At a recent meeting at the Vatican of high church officials, the Vatican Secretary of State, Cardinal Tarcisio Bertone, told the twenty-four Irish Bishops that their country’s pedophilia scandals were “abominable sins”, as if they needed to be told that obvious conclusion. In November 2009, the Murphy report to Irish church officials concluded that obsessive concealment between 1975-2004 protected the Church but failed to safeguard its children. It was a “culture of cover-up.” Victims groups pleaded with the Pope to redress these flagrant abrogations of “Christ’s teaching.” The Pope apologized and told the Bishops to be “courageous”, but he was not.  

The Catholic Church must deal with the recent, unfulfilled promise of Pope Benedict XVI that it will never again hide the sins of pastoral administrators.  His admirable condemnation of past misconduct and his allusion to extending the statute of limitations for claims against offending priests are appropriate first steps.

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Without two changes in the Church’s practices: it’s absolute rule about the pastoral privilege by which confidential confessions are invariably protected, and its resort to confidentiality agreements in settling complaints of priests’ misconduct, his admonitions will prove illusory. The Vatican’s secrecy policies have impeded attempts to expose and punish wrongdoings by priests. 

Reportedly, the Church’s failures have caused a financial crisis—as well as a moral one—in the Irish ministry, as it has in Australia and the United States, indeed around the world. In the United States alone, records proved that 13,000 youngsters were assaulted by predatory priests, 300 priests were convicted of these crimes, 1,000 were severed from ministry. Some dioceses were bankrupted—over $2.6 billion has been paid in known damages—no one knows how many more crimes were shrouded in secrecy. 

There are two secrecy problems that need to be addressed, and redressed. First, the confidentiality of the confessional, intrinsic to Church doctrine, while benign in most situations, also has led to terrible injustices. A recently exposed Wisconsin case disclosed a priest who began his misconduct with a twelve-year-old parishioner who came to him for confession. That priest molested 200 young boys. Second, the confidentiality of settlement agreements is a questionable legal tactic misused by many litigants, and used by the Catholic Church in these settlements. Church money has been used to pay secret settlements that avoid bad publicity. Both practices led to hidden misconduct and bred repeated offenses. 

As far back as Pope Leo I in the fifth century the Catholic Church decreed that confessions for penance were not to be revealed.  By the twentieth century, canon law decreed that “the sacramental seal is inviolable” and eternal damnation would be the price for its breach.  Priests can be excommunicated for revealing confessions. 

The rationale for the rule of confidentiality is understandable—it allows tormented sinners to seek solace. The idea that penitents wouldn’t confess if they feared exposure of their secrets makes sense, but not always.  Some confess to be prevented from continuing misconduct, others to find peace and relief. Analysts have said, as Oscar Wilde remarked, “It is the confession, not the priest, which gives us absolution.” 

Protection of the confessional is deemed by the Catholic Church as strictly an ecclesiastical matter. One high church officer remarked: “The good of religion prevails over the good of justice.” But ours is not a society operating under ecclesiastical law.  While American common law and statutes originally denied the pastoral privilege, it is now generally recognized.  The Supreme Court has said the privilege “recognized the human need to disclose to a spiritual counselor, in total and absolute confidence...and received consolation and guidance in return.”  But this privilege is not absolute, and all clergy are mandated by state laws to report serious criminal conduct, such as child abuse as was involved in the Church cases. Pastors, imams, rabbis follow the mandate; Catholic priests do not. 

The absolute privilege in the Catholic Church has resulted in horrible crimes and injustices that might have been avoided. One painful example occurred a few years ago. A Bronx priest knew from his communications with a parishioner that two men on trial for murder were innocent. His confessor confessed committing the crime.  Yet the priest waited twelve years, allowed the two innocent men to be convicted and imprisoned, before coming forward after his confessor died. 

In the Pope’s native Germany, a priest knew of his confessor’s ghastly murder, did nothing, and the murderer sexually tortured and murdered three eleven-year-old boys before being caught four years later. These latter crimes could have and should have been avoided. Invariably there have been unheeded warnings in these situations. The Church’s policy has been to allow priests to repent their sins, secretly, and remain repeat offenders, rather than seeking to protect their members and punish offenders. 

