The Response of the Holy See to Ireland is a dense document defined as much by its omissions as by its technical terminology. Here, I want to evaluate its engagement with the central issue: the degree to which the bureaucratic architecture of the Church facilitated or failed to tackle abuse, by omission, by cultural practice and political pressure. The latter three categories are carefully used. It is clear from the response that the Holy See would like the discussion to relate to formal authority: the authority to take decisions (seen as belonging to local bishops), the authority to bind (something denied to relevant documents). For them, illegitimate interference with Ireland’s domestic affairs, requires an order/directive rather than negligence/omission/insensitive practice on their part. It reviews its actions according to administrative process, not in terms of its obligations to provide, and collaborate with Ireland to ensure, effective rights protection.

The Holy See’s Obligations to Ireland

David Quinn, Director of the Iona Institute, commented on his twitter yesterday that:

The decisive point is that no-one can point to an Irish law that the Vatican supposedly interfered with directly or indirectly.

As I have outlined previously, the representatives of the Holy See, in their communications have a legal obligation not to interfere with the domestic affairs of the state, as well as the laws and regulations of that state. This is part of Irish law as laid down by Diplomatic Relations and Immunities Act 1967. Failure to comply with this entitles the Irish government to complain.

In addition, of course, there is the broader point that any actions or omissions on the part of the Holy See and or its representatives, which contributed to the perpetuation of child abuse by de facto reducing the amount of reported cases, interfered with Ireland’s compliance with its international legal obligations under relevant European and United Nations instruments. Significant issues emerge from any diplomatic communication if shown de facto to have: (i) weakened, (ii) had the potential to weaken, (iii) been of highly significant importance to public knowledge around the de facto protection of children and which was not brought to the attention of the Irish government.

Holy See’s Own Legal Obligations

The Holy See, as signatory to the UN Convention on the Rights of the Child, owes a duty under Article 34  to ‘take all appropriate national, bilateral and multilateral measures’ to prevent sexual abuse. In short it must co-operate with Ireland to protect children. The Holy See also takes on a variety of direct obligations in its conduct involving children, above all, that it shall:

take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse

At page 18 of response, in a move which is significant for international lawyers who argue about the exact status of the Vatican, the Holy See states that it is exceptional in international affairs, when it comes to defining institutional responsibility:

It should be borne in mind that the social organization of the Catholic Church…is not like that of a modern State with a central government nor is it comparable to that of a federal State.

In May this year, the Holy See also commented that “when the Holy See ratifies or accedes to an international agreement following international law and practice, it intends also to manifest its moral authority” and that “the Holy See reiterates its support for the Convention on the Rights of the Child”. Clarity is required here. In its ratification of international legal instruments it continually seeks to distance itself from direct obligations to protect rights in its actions. Does the Holy See accept it has a international legal obligation to co-operate with Ireland, to shape its conduct to protect children, and finally to submit its report to the UN on its implementation of Convention on the Rights of the Child, following the current 14 year delay?

As a process point, while Archbishop Martin yesterday defended the tone of the document on grounds that the Government asked ‘technical questions’, in fact the Holy See itself acknowledges that Mr Gilmore openly requested a response to the Report as well as the Government’s expressed views. The Holy See intentionally limited itself to those parts of the Murphy report which it regarded as directly referring to the Vatican.

Substituting technical for moral responsibility

Reading the response, the overwhelming impression is how the Holy See’s operating procedures for managing difficulties actually reflect a lot of modern workplaces. A functional division of labour delivers to each individual actor technical responsibility over an aspect of the problem, thereby lessening the opportunity to consider the moral imperative at its core. As Zygmunt Bauman has noted:

technical responsibility ‘forgets’ that a given action is a means to an end, and becomes an end in itself…thus bureaucracy moves the moral focus from the ends of the outcome to the means of the process

Under this metric, if the Papal Nuncio’s actions and the Holy See’s procedures were appropriate, in that they obeyed the dictates of technical responsibility, that their actions may have de facto led to less reporting comes across as irrelevant to the Holy See’s system of governance.

