Received by email from Tom Doyle.
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THE 1922 INSTRUCTION AND THE 1962 INSTRUCTION
“CRIMEN SOLLICITATIONIS” PROMULGATED BY THE VATICAN
Thomas Doyle, O.P., J.C.D.
March 12, 2010
1. Confession of sins to a priest in a private, totally confidential setting has been the norm in the Catholic Church since the fifth century and possibly earlier. It replaced the public confession of sins which had been common in the earliest Christian communities. In 1215 the Fourth Lateran Council required Catholics to confess their sins at least once a year. With the advent of the private confession of sins came the abuse known as solicitation for sex in the act of sacramental confession. Unscrupulous priests began to use the intimacy of confession as an opportunity to seduce the penitent into some form of sexual contact. This abuse is particularly heinous because it takes advantage of a person when he or she is most vulnerable and susceptible to the abuse of priestly power. It is not known when the very first reports of solicitation became known, but by the 16th century the Church had begun to pass legislation to control and eradicate this vile form of abuse.
2. The Popes and various regional bishops issued a series of disciplinary laws against solicitation, beginning in 1561 and extending to 2001. Papal laws were promulgated in 1561, 1622, 1741, 1869, 1917, 1922, 1962, 1983 and 2001. In addition to the legislation itself, the church courts prosecuted individual cases in great numbers. The most complete records have been found in the Spanish and Mexican tribunals and reveal a shockingly high volume of complaints from women and men, accusing priests of solicitation and sexual abuse in a variety of forms. There are also cases from schools attached to monasteries where the priests used the confessional to seduce young boys. The most complete study of cases from the Spanish tribunals revealed that between 1723 and 1820, 3775 cases were completed and sentences handed down. (Charles Henry, A History of the Inquisition in Spain. (New York, MacMillan, 1907), p. 135.) This did not represent the total number of cases presented since the majority were abandoned or never completed.
3. The first Code of Canon Law was promulgated in 1917. Solicitation was listed as a canonical crime (c. 2368). The canon mentions several penalties including possible dismissal from the clerical state. The second paragraph imposes on the person solicited a grave obligation of reporting or “denouncing” the priest. Failure to do so within one month resulted in an automatic penalty of excommunication. Thus, the one soliciting can be removed from the clerical state and consequently from the active priesthood but the victim or penitent faces an even more severe penalty which is exclusion from the Church itself. The new Code contained as an appendix the apostolic constitution Sacramentum poenitentiae, issued by Pope Benedict XIV on June 1, 1741. This was the most solemn pronouncement against solicitation issued to that time as well as the most complete treatment of the nature of solicitation as a crime.
4. The Congregation of the Holy Office issued a decree in the form of an instruction on June 9, 1922. The decree was signed by Cardinal Merry del Val and issued under the authority and with the explicit approval of Pope Pius XI. The formal name was “On the Manner of Proceeding in Cases of Solicitation.” The instruction was essentially a set of procedures to be followed by bishops for the investigation and prosecution of priests accused of solicitation. These procedures replaced the penal procedures contained in the Code of Canon Law.
5. There are several aspects of this decree which are of particular importance. They will be listed here and covered in greater detail later in this paper:
a. The document was sent to every bishop in the world
b. Absolute secrecy was imposed on the document itself.
c. Three other sexual crimes committed by clerics were also to be investigated and prosecuted according to the norms of the instruction: same sex relations, sexual abuse of minors and bestiality.
d. The highest degree of secrecy, the Secret of the Holy Office, was imposed on everyone involved in the process from the time it started. Violation meant immediate excommunication.
6. The 1922 instruction was replaced by a similar document, commonly referred to by its Latin title, Crimen Sollicitationis. It was issued by the Congregation of the Holy Office on March 16, 1962, under the signature of the Prefect, Alfredo Cardinal Ottaviani, and with the approval of Pope John XXIII. This is the normal manner of receiving Papal approval for documents of this nature. Like its predecessor, it was then sent to all the bishops in the world. The bishops were admonished to maintain strict confidentiality about the document and ordered not to allow it to be reproduced or commented upon.
