Agents of Secrecy, Part Two
The “Pontifical Secret” and the Crisis
This particularly urgent issue for our time carries with it a more complicated aspect of the Secret, not only concerning what is secret as far as misconduct, but sometimes the very guidelines themselves governing the issue have been subject to the Secret.
The so-called “Summer of Shame” has reopened many old wounds in the fabric of the Church, both in the United States and most of the Anglo-Saxon world—opening some new ones, as well. Throughout, there has been much recrimination: finger-pointing, scapegoating (Dr. McCarrick, anyone?), alleged violations of Due Process, stonewalling, and “clericalism” (whatever that really means). The bishops are often (and perhaps to some degree understandably) concerned for the “optics.” “How is my diocese going to look?—how am I going to look!?” Then there are questions that go far beyond the mere “look”: What of fostering of future (and even present) vocations to the priesthood? What of the morale of our priests? What can be done for our brothers and sisters who were the victims, not only for their peace and welfare in this world, but to accompany them on the road to everlasting life? (And likewise, how can the repentant perpetrator be brought to a new offer of life in the Savior?)
And of course, the perennial question: How did things get this bad?
Attempted answers are not in short supply these days. The bishops, abbots and provincials of religious congregations are pretty much saying the same thing about the Crisis: “We’re sorry.” “We are taking measures to prevent this abuse in the future.” “We have removed x amount of priests from ministry who have been credibly found guilty of abusing children.” (We note that this last response is somewhat “optically” driven. What should be said instead of “abusing children” should be—with some exceptions—“abusing adolescent boys,” since this covers the vast majority of the cases and has been statistically proven so. (See http://www.ncregister.com/daily-news/priest-sociologist-examines-data-on-clergy-sex-abuse>) Because of the obvious conclusions that will be drawn, virtually no bishop or religious superior is saying that one—at least within earshot of someone with a recording device or a pen.
(Apologies to the reader for that digression.)
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Undoubtedly, the issues surrounding the crisis will be argued and analyzed for decades to come, in what many observers (including this writer) consider one of the worst global crises (arguably, the worst) faced by the Church since the Reformation 500 years ago. Yet it seems that there is one very under-discussed and, even more, little-known issue which really doesn’t have a single answer, but could explain much: “Why didn’t the bishops (when confronted with information by alleged victims and their family members) simply take matters in hand and involve the civil authorities?”
To better understand this issue, we have to more closely examine how the notion of “secret” in the law and lived experience of the Church has made its genuine, but arguably inadvertent, contribution to recent events.
Secret (as in “classified” or “confidential”) documentation regarding twentieth-century clergy sexual abuse was actually treated in a Vatican Instruction almost a century ago, Crimen Sollicitationis (1922), to deal primarily with the ecclesiastical crime of sexual solicitation of a penitent during confession by a priest. The (1917) Code of Canon Law stated the penalties for a such violation, but it did not provide much in the way of specifics. The very notion of such a sin and crime is virtually incomprehensible, yet problems of such “compound sins,” sadly, go back through the centuries. However, especially at various points of history, they were also relatively very rare.
The contents of this Instruction and even its very existence were classified by the Vatican. It was sent only to the bishops of the world’s dioceses—which were about 860 in number. For that reason, it remained virtually unknown to anyone outside that level of leadership. It was so confidential, that it never even appeared in any publicly-produced collections of canon law documentation. (Annuario Pontificio / [“Pontifical Yearbook”] 1922, p. 791) In addition to norms dealing with solicitation of a penitent while hearing their confession, it also provided guidance on clergy accused of a) homosexual acts, b) sexual abuse of minors—male or female and c) bestiality.
