A response from the [UK] National Secular Society to the written replies by the Holy See
Concerning the List of Issues (CRC/C/VAT/Q/2)
to be taken up in connection with the consideration of the Combined Second, Third and Fourth periodic reports of the Holy See (CRC/C/VAT/2).
January 2014
National Secular Society
25 Red Lion Square
London
WC1R 4RL
+44 207 404 3126
Key:
Written replies by the Holy See[1]are reproducedin boxes and are italicised (any underline for emphasis is added).
Recommendations to the Committee are emboldened and underlined.
The Holy See(HS)in this paragraph demonstratesits systematic control over its priests (“[…]visible society founded on […] discipline and governance by its internal legal system, namely canon law”). This is at odds with it distancing itself from any control over those outside Vatican City State (VCS).
The Holy See is not relieved of its duty under the Convention (including, but not limited to, Article 4) to do all in its power to protect children worldwide under its control or control of its agents by:
a) Catholics being subject to domestic laws in other states
b) “when the Holy See accedes to or ratifies a treaty, it does not do so on behalf of every Catholic in the world”.
Canon law is impeding the operation of domestic laws that would help to uphold the Convention by prosecuting those subject to allegations of child rape and other sexual violence.The HS has omitted to acknowledge that it expects priests, Bishops and its followers to observe canon law which requires secrecy, thereby avoiding or undermining national laws.
We argue that the above reply seeks, but fails, to justify the omission of answers to List of Issues questions 11 (a) to 11(f).
As noted below, we hope that the Committee will:
(a)state that it does not accept that the Holy See’s contention that it does not have Convention obligations in respect of activities under the Church’s control worldwide, and
(b) press for answers to List of Issues questions 11 (a) to 11(f).
In contrast to what is stated by the Holy See, in its reply §9, we argue that the Holy See’s Canon law does in fact “usurp or otherwise interfere with State jurisdiction (criminal or civil)” (§9).As is acknowledged in the Holy See’s text, the penalty under Canon law for offences of child sexual abuse are not prison but range up to ex-communication from the faith at worst. It can plausibly be expected that offenders will be much more likely to offend and reoffend in the knowledge that they will be shielded by the Church from state criminal or civil jurisdiction and the potential of suffering punishments involving physical force. The absence of physical forcefrom canonical punishments emphasises the need to facilitate, rather than hinder, the involvement of state criminal or civil jurisdiction.
The application of Roman Catholic Canon Law outside VCS has the direct effect of intervening in the domestic affairs of other States, particularly in the case of “alleged crimes against children committed by persons, including Catholics, living and working within institutions operating in their respective territories” by providing a parallel legal system to which those belonging to the Catholic Church are subject and whose operation including in canonical trial proceedings potentially undermines the availability of evidence and personal testimony necessary for the effective operation State jurisdiction (criminal or civil).
We contend that the Holy See has almost completely failed to address the substance of the Committee’s List of Issues Question 8 on the Magdalene laundries, and should be pressed to do so.
The information we have seen on this from various reliable sources is in complete contradiction to the assertions made in the Holy See’s reply to Question 8.4. For example, “TheMercy Sisters, theSisters of Our Lady of Charity, the Sisters of Charity and the Good Shepherd Sisters have told Minister for Justice Alan Shatter that they will not pay into the fund which could cost between €34.5 million and €58 million”[2] and “Taoiseach Enda Kenny called on the religious orders that ran the Magdalene laundries to ’reflect’ on their decision not to contribute to the redress fund for former residents”[3]. The [Irish] Government is set to pay more than €34m to Magdalene survivors and all the Orders have refused to contribute[4]; one of the Orders concerned, Sisters of Mercy, had assets in 2009 of €1.5 billion[5].
The Committee may wish to request information about how much each Order has offered to pay and when, together with supporting documentation as it has been unable to find any independent support for the Holy See’s reply.
We argue that a more tangible and sincere way for the religious orders to express their apologies for child rape or other sexual violence carried out elsewhere in Ireland by Catholic clericswould be for them to pay a reasonable proportion of the abuse settlements. The exchanges between the Government and the Orderscould hardly be described as “openness to engage”[6].
The Irish people who arebearing the cost for most of the non-Magdalene abuse are rather less than heartened that while “[t]he cost of redress now stands at €1.5 billion” the Orders have only offered a little over €348.5 million[7]despite them having assets (excluding school assets)exceeding €4 billion (calculated as of 2009)[8].
The agreement between the Orders and the Government reached in 2002 before it was generally known that the scale of abuse was massively greater than was originally thought “was agreed without a memo being brought to government and with limited involvement of the Office of the Attorney General. While the original recommendation of the Department of Finance was that the liability for financial compensation for the damage done to these children should be shared 50:50 between the state and the Religious Congregations”[9].
