that Vatican Congregations and canonical appeal courts always publish decisions in disciplinary matters relating to child sexual abuse.

One issue that was not mentioned in the Royal Commission's recommendations was that of the abuse of vulnerable adults. This is perhaps unsurprising, given the commission's remit of focusing on children. Nevertheless, given that the issue of ‘vulnerability’ has come to the fore in recent years, this is an area that needs to be addressed adequately by the Church. The next section considers how the present Pope has responded to these particular challenges, and whether problematic areas remain.

VOS ESTIS LUX MUNDI

With the opening words ‘you are the light of the world’, the letter of 7 May 2019 is addressed to all believers, each of whom is called to be ‘a shining example of virtue, integrity and holiness’. Addressing the issue of ‘the crimes of sexual abuse’, the letter notes that ‘a continuous and profound conversion of hearts is needed, attested by concrete and effective actions that involve everyone in the Church’. While ‘personal sanctity’ and ‘moral commitment’ are mentioned, the document is clear that sexual abuse is a ‘crime’ and not simply a moral failing. In this sense, it follows the recommendation of the Royal Commission. However, the scope of application of the norms applies ‘to reports concerning clerics or members of Institutes of Consecrated Life or Societies of Apostolic Life’ and, while it does not explicitly say so, an observation might be made that, given this, sexual abuse is also (and still seen) as the breach of the obligations of celibacy. Given that the introduction mentions ‘all those who, in various ways, assume ministries in the Church … or are called to serve the Christian People’, it is surprising that the document does not appear to consider laypeople who may hold ecclesiastical office or who are active within the Church.

The document establishes the content of potential canonical crimes. The offences listed are delicts against the sixth commandment of the Decalogue, outlined as consisting of:

1. i. Forcing someone, by violence or threat or through abuse of authority, to perform or submit to sexual acts;

2. ii. Performing sexual acts with a minor or a vulnerable person;

3. iii. The production, exhibition, possession or distribution, including by electronic means, of child pornography, as well as by the recruitment of or inducement of a minor or a vulnerable person to participate in pornographic exhibitions.

For the purposes of these norms, ‘minors’ are defined as ‘any person under the age of eighteen’ (thereby reflecting the wish of the Royal Commission), or any person who is considered by law to be the equivalent of a minor. The definition of ‘child pornography’ is rather more fulsome than that of the commission, describing it as ‘any representation of a minor, regardless of the means used, involved in explicit sexual activities, whether real or simulated, and any representation of sexual organs of minors for primarily sexual purposes’.

The emphatic reminder at the beginning of the document that it is the responsibility of bishops, as the successors of the apostles, to undertake concrete and effective actions and adopt universal procedures, is then followed by a reference to civil and canonical investigations. Bishops, among others, are not to interfere in these, either by action or omission, where an allegation has been made against a cleric or a member of a religious congregation.Footnote ³⁶ Notwithstanding Canon 22 of the 1983 Code of Canon Law, Pope Francis makes it clear that compliance with civil law is obligatory and non-negotiable.Footnote ³⁷ Additionally, the document imposes a canonical obligation on priests and religious to report abuse, and that episcopal conferences should establish a reporting mechanism that can be used by anyone. Further, the document emphasises the care due to victims, that whistle-blowers should not be punished and that timetables and deadlines should be established for each stage of the process.

MINDING THE GAP: THE QUESTION OF VULNERABILITY

Vos estis lux mundi defines a ‘vulnerable person’ as one who is ‘in a state of infirmity, physical or mental deficiency, or deprivation of personal liberty which, in fact, even occasionally, limits their ability to understand or to want or otherwise resist the offence’. Although this is an expansion on the definition in the 1983 Code of Canon Law, which defines a vulnerable person as one ‘habitually lacking the use of reason’ (Canon 99), a question arises as to whether it is a wide enough definition. ‘Vulnerability’ in health and social care terms is variously defined but includes those adults who have care and support needs, who are experiencing or are at risk of abuse or neglect and who, as a result of having such needs, are unable to protect themselves from either the risk or experience of abuse or neglect.Footnote ³⁸ Adults in such positions of vulnerability may include those with dementia or learning disabilities, or those suffering from mental ill-health or substance misuse. Abuse of such vulnerable adults may include violence, neglect or exploitation (including financial).

At the same time, it can be argued that not all adults who have been, or might be, victims of abuse or inappropriate behaviour are vulnerable under this definition. Many of the people who have claimed or suffered abuse (both inside and outside the Church) were capable adults made vulnerable because of their situation, often because they worked for the abusers or were afraid that their careers would be affected.Footnote ³⁹ In terms of the Church, the claims of the abuse of sisters by clergy, of seminarians by their formators and of young priests by bishops suggests that it can be argued that not all adults who have been victims of abuse or inappropriate behaviour are ‘vulnerable’ in what has been the accepted sense previously.

While Vos estis lux mundi gives a nod to Canon 1389, it makes explicit some of the content of that abuse which is not in the original canon, in terms of forcing someone to perform or submit to sexual acts. However, it is the idea of ‘force’ which is particularly interesting, and how this is interpreted. The document mentions ‘violence or threat or through abuse of authority’ on the part of the perpetrator, but this suggests that the potential victim is in a situation of vulnerability because of certain circumstances. This could mean forced sexual activity to avoid even greater physical or psychological violence, threat (such as exclusion from a seminary or a convent) or intimidation because of the office held by the perpetrator. It can also be due to the desire on the part of a person in formation (the early stages of training for priesthood or life as a religious sister or brother), or in any pastoral relationship, to please the person who has more power. Such an imbalance of the power relationship can lead to manipulation and exploitation of goodwill and trust.

