Revised rules about handling allegations of wrongdoing against clergy and others in the employment of the Catholic Church were published by the Vatican in June (New Book VI of the Code of Canon Law, 01.06.2021) and were generally received as a positive step towards holding offenders to more stringent account under a wide number of headings.
The BBC not especially known for holding a pro-Catholic bias, announced that ‘Vatican laws changed to toughen sex abuse punishment’. The Washington Post, from whom the Church wouldn’t normally expect any favours either, covered the story under the heading:’ In a major rewrite of Church law, Pope Francis aims for clearer penalties’.
Hardly unexpectedly, the document was not so positively received by the Irish media. Legal documents, and canon law is no exception, are easily mined by cherry-picking ideologues who ignore context and find a word here and a clause there to cobble together their case. Most newspaper readers tend to take references on trust especially those that come between quotation marks. Generally, people don’t read expansive legal documents without a specific reason. They can easily overlook the fact that such documents are very complex, use technically precise terms that can sound unfeeling in normal language, and are full of internal cross references that can make a stand-alone quote misleading.
Fergus Finlay, writing about the document in the Irish Examiner, brings a gimlet eye to the text and finds grist for his mill. He is offended by the use of the word ‘minor’ when ‘child’, to his thinking, would be more appropriate. He does not find the term ‘child abuse’ anywhere in the document so concludes the Church is still in denial about the issue. He knows full well that ‘minor’ is the word most likely to be used in any legal text, ecclesial or secular, that deals with the responsibilities and obligations of adults towards all those who have not yet reached adulthood in the eyes of the state, and as the Vatican document repeatedly adds, adults ‘with imperfect use of reason’. It is important to note that this document is for the universal Church and so must use terms that can be applied everywhere. ‘Minor’ is precise. ‘Child’ is not.
Finlay believes he has pounced on a solid ‘gotcha’ argument when he finds that penalties for offences under canon law can be diminished where mitigating circumstances apply. He notes with horror that ‘a state of drunkenness (or other mental disturbance)’ is on the list of mitigating factors. He does not observe that the canon in question (canon 1324) sets out a generalised list that does not necessarily apply in each and every case. For instance, the mitigation of ‘acting out of fear’ is clearly one that has no relevance in the area of sexual offending. The same can be reasonably said for acting ‘against another person who was gravely and unjustly provocative’ where a sexual offence against a minor is concerned. Finlay twists this latter condition into the passive ” ‘gravely and unjustly’ provoked” to give unwarranted force to his point. Furthermore, canon 1324 cross references canon 1326.4 in relation to the ‘drunkenness’ get out. Canon 1326. 4 not alone explicitly excludes ‘a state of drunkenness’ as a mitigation but applies ‘a more serious punishment than that prescribed in the law’ ‘if (it was) deliberately sought so as to commit the offence or to excuse it’.
Later in the article, he goes on to say that no court in a democratic country would accept the defence ‘of responding to the provocation of a child’. There is absolutely nothing in the Vatican’s document to suggest that an ecclesial court would do any differently.
Finlay, again fails to appreciate that this is an ecclesial, legal document with worldwide application for a Church that operates across very different civil jurisdictions and cultures when he laments the lack of any mention of mandated reporting to civil authorities. Where a state demands mandated reporting, as in Ireland, the Church, like every other organization, is obliged to comply according to the terms of the legislation. It is for the state to frame its policy in relation to what it considers an offence and the protocols around the reporting of offences. Finlay should be aware that the Church in Ireland had mandated reporting to both the Gardai and the HSE before the State’s own agencies were so mandated. The Church may have been negligent in respect of following its own procedures and, was indeed severely castigated for its negligence in the Cloyne Report, but it was ahead of the state in understanding the importance of mandatory reporting by those with appropriate expertise and experience in child protection.
Finlay has further issues with the level of penalties the document proposes for offences of varying gravity and notes that there is no mention of the fact that some of the offences attract gaol sentences. Again, this is an ecclesial document and the Church does not operate gaols. The penalties at its disposal are very, very limited and dismissal is really the only penalty of any significance and so necessarily applies across a range of offences of varying gravity. Finlay finds this unfair strangely enough.
There are probably few organizations in Ireland with such thorough and comprehensive child protection protocols in place as the Cathoic Church now has. Anyone truly concerned with childrens’ welfare should perhaps look beyond their dislike of the Catholic Church and focus on the plight of children who continue to be abused in home settings, a perennial problem, and one that Fergus Finlay, in his capacity as HSE Board member, should be well placed to know has become significantly worse during the last year and a half of lockdowns.