[This text is] to be diligently stored in the secret archives of the Curia as strictly confidential. Nor is it to be published nor added to with any commentaries.
7. Crimen Sollicitationis remained in effect until 2001 when the Vatican published a new set of procedures for investigating and prosecuting especially grave canonical crimes, including certain sexual crimes committed by the clergy. Two official documents were issued. The first was an apostolic letter of Pope John Paul II, known by its Latin title Sacramentorum sanctitatis tutela, by which the actual norms were promulgated. This letter, dated April 30, 2001, was followed on May 18, 2001 by an official document that contained the actual norms. This latter document was signed by Cardinal Josef Ratzinger, Prefect of the Congregation for the Doctrine of the Faith. Both documents refer to certain serious canonical crimes and among those is sexual abuse by clerics. These documents represent revised procedures to be used by Bishops and major religious superiors in response to allegations of clergy sexual abuse. Although Cardinal Ratzinger signed the document containing the norms, the source of the authority by which they became Church law was Pope John Paul II.
8. Clergy sexual abuse issues have been handled by the Congregation for the Doctrine of the Faith and its predecessors since the 18th century. This congregation was first known as the Supreme Sacred Congregation of the Roman and Universal Inquisition (1542-1908). At the beginning of the 20th century Pope Pius X changed the name to the Supreme Sacred Congregation of the Holy Office. After Vatican Council II, the name was again changed to the Sacred Congregation for the Doctrine of the Faith (1965) and with the promulgation of the revised Code of Canon Law in 1983, the word “Sacred” was dropped. Cardinal Ratzinger, presently Pope Benedict XVI, had been the prefect, or head, since 1981. Although he signed the letter containing the revised norms and quite possibly had a direct role in drafting it, the procedures themselves had to be approved or promulgated by the Pope for validity and effect. Cardinal Ratzinger became Pope Benedict XVI in 2005 and appointed William Cardinal Levada to succeed him as Prefect of the Congregation for the Doctrine of the Faith.
9. Under ordinary circumstances Crimen Sollicitationis would have ceased to have legal force with the promulgation of the 1983 Code of Canon Law. This was not the case however, and the words of the subsequent document, commonly known as De delictis gravioribus, signed by Cardinal Ratzinger, clarify this issue:
At approximately the same time the Congregation for the Faith, through an ad hoc Commission it had established, devoted itself to a diligent study of the canons on delicts, both of the Code of Canon Law and the Code of Canons of the Eastern Churches, in order to determine “more grave delicts both against morals and in the celebration of the sacraments” and in order to make special procedural norms “to declare or impose canonical sanctions, “because the Instruction Crimen Sollicitationis, issued by the Supreme Sacred Congregation of the Holy Office on March 16, 1962,(3) in force until now, was to be reviewed when the new canonical Codes were promulgated.
10. This position has been reiterated by canonical scholars and by officials of the Congregation for the Doctrine of the Faith itself. The officers of the Canon Law Society of America visited the Congregation for the Doctrine of the Faith in 1996 and discussed the document with the secretary of the Congregation who was Archbishop, now Cardinal, Tarcisio Bertone. In its June 1996 newsletter the Canon Law Society reported on their visit:
The norms on solicitation cases issued in 1962 are currently under review by a commission within the CDF. New norms are required in light of the revision of canon law. In the interim, the 1962 norms should be followed, with obvious adaptations.
11. Msgr. Brian Ferme, former Dean of the School of Canon Law at Catholic University of America, Washington D.C., in an affidavit submitted in a California civil case in 2005 stated that “technically the 1962 Instruction was in force until the publication of the 2001 document by the Congregation for the Doctrine of the Faith.”
12. The 1922 and 1962 documents are identical in content. The 1962 document however contains an appendix which provides the formularies to be used for the various steps in the judicial process. Both the 1922 and 1962 documents were intended for use in cases involving diocesan priests as well as priests who were members of religious communities.