A virtually identical document was issued in 1962. According to canonist Fr. Thomas Doyle, O.P. (who has provided much of the material used in researching this essay) it, too, involved the “Pontifical Secret” (see Part I of this essay), except that specific penalty of excommunication for its violation was lifted and also contained a new section of specific norms regarding offending priests in religious orders. (The 1962 document, by the way, has been effectively “declassified” by the Vatican and is available for review on its website under “Instruction of the Supreme Sacred Congregation of the Holy Office.”) It should be noted that the 1962 document, itself, was superseded in 2001 by a new set of norms, Sacramentorum sanctitatis tutela (SST), promulgated under Pope John Paul II and under signature of the then-Prefect of the Congregation of the Doctrine of the Faith, Cardinal Joseph Ratzinger. These were further refined under a yet-another revised text of SST made by Pope Benedict XVI in 2010.
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So why is secrecy such an crucial issue within the institutional Church?
It really originates in the basic principle of the Church protecting itself from encroachment by the state and otherwise potentially hostile forces. Throughout the history of “Christendom” when Greater Europe was a truly Catholic (and later, Catholic and Eastern Orthodox) professing continent, there was an ever-present, ongoing tension between the spheres of activity between church and state. Long before the modern era, certainly prior to the Reformation, it was common (especially in Western Europe) for a cleric accused of a crime (whether ecclesiastical or secular) to be tried in ecclesiastical courts. If found guilty, depending on the nature of the crime, he would be remanded to the secular authorities for punishment. We remember in the movie Becket where that storied English archbishop criticized one of Henry II’s vassals for executing a priest who allegedly abused a young girl. Becket decried this as a violation of Due Process, as by law the cleric was to have first been tried by an ecclesiastical tribunal, and if guilty, surrendered to the Crown for execution of sentence. Such a legal principle came many centuries before what we have today taken for granted—the clear juridical separation of church and state regarding criminal and (most) civil affairs.
In a real sense, the Church was accorded a recognized legal standing and autonomy which coexisted alongside the state, almost universally, because her independence was (and still is) vitally important to her mission. It worked for nearly a millennium because the notion of a multi-cultural society—that is, in our contemporary sense—didn’t really exist. It also acted as the “higher” entity of society to provide a kind of check against the abuses of what, until the republican and democratic movements of the 17th – 18th century, were crude, even primitive administrations of criminal justice. (We have only to go back only some decades before the formation of governments in British North America to consider the rather common English capital penalties of drawing-and-quartering and stake-burning.) Part of the Church’s perception of two spheres in Christian society, working harmoniously, was also required to promote comprehensive Due Process—at least as perceived in the past.
Because the Church’s institutional mechanisms predate most governments on the planet, she has a very established system of operation. It has changed and evolved over the course of centuries, but sometimes slowly, almost glacially. Secrecy was and remains a principle with a “macro” and “micro” aspect. The latter would deal, for instance, with international relations maintaining the freedom and independence of the Church—as Christ’s holy people—to exist and operate as a society in the world. As it were, “in the world, but not of it” (Cf. Jn. 15: 19). On the former level, John L. Allen, Jr. noted that, in principle, secrecy (in this case, as it relates to the abuse issue) is “designed to protect the dignity of everyone involved [in a crime], including the victim, the accused, their families [sic] and their communities.” (Crux, September 22, 2017) This is based first and foremost on making provision both for Christian justice and Christian charity. It also applies to a host of other matters, ranging from the selection of new bishops, establishment of dioceses and investigational matters.
Ultimately, the prerogative of secrecy is actually meant to be an extension of the Church’s ability to act justly and independently continue its mission within society. This also extends (in the case today’s of ecclesiastical crimes) for the victims and the perpetrators. As Fr. Doyle explains:
The secrecy that was (and still is) imposed on parties and witnesses in canonical proceedings is intended to assure witnesses that they can speak freely. It is also intended to protect the reputations of the accused and accuser until guilt or innocence is determined. The … insistence on secrecy throughout the  document [discussed above] is probably related to two issues: the first is the scandal that would arise were the public to hear stories of priests committing such terrible crimes. The second reason is the protection of the inviolability of the sacrament of penance [that is, in the case of solicitation during confession]. (From Thomas Doyle, O.P., J.C.D. Emphasis added.)