Such potential victims may be normal, capable and confident adults: not ‘vulnerable’ in the usual sense, but made vulnerable because of their situation. All this suggests that the category of ‘vulnerable adult’ needs to be expanded, either implicitly or explicitly, to reflect the idea of adults ‘in situations of vulnerability’. In such circumstances, abuse becomes possible because of a significant power imbalance where a person with more status and authority can exploit the situation in order to abuse. The definition should also be expanded to take in sexual acts with anyone who has been entrusted to the ministry of a pastor, particularly (but not exclusively) if that person is recognised as a vulnerable adult in the wider sense.Footnote ⁴⁰

MINDING THE GAP: GRADATION OF CRIMES

The question of defining ‘vulnerability’ in a wider sense, coupled with the emphasis on a potential abuse of office, itself raises another issue. In a recent article, concern was aired regarding how the law as expressed in Vos estis lux mundi is to be applied, and whether there will be an escalating gradation of crimes with corresponding penalties.Footnote ⁴¹ The issue is illustrated by Grenz and Bell, drawing on Marie Fortune, who identify three categories of possible offence. The first is the clerical ‘lover’ who falls in love with a member of his congregation, which is not necessarily problematic if handled maturely, though does become problematic if it progresses to sexual relations. A second category, described as ‘the wanderer’, is one who may transgress boundaries when faced with an overwhelming crisis or major life change. ‘The predator’, the third category, is the most dangerous of all as there is an element of premeditation and exploitation on his part, being ‘manipulative, coercive, controlling, predatory and sometimes violent’; for such ‘the ministry presents an ideal opportunity for access to possible victims of all ages’.Footnote ⁴²

Much will depend on how the phrase ‘sexual acts’ will be interpreted. Civil legislation resonates with the categories identified in Vos estis lux mundi in terms of offences against children and abuse of office.Footnote ⁴³ Nevertheless, the question is raised as to how widely the term ‘abuse of authority’ is interpreted, whether it applies to a member of the clergy just because they are in a position of authority, and the extent of the vulnerability in the alleged victim. This being the case, there needs to be careful examination of allegations made in terms of the action itself and the circumstances in which it was alleged to have taken place.

MINDING THE GAP: INVOLVEMENT IN THE PROCESS

The emphasis on the role of the bishops in safeguarding at the beginning of Vos estis lux mundi is reflected in the concrete provisions for reporting. Article 3 states that a cleric or member of a religious institute who has knowledge of a delict is obliged to report it promptly to the local ordinary (though ‘any person’ may submit a report). In terms of secrecy, Article 4 makes clear that this is not deemed to violate office confidentiality, nor is there an obligation for that person to keep silent regarding the contents of such a report. Article 5 deals with the care of those who are believed to be victims and includes various forms of support, with the added injunction that the good name, privacy and confidentiality of data of the people involved be protected. However, the document is not entirely clear as to whether this protection extends to the people who have been accused, though Article 12(7) reminds us that the alleged perpetrator enjoys the presumption of innocence until found guilty. The rest of the document deals with procedural norms involving bishops and their equivalents. If a report is made against a bishop of the Latin Church, the authority receiving the report transmits it to the Holy See and the metropolitan bishop of the ecclesiastical province where the person reported is domiciled.Footnote ⁴⁴ The metropolitan requests from Rome that he be assigned to commence the investigation, though there is provision that someone other than the metropolitan can be entrusted to carry out the investigation. Other qualified people may be involved, but only at the invitation of the metropolitan.

There are two major issues arising from these provisions. The first relates to the idea of bishops (or metropolitans) taking the lead in the processes. History has shown that not only did bishops fail to report abuse cases that came to their attention, but that they themselves were accused of perpetrating sexual abuse. This is not a phenomenon confined to a particular part of the world but involves countries in North and South America, Europe, and Africa, and stories of the sexual abuse of religious sisters by bishops in India have emerged more recently. Moreover, several of those accused were not only bishops but metropolitans.Footnote ⁴⁵ Further, there is the question of the dependence on bishops for the proper working of the process. The Murphy Report noted that, at the time of writing, the structures and procedure that had been set up were working well. However, their effectiveness was heavily dependent on two people, the archbishop at the time and the director of the Child Protection Service. Given this, the report recommended that ‘institutional structures need to be sufficiently embedded to ensure that they survive uncommitted or ineffective personnel’.Footnote ⁴⁶ More recently, the IICSA observed that canon law gives the bishop autonomy over what happens within his diocese, and drew attention to the safeguarding document of the Scottish Bishops’ Conference which begins with the affirmation that bishops have full executive, legislative and judicial power in their territories ‘by divine law’.Footnote ⁴⁷ Episcopal conferences are assemblies of bishops in a particular country or territory which exercise certain pastoral offices, but the power of the diocesan bishop generally remains intact, as these conferences exist by reason of ecclesiastical, not divine, law. This means that diocesan bishops have no real lateral or downward accountability, and this has implications for any episcopal conference seeking to develop a unified structure of safeguarding.Footnote ⁴⁸

Secondly, although the norms of Vos estis lux mundi stipulate that qualified (lay)people may be appointed by metropolitans to assist in investigations, this is not mandatory. Further, there is no requirement that they be independent (for example, not employed by the diocese), nor is there any indication as to what qualifications such laypeople may need. While the norms state that such advisers are to act impartially and be free from conflicts of interest,Footnote ⁴⁹ there is no mechanism embedded to ensure that this will be the case. Given that the Royal Commission of Australia called for lay participation in processes, and more transparency about those processes, the provisions here fall short of those recommendations. Moreover, those who have expressed concerns about the effect and impact of clericalism on the whole sexual abuse crisis cannot fail to notice that the process introduced in these norms by Pope Francis can be carried out entirely by clerics.