13. Crimen Sollicitationis was sent to every bishop in the world; yet detailed awareness of its contents has been limited to bishops, and other church officials with a need to know. Unlike most official legal documents issued by the Holy See, this document as well as its 1922 predecessor were not included in any of the canonical collections, official or private. Although some unofficial sources have claimed that the 1962 document was only sent to bishops upon request, there is no reason to believe such an assertion. The fact that a copy of the document may not be found in diocesan archives or a bishop’s personal files does not constitute proof that it was not sent to all bishops. An Instruction is a form of document or communication used by the Holy See to assist in understanding and applying certain norms in Canon Law. An instruction is not a new law that replaces other legislation. Rather it may be described as an enhancement to assist in the application of existing laws.
14. Although Crimen Sollicitationis was published with orders that it remain confidential, this did not prohibit it from being studied after its promulgation. Francis Cardinal George, Archbishop of Chicago, testified in 2008 that the document was known to him as a seminarian and that it was studied as part of a course on moral theology:
Q. Did you know that the Office of the Holy See through the Congregation of the Doctrine of the Faith had implemented a protocol and an instruction to all the superiors across the world regarding solicitation in the confessional?
A. What was the year of that protocol please?
Q. The year the protocol was issued was 1962.
A. Oh. Okay. Then yes.
Q. My question goes to 2002 and did you know that such a protocol had been issued and disseminated by the Office of the Holy See to the superiors?
A. Yes. I was a seminarian in 1962 and in moral theology class that was the document that was given us when we discussed the sacrament of penance. (Deposition in Doe et al vs. Archdiocese of Chicago, Jan. 30, 2008, p. 24-25)
15. Bishop Joseph Madera, retired bishop of Fresno, also testified in a deposition (Coordinated proceeding, Clergy Cases III, March 1, 2006) that when he was a pastor in Los Angeles in 1962, the archbishop called a special meeting of the priests to discuss the document:
Q. Have you ever seen any protocols issued by the Vatican at any time while serving
as a priest or as a bishop that deals with crimes of solicitation in the confessional and protocols dealing with it?
A. I was familiar that we had to take action. I was informed.
Q. By the Vatican?
Q. How were you so informed?
A. I was in Oxnard and the Bishop of Los Angeles used to call us to meetings and explain to us what kind of important issues had been published.
Q. Did you understand that when it came to crimes of solicitation in the confessional, if such an accusation was to be made or was made, it was to be kept secret under those protocols?
A. No. I had a very clear idea what I was supposed to do in those cases.
Q. What were you supposed to do?
A. Report it to Rome immediately. (P. 156, 157)
Q. Bishop Madera, you had mentioned that in connection with our discussion about the protocols from the Vatican and the solicitation in the confessional, that there was some kind of meeting with the archbishop where these protocols were discussed. When was that?
A. With the Archbishop of Los Angeles?
A. Probably in the early sixties. Probably.
Q. Was that then Archbishop Manning?
A. Yes. (P. 159. 160)
16. The 1962 document Crimen Sollicitationis was issued before the Second Vatican Council had taken place and before the revision of the present Code of Canon Law (1983). The Vatican practice of issuing special procedural rules for its various courts or tribunals is not unusual. It is also not unusual to have a special document issued for a specific type of problem which in this case was solicitation of sex in the context of sacramental confession.
17. Title V of the document (and the 1922 document as well), “De crimine pessima” includes the crimes of homosexual sexual acts, sexual contacts with minors and bestiality. These crimes are also to be processed according to these special norms. The document does not imply that these crimes were to have been perpetrated through solicitation in the confessional. It included them under the title “De crimine pessima” or “The worst crimes” presumably because of their serious nature. This gravity caused them to be included under these special procedural norms. The 1922 document has an identical section. The norms of both documents were thus established as the obligatory procedures for prosecuting cases of four separate and distinct canonical crimes, namely, a) solicitation for sex in the act of sacramental confession, b) homosexual sex, c) sexual abuse of minor males or females, d) bestiality or sex with animals. It is therefore incorrect to state that the norms and procedures of Crimen Sollicitationis are applicable only to cases of solicitation for sex in the confessional.