Some offenses involved clergy using their confidential settings to procure and perform misconduct, a recent book reported. One investigation revealed that a notorious brother had been guilty of “violation of the seal of the confession, the illegitimate use against the penitent of confidential information revealed during the confession, violation of the right of privacy…” In this author’s conclusion, the scandals were the result of “a clericalist mentality” that defended clergy rather than protecting the wards of the church. The Vatican argues that secrecy protects victims, but the victims disagree. 

Institutional self protectiveness is permitted not only by rules of pastoral confidentiality in confessions (we cannot know how many priests confessed their misconduct and were protected by the sanctity of the confessional),but also in settlements of many of the recent scandals. When civil cases are settled, confidentiality agreements are commonly added to induce private resolutions.  The practice has been criticized and modified in some courts to avoid repeated offenses of the same kind to innocent parties unaware of the dangers uncovered by the settled litigation.  A South Carolina attorney who brought suits against the Church on behalf of multiple victims of sexual abuse by priests refused to shroud the settlement in secrecy because that public enlightenment of church abuses was one of the reasons for bringing the case, and his injured clients needed closure for their healing process to work.  Victims should not feel their silence was bought, he told me. 

Many of the scandals that besmirched and bankrupted the Church in many American cities and now has spread to Europe might have been avoided if these two rules of confidentiality were modified.  In comparable confidentiality privileges involving lawyers, doctors, psychoanalysts, spouses, the rule prevails but is not absolute. And courts are beginning to refuse settlements of civil claims which contain confidentiality clauses, where similar crimes could be repeated. 

To avoid future scandals like those Pope Benedict has acknowledged, the Church’s two rules about confidentiality must be modified.  The settlement of all claims against the Church must be a matter of public record, to deter repeated offenses.  And a balanced rule which protects the sanctity of most sacramental confessions but mandates exceptions where serious, repeated, or church related crimes are involved should be enforced by Church legislators. One Vatican official stated that reporting child abuse is not prohibited by the Code of Canon Law or Vatican norms. If the Church won’t cure the problem, the secular authorities may have to do so. No American court or legislature will wish to intrude on rules of the Catholic Church, and they shouldn’t.  But they may if the Church doesn’t enforce balanced rules of confidentiality in the spirit of Pope Benedict’s entreaties. 

All institutions protect the administrators of the institutions over their clientele—prisons, schools, police, professions, even government agencies. But that fatal flaw should be especially unacceptable when with dealing with an agency of spirit and morality. Those institutions should not have to be instructed by the public or its courts or legislatures to do what it exists to do. Yet recent disclosures prove that the Church’s “highest priority was protecting the Church from scandal.” The Miami Archdiocese, and the Vatican, knew of a Cuban priest’s sexual abuse of children and permitted him to transfer to south Florida and continue his offenses. Church officials were told to “protect this priest with your accustomed paternal charity.” 

The Vatican has ignored the cardinal rule about coping with public scandals—get it all out in the open, deal with it, and move on. Instead, it has acted like it existed in an ecclesiastical world where it was sovereign, rather than in a secular, statist world that is hospitable to organized religion when it acts as a responsible part of the larger society, and critical when it does not. The result is a constant, continuing drip, drip, drip of scandal that concerns important moral matters that have no “other side.” The Catholic League of Religious and Civil Rights ran an ad in The New York Times editorial page claiming The Times’ articles about the “pedophilia crisis” really concerns a “a homosexual crisis.” Wrong! It is a Church crisis, one of taking responsibility for the crimes of its agents on children, and continuing to hide the facts and protect the wrongdoers. Doing that implicates the institution itself. 

On Good Friday, the Pope’s pastor at the Vatican compared world outrage over the Church’s conduct of this issue with persecution of Jews! As if the Church is the victim because personal misconduct of its priests does not warrant collective responsibility of the institution which shields them. Demonstrating how bizarre Church defenders have become, the Holy See's chief exorcist has claimed that criticism of the church is “prompted by the devil", New York Times columnist Maureen Dowd has reported.  

It is past time the Vatican acted like the parental power it is for its members. Its worldwide wounds need openness and treatment, no more blame denial or responsibility shifting; and fundamentally nor more secrecy. 

(Reprinted with permission from the April 12, 2010 issue of the National Law Journal. ©2010 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.)