The Catechism also provides an important insight, dealing with “[p]rofessional secrets … or confidential information given under the seal of secrecy [NB, not the sacramental seal of Confession] which morally must be kept, save in exceptional cases where keeping the secret is bound to cause very grave harm to the one who confided it, to the one who received it or to a third party … Even if not confided under the seal of secrecy, private information prejudicial to another is not to be divulged without a grave and proportionate reason” (Catechism of the Catholic Church, para. 2491, emphasis added).
So, in a real sense, the Church is trying to apply a basic principle of the Christian life, both to institutions (including the Church, herself) and to individuals.
But now the Pontifical Secret, as it is known today (because it relates directly or sometimes indirectly to the actions governed by the Holy See) itself has, arguably, come into public scrutiny as never before.
As many will remember, last summer then-Cardinal McCarrick had been public accused of misconduct with a male minor (which later was alleged to have taken place during the Sacrament of Penance), along with inappropriate physical actions, on several occasions, toward some of his diocesan seminarians when serving as Archbishop of Newark. Archbishop Carlo M. Vigano, who for a time was papal nuncio to the United States, admitted his knowledge of substantial and documented details regarding the McCarrick case. This fact was made by Vigano in a personal September, 2018 global-level declaration—which, it should be noted, technically violated his pledge to keep the Pontifical Secret:
Certainly, some of the facts that I was to reveal were covered by the pontifical secret that I had promised to observe and that I had faithfully observed from the beginning of my service to the Holy see. But the purpose of any secret, including the pontifical secret, is to protect the Church from her enemies. I was a witness, not by my choice, of shocking facts and, as the Catechism of the Catholic Church [quoted above] states (par. 2491), the seal of secrecy is not binding when very grave harm can be avoided only by divulging the truth. Only the seal of confession could have justified my silence. (Statement of Archbishop Carlo Maria Vigano, Titular Archbishop of Ulpiana / Apostolic Nuncio, September 29, 2018)
Such a declaration has immediate and truly historic consequences.
Not only did a high ranking Vatican official (he was, at one time, the minister in charge of all nuncios deployed by the Holy See) violate the Pontifical Secret, but in so doing challenged the personal authority of the Holy See itself, particularly in the person of its current incumbent. (It is interesting to note that no action, at least known publicly, has been taken against Archbishop Vigano by the Holy See.) While one could perhaps question his prudence in doing so, few could question his conviction in conscience. Yet as the Archbishop maintains, in line with the Catechism, the seal apparently is not binding in the face of “grave harm” which could be caused maintaining it.
Strange times, indeed.
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There has been a great deal of speculation, closer to home, that the Secret has been imposed by the Holy See on local dioceses, with regard to clerical abuse, to reduce or eliminate harm to the good name of the Church and indiviudals. Even as recently as the 2001 document, De delectis gravioribus (“Concenring grave delicts”), participants in ecclesiastical criminal proceedings were still bound under the Pontifical Secret. The reality was (and is) that the Secret was invoked for the reasons given earlier—primarily for protection of rights, both of the accused and the alleged victim. At the same time, Vatican officials insisted, as a 2010 article put it, that “confidentiality imposed on the church’s internal handling of abuses cases does not exempt bishops and others form reporting serious facts and accusations to civil authorities … [because Church law is] not a substitute for civil law, which deals with the crime separately.” (John Thavis, “Vatican: Bishops should follow civil laws on abuse” National Catholic Resister, May 10, 2010. Emphasis added.)
But that is the comparatively, very-recent now.
