October 27, 2002
Focus: Irish state vs church: Whose law reigns?

Micheal McDowell, Minister for Justice.

As the justice minister calls for an independent inquiry into abuse, the days of canon law protecting paedophiles may be numbered, writes Emily O'Reilly in The Sunday Times

Michael McDowell had been busier than usual before Tuesday’s cabinet meeting. By the time the justice minister’s colleagues gathered around the table in the cabinet room, each had before them an unusual set of photocopied pages. McDowell had culled them from a book he had pored over the night before. Dated 1995, the book carried the imprimatur of Cardinal Desmond Connell, with a direction to those who read it that it was “free from doctrinal or moral error”.
The book, The Canon Law: Letter and Spirit: A Practical Guide to the Code of Canon Law, had been compiled by Monsignor Gerard Sheehy. Based at Archbishop’s House in Dublin, he is a priest, a barrister, and a consultant to the Vatican Council for the interpretation of the laws of the church.

Canon law governs the activities of the Catholic church. As well as marriage, baptism and ordination, it deals with the church’s internal laws regulating international treaties between the Vatican and sovereign nations, finances, property, contracts and crime and punishment.

McDowell had cut through much of this, isolating and photocopying for his colleagues those parts of Sheehy’s book that bore directly on the issue of the day — media revelations about a possible cover-up within the Dublin archdiocese of widespread clerical child abuse or, put bluntly, of the rape of young children by priests.

The debate had raged on the airwaves for five days, generating bulging mailbags for chat shows and current-affairs programmes. Some correspondents and clerics appeared to suggest that canon law had been legitimately used to protect suspected and known child abusers, that a cult of secrecy to which everybody from the hierarchy down was bound, had allowed offenders to go unpunished, to be retained in ministries and free to abuse again.

McDowell wondered what it was in canon law that allowed this to happen. The book provided the clue — law 1,395. It deals directly with clerics who have sex with minors under the age of 16. At its core, it directs that such clerics will be punished under canon law if there is a high degree of “imputability” — personal responsibility — involved.

Critically, it says that an offending cleric’s personal responsibility may be seriously diminished if he is engaged in “paedophilia”. It describes this as: “the act or fantasy of engaging in sexual activity with pre-pubertal children as a repeatedly preferred or exclusive method of achieving sexual excitement.

“Those who have studied this matter in detail have concluded that proven paedophiles are often subject to urges and impulses which are beyond their control.”

Its meaning was clear: clerical child abusers could go unpunished by their church because what they were suffering from an “illness”, not comitting a crime.

There was more. Secrecy was paramount in any investigation of abuse. There was no obligation to tell the civil authorities — internal documentation had in fact to be withheld from the police and others. Within the Catholic church, cardinals, archbishops, bishops and priests were legally bound to hide abusers from the civil law. The bizarre behaviour of, among others, Connell, the man at the eye of the current storm, began to make some sense.

In June 1997, Marie Collins, a middle-aged Dublin woman, went public with allegations that she had been abused as a child patient in a Dublin hospital in 1960. The abuser was Father Paul McGennis, the hospital chaplain. Connell, then archbishop, issued a statement noting his “distress” over Collins’s abuse and that of another young girl by McGennis in similar circumstances, saying the diocese was co-operating with gardai. Five years later, the disingenuousness of that sentence has come back to haunt him.

Earlier this year, it was revealed that Connell and his then chancellor, Monsignor Alex Stenson, knew more than they had let on about McGennis. The chaplain had admitted that he had abused children, but neither Connell nor Stenson had reported his confession to the gardai.

The archdiocese had also refused to hand over files. Connell issued a statement in April this year in a blatant attempt at damage limitation. He said he had never claimed the diocese had “fully” co-operated with the gardai.

Furthermore, he indicated that canon law forbade Stenson from passing on what the church knew of McGennis’s paedophilia. “Monsignor Stenson felt he was bound by confidentiality under canon law and therefore was not free to disclose voluntarily to gardai what he had learned,” Connell said in his statement.

The McGennis case is the clearest example to date of the use of canon law — which has no legal force under civil law — to protect a known abuser. Had McGennis not admitted his crimes to gardai, he might have been free to abuse again.

The provisions of canon law would have been properly executed, protecting a cleric guilty of no church crime, suffering simply from an “illness” that compelled him to abuse children.

Connell’s behaviour and that of others within the Irish Catholic hierarchy was not unique; there are parallels with experiences in the Boston archdiocese. In recent years, Cardinal Bernard Law has been accused of covering up clerical sexual abuse, even to the point of having to make depositions about his role in courts of law.

The Boston cardinal subscribed to the canon law “belief” that paedophilia was an illness for which the perpetrator was not responsible. In one case, that of Father John Geoghan, he sympathised with the abusing priest until the police moved in.

In a 1996 letter to Geoghan, responding to a request to retire from the priesthood, Law wrote: “Yours has been an effective life of ministry, sadly impaired by illness. On behalf of those you have served well, and in my own name, I would like to thank you. I understand yours is a painful situation . . . God bless you Jack.”

