‘Pontifical secret’ still has role despite its abolition in sex abuse cases, expert says

ROME – When Pope Francis earlier this week abolished so-called pontifical secrecy for cases of clerical sexual abuse, for many Vatican outsiders it was the first time they had ever heard of the concept, which in some circles came off as archaic and, well, secretive.

However, according to experts, the “pontifical secret” is not a moot practice that’s outlived its usefulness, but rather still serves several concrete needs in the modern church, even with the new changes.

Father Francis Morrisey, a Canadian canon law expert, said the concept of the pontifical secret is akin to the legal concept of attorney-client privilege, or the confidentiality a doctor must maintain with their patient.

“If there’s no confidentiality for anything, we have real problems,” he said, speaking to Crux.

The concept of papal secrecy dates back to the 12th century inquisition, when secrecy was widely imposed on those conducting investigations into allegations or suspicions of heresy.

According to Morrisey, there was a “standard understanding” of what this secrecy implied and who was bound by it until 1974, when Pope Paul VI issued a canonical instruction called Secreta continere in which he essentially outlined the oath those sworn to papal secrecy are to take and gave it its current name of “pontifical secrecy.”

Prior to 1974, it has simply been referred to as “the secret of the Holy Office,” in reference to the Vatican’s Congregation for the Doctrine of the Faith.

Founded by Pope Paul III in 1542 under the name of “the Supreme Sacred Congregation of the Roman and Universal Inquisition,” it was tasked with carrying out inquiries into heresy and defending Catholic doctrine.

Between 1908 and 1965 it was formally called “the Supreme Sacred Congregation of the Holy Office,” and then it was renamed “the Sacred Congregation for the Doctrine of the Faith.” It received its current name in 1983, when the most recent version of the Code of Canon Law was published.

In 2001, St. John Paul II ordered that clerical abuse cases be placed under pontifical secrecy in a bid to protect the privacy of those involved. Francis’s decision reversed that move in a bid to help assure transparency in the process and utmost cooperation with civil authorities.

On Tuesday, Francis issued two rescripts practically eliminating the so-called “pontifical secret” in cases of clerical sexual abuse and raising the age for what constitutes the crime of possession of child pornography under church law to images of anyone under 18.

According to Morrisey, despite doing away with the pontifical secret in abuse cases, it still proves useful in a variety of other circumstances.

Apart from abuse cases, which as of Jan. 1, 2020 are no longer under pontifical secrecy, the secret still applies to papal conclaves; the appointment of bishops and cardinals and consultation on these appointments; drafts of treaties to be made with states; drafts of laws being written; financial details of the Holy See, or even modern accusations of heresy. Breaking of these serious matters can trigger severe penalties, such as excommunication.

Those who work in Vatican Secretariat of State or on Vatican tribunals, as well as Vatican diplomats, are to varying extents sworn to papal secrecy.

Public debate about pontifical secrecy exploded in 2003, when CBS broadcast an exposé pivoting on a 1962 Vatican document called Crimen Sollicitationis, which dealt with the canonical crime of “solicitation,” meaning a priest abusing the confessional to proposition someone sexually. Among other things, it imposed secrecy on canonical investigations of these cases and other sexual misconduct by a priest.

At the time, many commentators criticized Crimen as proof that the cover-up of clerical abuse was a systematic Vatican policy. However, canon lawyers and legal experts have consistently argued on behalf of the legitimate uses of “secrecy,” or confidentiality, allowing witnesses to speak freely and priests to protect their good name until guilt is proven.

Speaking to journalists Dec. 18, Bishop Juan Ignacio Arrieta, secretary for the Pontifical Council for Legislative Texts, said Francis’s new norms have essentially “declassified” documents on abuse cases.

The pontifical secret itself has not been done away with, he said, explaining that it still serves a purpose, most commonly in episcopal appointments. Abuse cases, he said, now fall under what is known as the “secret of the office,” which covers virtually everything that happens in the Vatican, whereas more serious matters involve the pontifical secret.

According to Morrisey, the most important “secret” other than pontifical secrecy, also remains intact: the seal of confession, which forbids priests from sharing details of confessions they’ve heard on pain of excommunication.

After news broke of the pope’s move on abuse cases Tuesday, critics immediately took issue with the fact that the seal was still to be upheld.

However, Morrisey said that even if the pope wanted to lift the seal of confession, “he can’t. That would totally ruin the sacrament. Nobody would go if they knew it would be talked about.”

Should a priest reveal what was said to them during confession, it would be “a violation of the person’s conscience. That’s primary, the dignity of the person,” Morrisey said, explaining that if the pope wanted to, he has the authority to remove the penalty for breaking the seal, but that will likely never happen.

“A priest has to be willing to go to jail if he’s convicted,” Morrisey said, adding that if abuse comes up in the confessional, priests can urge victims to tell them the information outside of confession, and they can refuse to give absolution – the full pardon of one’s sins – to an abuser unless they turn themselves in.

Morrisey also spoke of the pope’s decision to change the age of what is considered as a minor in child pornography from 14 years of age to 18, and his decision to allow laypeople to be competent lawyers in abuse cases.

In 2001, John Paul II had issued an exception to the law allowing laypeople to serve as lawyers upon request and with approval, however, what Francis has done is toss out the need to ask for special permission.

“He’s cutting down on the red tape,” Morrisey said.

Responding to criticism of why it took so long for the Church to declare images of anyone under 18 versus 14 as child pornography, which had been the norm prior to Tuesday, he said this was in part because when the law was drafted, 14 was considered the age of puberty and therefore the age someone could get married.

Although this notion has shifted, he said many countries still allow people to get married at a young age, and since there is “a natural right to marriage,” there has been a hesitancy among canonists to make a universal law that could negatively impact a person’s right to get married.

However, Morrisey said that overall he finds the raising of the age “helpful,” apart from the problem of verification, as distinguishing an 18-year-old from a 17-year-old or someone even a few years younger can be difficult.

These decisions, he said, can be called “a shift, but not an earthquake shift.”

However, he said the ending of secrecy for sex abuse cases was different – “I would say that is revolutionary.”

Follow Elise Harris on Twitter: @eharris_it

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