The Committee may wish to ask for a complete list of non-Magdalene settlements made by each Order, as well as those still promised, and of the net asset totals of each.
In its original list of issues (Part 1, §11), the UNCRC asked[10]:
“In the light of the recognition by the Holy See of sexual violence against children committed by members of the clergy, brothers and nuns in numerous countries around the world, and given the scale of the abuses, please provide detailed information on all cases of child sexual abuse committed by members of the clergy, brothers and nuns or brought to the attention of the Holy See over the reporting period. For all these cases, please provide detailed information on:” [questions (a) to (f) followed].
We, along with Geoffrey Robertson QC,fundamentally disagree with the Holy See’s contention that its responsibility for implementing the Convention is restricted to VCS. Please referto the reasons given in our comments above relating to the Reply Introduction §8.
(As noted above with reference to Holy See reply §8) We therefore hope that the Committee will press for answers to List of Issues questions 11(a) to 11(f).
It has been reported that Pope Francis,by means of an Apostolic Letter[11] issued Motu Proprio,changed VCS (as opposed to Canon) laws with effect from 1 September 2013 to accord with CRC obligations, butwe understand they apply only to “publicofficials”, including some worldwide[12]. The only change to Canon law in this area of which we are aware is the new norms adopted in July 2010 by Pope Benedict and referred to below in our comment on the Holy See’s paragraph §49.
The Committee may therefore wish to establish the details of the changes above and, if there have been any, changes to the rules of canon law, in particular to ascertain how widely either apply, to establish for themselves the extent to which they do in fact “ensure that clerics and religious are properly disciplined”.
We understand a paragraph of the guidelines reads “Cooperation with civil authorities within their responsibilities.'Specifically, without prejudice to the sacramental internal forum, the prescriptions of civil law regarding the reporting of such crimes to the designated authority should always be followed'”[13],and that this means “that in the practice suggested by the Congregation for the Doctrine of the Faith it is necessary to comply with the requirements of law in the various countries, and to do so in good time, not during or subsequent to the canonical trial”[14].
The phrases “without prejudice to the sacramental internal forum” and “not during or subsequent to the canonical trial” appear to confirm that the Canonical law or its processes take precedence over civil law or its processes. We suggest thatthis is:
a)an interference with State jurisdiction which the Holy See assertsit does not intend (per Holy See Reply 9).
b)an intervention into the domestic affairs of other States contrary to the Holy See statementthat it is obliged not to so intervene (perthe Holy See’s reply §31).
We invite the Committee to request that the Holy See revise the guidelines sothat where Civil and Criminal law are in conflict with Canon Law,the latter does not take precedence.
“The prescriptions of civil law regarding the reporting of such crimes to the designated authority should always be followed” does not in our opinion go far enough to protect children. Although we congratulate the Committee on having encouraged member States to make the reporting of child rape and other sexual violence mandatory, most countries’ laws do not require this.
We invite the Committee to request the Holy See to make it mandatory worldwide for Church authorities to report to civil authorities, even if there is no legal requirement to do so, any credible accusations of child rape or sexual or other violence known or that becomes known to the Church, and to fully co-operate in enquiries, including by providing all relevant available evidence, including such evidence held under the auspices of the Vatican.
The underlined text in the Holy See’s paragraph §45 appears to be incompatible with the Holy See’s Convention obligations, especially Articles3, 4, 19 and 34. Notably, the Holy Seehas not offered to use its best endeavours to procure the information sought, despite the fact that it could not be better placed to order that such information be produced,in its position as “the highest organ of government of the Catholic Church”[15].
(As noted above with reference toHoly See replies §8 and §33)We hope the Committee will repeat its request for the information sought in the List of Issues, especially in questions 8 and 11.
Please refer to comments on the guidelines above in §44.
Despite considerable research, we have not come across any example of credible allegations about rape or sexual violence by Roman Catholic priests or religious being voluntarily reported to civil authorities by officials of the Church. There is, however, evidence of strong pressure from the Vatican to discourage reporting, even when required by law. For example Geoffrey Robertson has noted that, “In 2001, the Vatican actually congratulated Bishop Pierre Pican of Bayeux for refusing to inform police about a paedophile priest and for giving him parish work despite his confession of guilt”[16].
As a direct result of these failures, many Roman Catholic priests or religious who have committed crimes against children have not been prosecuted and do not have a criminal record. This has allowed them to be moved to other locations where they have reoffended, as the court found Msgr Lynn had done in Philadelphia, albeit that in this State this may not have been unlawful at the time, but has since been made unlawful[17].