Geoghan had been abusing children since 1974.

THE book on canon law gave McDowell an idea of what he was up against. Despite claims of future openness, of a willingness to co-operate with investigations, church law still appeared to provide abusers with room to wriggle.

If Connell was not beyond using it to evade his civil responsibilities in 1995, might he and others not attempt to use it again? The minister briefed his colleagues on his planned approach, then took on the cardinal in public. Pat Kenny’s radio programme provided the platform.

In detail, and in layperson’s language, he went through the church’s legal provisions, making sure his audience understood their import — canon law protects abusers. He then intoned that it had no legal force outside the church; that civil law was paramount, that church law had as much sway as golf-club rules.

McDowell called in Noel Conroy, the deputy garda commissioner, to discuss what further steps could be taken to make sure that all those involved or colluding in child abuse could be investigated and charged if possible.

A dedicated unit was set up. A senior detective, Sean Camon, was charged with going over old files, spotting gaps and analysing whether the full force of the law had been felt.

Later, McDowell met Colm O’Gorman and Andrew Madden, the two former abuse victims who lead the One in Four lobby group. There was a meeting of minds, according to O’Gorman.

Both sides agreed that whatever type of investigation was decided on, it would have to be one that was “right”, would deal with all the issues and would not be subjected to delays and legal challenges.

By Wednesday evening, it was clear that Connell realised what he was up against. A statement issued through his office was a gauntlet laid at McDowell’s feet.

At first glance, it appeared conciliatory, open even. But then, it came from a man who had made a deliberate distinction between “co-operating” with gardai and “fully co-operating” to avoid disclosing vital information from the gardai.

Connell’s statement began with yet another repetition of his “abhorrence” of the “evil” of the sexual abuse of children by priests in the Dublin diocese, but it then went on to say: “I am only too well aware that repetitions of such sentiments on my part at this stage may serve little purpose.”

The next sentence appeared unambiguous. “Establishing the truth,” said Connell, “as unambiguously and as objectively as possible is the essential first step in moving beyond this shameful issue.”

So far so good. But he then went on to outline what he considered to be the best body to establish that truth — the commission he had helped to form, under the chairmanship of a retired judge, Gillian Hussey, and funded entirely through three church bodies: the Bishops’ Conference, Conference of Religious of Ireland (CORI) and the Irish Missionary Union (IMU).

Connell vouched for its independence. He dismissed suggestions that Hussey and her team would not to be able to access all relevant documents. “It is our absolute determination,” said Connell, “that judge Hussey, having where necessary heard the relevant expert advice, will be the arbiter in this matter, as in others connected with the inquiry.”

A few miles away, in the justice department, McDowell and his officials examined the statement with growing indifference. The cardinal had moved too late. The game had moved on.

He and the former judge could audit all they liked, but it would be the civil authorities, mandated through legislation, that would be the ultimate truth-seekers. “Events have overtaken Hussey,” said one justice official. “That commission has the fingerprints of the church all over it; it’s a non-runner.”

THE dismissal of the cardinal’s commission again had its parallel in America. When the New York archdiocese recently moved to set up its own audit of clerical sex abuse, district attorney Jeanine Pirro was unmoved.

The Boston Globe reported: “Pirro was dismissive of the archdiocese’s idea of a commission to review cases of priests accused of sexual abuse.

“So were the other prosecutors who met with archdiocese officials at her office. After a church lawyer sang the praises of potential commission members, including former judges and prosecutors, one prosecutor interrupted, saying: “With all due respect, I don’t care if Jesus Christ is on the commission.”

O’Gorman said he had no doubt about the integrity of Hussey or her team. What concerned him was the attitude of the priests and others who might come before it, and the possibility that they might use canon law to avoid scrutiny.

“When Father Tony Walsh was defrocked,” said O’Gorman, “he used every bit of canon law he could to have that sentence revoked. His appeal lasted for years, during which time he was allowed to continue to serve as a priest. What’s to stop other priests doing the same?” Julian Deale, a lawyer who has dealt with many clerical sex abuse cases, agreed. “The only inquiry worth anything is a statutory one.”

As McDowell realises that there is a weight of expectation on his back, public interest in — and shock at — clerical sex abuse has never been greater. The cardinal has lost much of his moral authority. If the state really wants to pounce, there may never be a better time.

McDowell knows that the public wants the clerical abuse equivalent of the Flood interim report.

There are details to be ironed out. Much of the hearings, by their nature, will have to be held in private. Safeguards have to be put in place to avoid malicious claims being made against innocent priests.

Deale said such matters could be dealt with and that he was confident that McDowell could, and would, produce a viable way forward. Connell insists he will follow his “conscience”, but it is hard to decipher what that means.

The cardinal’s face appears on the One in Four website and underneath there is the legend: “It’s time to play the music; it’s time to light the lights.” Little did Connell imagine that it would fall to a Gonzaga boy to do the tuning up.

Posted by paul at October 27, 2002 11:35 PM
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