This reasoning immediately impacts on the content of the report, leading to the exclusion of any consideration of how omissions, cultural practices and political pressures within the Holy See may have contributed to the situation in Cloyne:

1. While the Holy See legitimately takes issue with the status of the document, and corrects the record in point out that recognition of the framework guidelines was not sought by Irish bishops, it does not address what the practical effect of the letter was. This is enormously significant, particularly as one anonymous bishop did admit to RTE that he, in fact, interpreted the letter as discouraging them from reporting. The letter, attacked a mandatory reporting scheme as ‘contrary to canonical discipline’ giving ‘rise to serious reservations of both a moral and canonical nature’. Anyone working in any bureaucracy or workplace knows the reality that we ‘work towards’ what we believe will please those in power. The Holy See has done nothing to undermine the contention that in effect the letter gave comfort to those who adopted the viewpoint of Monsignor O’Callaghan. The Holy See has not acknowledged that there was an obligation on its part to ensure the full and clear publication of its position in 1997, to facilitate further action by the government and further public debate. Ambiguity was a signal in an institution which was at the time extremely riven with internal disputes.

2. Omitted also was any reference to the fact that Bishop Magee wrote up two versions of his meetings with an alleged sexual abuser, one he gave to Gardaí, one of which was sent to the Gardaí .How widespread was this practice? Does the Holy See take preventative action against such practices?

3. Nowhere is the gap between norm and practice more glaringly odious than in the invocation of Cardinal Dario Castrillon Hoyos speech to Irish bishops in 1998, where he stressed that the Church ‘should not in any way put an obstacle in the legitimate path of civil justice’. Yet he also went on to attack the Irish mandatory reporting policy saying it should be revised as under it ‘the image of the bishop can be turned into more of a policeman than a true father’. As described more fully by Colm O’Gorman, in 2001, he congratulated a Belgian bishop for failing to report a suspected abuser, and preferring ‘prison to denouncing his son and priest’.

4. No reference is made to the actions of two Papal Nuncios in dealing with the Commission. As I have stated before the Holy See, was entitled to rely on its strict legal rights and to have the Commission communicate through proper diplomatic channels. It is nevertheless astonishing that it failed to offer any moral or political justification for the decision to insist on its strict legal rights. The Papal Nuncio’s rejection of an appearance before the Joint Oireachtas Committee on Foreign Affairs to explain the Holy See’s attitude to the investigation was similarly unhelpful, particularly when the Holy See, now views itself as essential to the debate.

5. Nowhere is the destructiveness of the institutional culture more visible than in handling of the canon law document, Crimen sollicitationis, first created in 1922, updated in 1962. This established strict confidential rules including the now infamous oath of secrecy to the child victim. It was kept secret with an instruction that it be kept in a secret archive and that its existence or substance was not be publicly acknowledged or discussed.  As Colm O’Gorman notes, that the Response finally acknowledges that this document was a direct engagement with the crime of child sexual abuse, something regularly denied. It certainly undermines the notion that the rape of children had not been countenanced by the Church until relatively recently. The promulgation and clarity of canon law and the related legal system is something directly within the authority of the authors of the report. Obsfucation and negligent oversight must be accounted for, particularly where it has been intentionally cultivated due to power struggles within the Holy See. The Holy See through its omissions and actions failed to protect children in its care by providing an accessible and clear regulatory framework. These are allegations accepted by some within the church, to quote the Catholic author Nicholas Carfardi:

…There seems to have been a power struggle going on between Cardinal Dario Castrillon Hoyos, prefect of the Congregation for Clergy and  Ratzinger at the Congregation of the Doctrine of the Faith over which congregation had competency in the matter of clergy who had sexually abused minors…Ratzinger won that battle, but the Vatican could not be so indiscreet as to announce this to the world, at least not under the rules of bureaucratic bella figura…instead of clearly saying so, the Vatican evidently thought it more important to maintain the bureaucratic illusion that nothing had changed. And that has caused added confusion…no legal system or system of governance can be effective when its highest value is secrecy.

 

Polemics and Truth

The pressure is now building upon the Taoiseach to account for what seems to have been an unvetted speech. There is no doubt that given the Jesuitical erudition and evasiveness of the Holy See’s diplomatic corps, the Department of Foreign Affairs would have preferred more careful control. There is a need to acknowledge the failures in the quoting of Cardinal Ratzinger’s speech and any other inaccurate claims. Yet the perameters of the Holy See’s responsibility towards Ireland are not set by speeches, but by legal norms and an accounting for the impact of its actions or inactions.

 

Readers may find it helpful to read my previous blog upon the issuing of the Murphy Report.

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Written by Darren O’Donovan

Darren O’Donovan is an Assistant Professor at Bond University in Queensland, Australia having previously lectured at University College Cork. His research interests are in administrative justice, equality and minority rights, particularly the rights of Irish Travellers. You can contact him at dodonova@bond.edu.au