Additional endangerment of children resultsdirectly from this absence of criminal record because it prevents knowledge about priests’ or religious’ rape or other sexual violence against children being available to other agencies or employers to whom such offenders are likely to turn. It is very disturbing that the Holy See’s reply §47(b) fails to consider this aspect.
We invite the Committee to request the Holy See to publicly announce that the congratulations to Bishop Pican have been withdrawn.
It is beyond rational debate that “sexual abuse of minors is a crime that violates State criminal laws”, for that is all this sentence says. We hope that the carefully chosen passive phrase “must be recognized” is an acceptance by the Holy See that Canon law does not override state law - albeit, as demonstrated immediately below, Canon law procedures can have the affect of precluding prosecution under State criminal laws.
As Geoffrey Robertson wrote in his book, The Case of the Pope, there is incompatibility between the Convention and both Canon Law and the 2010 norms/guidelines:
He observes that, “the sections of Convention dealing with child sex abuse are irrevocably incompatible with Canon Law, which favours the priest at the expense of the best interests of the child (a breach of Article 3(1)); which does not provide effective procedures for investigation, reporting, referral or judicial involvement (a breach of article 19(2)); and it has secrecy provisions that preclude national, bilateral and multi-national measures (a breach of article 34)”[18].
“[In] May 2010 […] the Holy See ‘fessed up’ to the fact that its 1990 reservation about Vatican City State (VCS) law really did refer to Canon Law ('Canon Law is the primary source of the law of VCS'). Faced with exposure of the way that Canon Law had protected paedophile priests and permitted re-offending, it belatedly protested 'the fact that a given act may also be treated as a religious offence under penal Canon Law does not preclude prosecution according to the criminal law and procedures of any state'. This claim, [made in its 2nd Periodic Report, (§78 and §85) and report under the Optional Protocol (§57)] is disingenuous and misleading. Canon Law — and Crimen and the 2001 Ratzinger apostolic letter and the 'New Norms' of July 2010 — do effectively preclude prosecution because from the moment a complaint is formally made, and for ever after, all participants in the process are sworn to total secrecy[19].
“Canon law has no public hearings, no DNA test facilities, no enforcement mechanism, and the most severe punishments, excommunication or an order to return to the laity [...] bears no comparison with the sentences of imprisonment or community service that can be expected under criminal law”[20].
“It is plain […] from the new Canon law norms laid down in July 2010 that the Vatican will not yield in its claim that the Church is entitled to shelter suspected criminals in its midst from police investigation, public trial and any punishment they deserve”[21].
Coming to a similar conclusion to that aboveof Geoffrey Robertson, retired Sydney solicitor and barrister with degrees in Theology and Law, Kieran Tapsell, wrote on 25 November 2013that the imposition of “‘the secret of the Holy Office’, on all allegations and information obtained by Church authorities about the sexual abuse of children”, makes“no exceptions for reporting those crimes to the civil authorities”[22]. He traced this capacity for undermining the State laws back to “1922 when Pope Pius XI issued his decree Crimen Sollicitationis” before which offenders could after dismissal from the priesthood “be handed over to the civil authorities for punishment according to the civil law.”
We urge the Committee to request that the Holy See take all necessary steps to ensure that that Civil and Criminal law and there associated procedures take precedence over those of Canon Law, where these conflict.
(As in §44)We invite the Committee to request the Holy See to make it mandatory worldwide to report to civil authorities any credible accusations of child rape or sexual violence knownof that becomes known to the Church, and to co-operate in enquiries, including with the provision of evidence and evidence held under the auspices of the Vatican.
PSYCHOLOGICAL ASSISTANCE
While we cannot assert that there has been no offering of psychological assistance to victims, the overall impression is that this is rare.
For example a 2011 study Sexual Abuse of Minors in the Roman Catholic Church in the Netherlands contained the passage “Victims have often suffered for decades from the effects of abuse and have received little acknowledgement of the fact. This has caused problems for them, their immediate family and their friends, who require attention and sometimes professional counselling”[23].
As Geoffrey Robertson has noted, “The best interests of the child requires [...] calling in the police and social welfare services and providing counselling to the child and the family — steps the Vatican resolutely refused to envision when it published its new Canon Law norms in July 2010.”[24]
List of Issues Question 11 (e) still needs to be answered:(The number of child victims who have been given assistance for recovery, including psychological support and social reintegration and have received financial compensation. With reference to paragraph 98 of the Holy See’s report, please clarify whether the confidentiality of the proceedings were imposed on child victims as a condition precedent of financial compensation.)
In the absence of such an answer, or even an indication that the Holy See has instructed the Church to answer and for that answer to be passed on to the Committee, the Committee might additionally ask for copies of instructions to offer psychological assistance to victims and evidence of enforcement/monitoring measures either from the Vatican or from around the world.