As far back as 1946, canonist Aurelio Yanguas suggested that the imposition of the Secret was also intended to provide speedy and quiet action against the crimes mentioned in the 1922 Instruction, presumably before detection and indictment by secular courts, and thus preventing public scandal. (Brendan Daly, “The Instruction Crimen Sollicitationis on the Crime of Solicitation: Confusion or Cover-up of Paedophilia?”The Canonist 7, n. 10  28)
But there was an arguably more delicate and complicated mater, related to the medieval principle discussed earlier regarding the separation of the spheres of church and state. Even as late as 1997, a senior Vatican official stated that mandatory reporting of child/youth abuse was in conflict with Church law and could even invalidate a church administrative or penal process against a cleric. (Ibid.) Undoubtedly, such an opinion—actually, an exaggeration—would have prevailed in many quarters, at least during much of the 20th century. Bishops almost certainly interpreted the imposition of the Secret strictly so that everyone, save relevant Church officials, the accused and the victims of the crimes, would be excluded from the process—including civil authorities. In addition, because the Secret and (for a long time) the guidance behind it was—well, secret—they were likely placed in an additional conflict of interest. Disobey the Holy See on a matter of extreme gravity or involve civil government in a process ostensibly forbidden to it. And keeping the Secret, not-so collaterally helped to also avoid scandal and potentially grave disruption to the life of the Church.
If this was the rationale, perhaps an outside observer could simply and easily conclude that the bishops are a bunch of corporate “yes men” who cared only for the institution and their careers, but not for the kids (again, teenage boys, mostly) or the horrors inflicted upon them by their clergy; indeed, by some of their own number. Yet virtually now, however, everyone from the pope on down the ranks of universal the hierarchy has admitted—explicitly—that the policies constructed to handle the issues endemic to the Crisis, until recent years at least, were at least partially defective and had to be caught up to meet the proper demands of society, both Christian and secular.
But bishops, for whatever their perceived or real faults—like all we sinners in this world—by and large are a loyal bunch when given very tight and specific orders. Not, by any means, in the manner of a totalitarian underling who will commit heinous acts “because he was just following orders,” but because for a long time it was—for many—difficult to fulfill demands which, themselves, had differing and competing values, goods and ends: the protection of young people from sexual victimization; the desire to hold out the hope of repentance and conversion to those who have sinned horribly and gravely, yet submitting them to right-justice under law, and when deemed necessary, to protect society from them; the obligation to maintain in the right time and place a principle (secrecy) designed with proper and upright intentions; the crying need to hear and (to whatever reasonable and realistic extent) support temporally or spiritually those who have been victimized; providing justice and firm restoration to those falsely accused; avoiding exposure of the Church of Christ to ridicule—as she is the complete, divinely-founded and only-authentic communion of faith within in the Christian body. Nineteen years into the new century and the new Millennium, we are realizing the way that these goods and others must be realigned and rebalanced, but all in their rightful places.
In this wise, the Church in her human members can, does and will likely continue to come up short, on occasion, in the policy-making process—whether dealing with the juridical, organizational, liturgical or geo-political. These often will not be fully determined to be good or bad but in hindsight. To complicate this, there will also be accompanying expressions of great human frailty, stupidity and coldness in the midst of that discernment process which must be checked and overcome by God’s abundant grace.
And let us make no mistake. Without grace, without that utter and primary reliance on the Spirit of God who helps us to “savor what is right,” (the collect of Come, Holy Spirit) no amount of policy change, psychological testing for clergy, “human formation” in seminaries, listening sessions, background checks or victim compensation funds—as important or significant as these might be—will genuinely, thoroughly and ultimately solve this all too fallen-human drama that has cast such a horrid, truly hellish shadow on the Church of the New Millennium.
Here, I would conclude with the guiding words of the great St. John Paul II, himself.
Going in search of man through his Son, God wishes to persuade man to abandon the path of evil which lead him farther and farther afield. “Making him abandon” those paths means making man understand that he is taking the wrong path; it means overcoming the evil which is everywhere found in human history. Overcoming evil: This is the meaning of the Redemption … through the sacrifice of Christ, wherein lies victory over evil, over sin, and over death itself. (John Paul II, Apostolic Letter, Tertio Millennio Adveniente, November 10, 1994, n. 7.)