18. These four types of sexual crimes were already included in the Code of Canon Law (1917 version). Solicitation is covered in canon 2368, par. 1 and sexual contact with minors and bestiality in canon 2359, 2. Ordinarily the prosecution of these crimes would be processed
according to the procedural laws of the Code. The 1922 and 1962 documents provided special norms with an added emphasis on confidentiality because of the very serious nature of the crimes involved. These special procedural norms were an expansion, with added detail, upon the procedural law of the Code. The existence of this document also clearly proves that the highest Catholic Church authorities were aware of the especially grave nature of the clergy sexual crimes considered. This of course makes it difficult for any Church leader to credibly claim that the problem of clergy sexual abuse was an unknown quantity prior to 1984.
19. Though some have claimed that Crimen Sollicitationis applies only to solicitation in the confessional, and not to other sexual crimes perpetrated by clerics, the opposite is true. The very words of the document itself clearly establish that those acts included under the classification of “the worst crime,” (de crimine pessimo) are to be processed according to the norms set forth for the crime of solicitation. This issue was taken up by Msgr. Brian Ferme, J.C.D., in his article entitled “Graviora delicta: the apostolic letter M.P. Sacramentorum sanctitatis tutela.” which appeared in the book Il processo penale canonico (Rome: Lateran University Press, 2003):
While the instruction dealt specifically with solicitation and the procedural norms to be applied in judging this crime, the fifth chapter stated that the same norms were also to be observed for the Acrimen pessimum (art. 71), which was understood to include paedolphilia (art. 73). In other words at the promulgation of the CIC83 [Code of Canon Law, 1983] the “graviora delicta reserved to the CDF seemed to be those concerned with solicitation, the violation of the seal of confession and the ‘criminum pessimum’ as understood by the 1962 Norms, though the actual praxis of the Congregation may have included others.”
20. Furthermore, in a deposition of Msgr. Ferme taken in a civil case in California in 2005, he repeated this opinion when asked by the attorney taking the deposition about the relationship of pedophilia to the 1962 document:
Q. And according to your article, the 1962 instruction was understood to include the crime of pedophilia, correct?
A. Correct, as was the Code of Canon Law of 1917.
Q. And that would be pedophilic acts committed either in connection with the confession or not, correct?
In 2005 Msgr. Ferme also submitted an affidavit in the same civil case in which he said:
A careful and correct reading of Titulus V of the 1962 instruction establishes that what had heretofore been established for the crime of solicitation in the 1962 Instruction, namely the precise procedural rules, was to be applied to the “>crimine pessimo”, and obviously taking into account the different configuration of the crime given that it was not as such solicitation (n. 72).
21. The Instruction of 1962 specifically states that those involved in processing cases under these norms are bound by the Secret of the Holy Office, the highest form of confidentiality employed by the Holy See. Violation of the secret resulted in automatic excommunication, the lifting of which was especially reserved to the Holy Father. This represents the highest degree of Vatican secrecy which is imposed for the most serious processes and situations. The Instruction imposes the same oath of secrecy on the accuser and on witnesses but states that the penalty of automatic excommunication is not imposed. However this or other penalties may be imposed on the accuser or witnesses should the church authority handling the case deem it necessary.
22. 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 almost paranoid insistence on secrecy throughout the 1922 and 1962 documents 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.
23. According to the 1922 and 1962 documents, accusers and witnesses are bound by the secrecy obligation during and after the process but certainly not prior to the initiation of the process. There is no basis to assume that the Holy See officially envisioned this process to be a substitute for any secular legal process, criminal or civil. It is also incorrect to assume, as some have unfortunately done, that these two Vatican documents are proof of a conspiracy to hide sexually abusive priests or to prevent the disclosure of sexual crimes committed by clerics to secular authorities. The documents were written in a style and within an ecclesiastical context common for that pre-Vatican II era. Both are legal-canonical documents written in highly technical language. The English translation of Crimen Sollicitationis, though basically accurate, is also strained and awkward which can lend itself to misunderstanding.
24. To fully understand the overriding concern for secrecy one must also understand the traditional canonical concept known as the “Privilege of the Forum” “privilegium fori” which has its roots in medieval Canon Law. Basically this is a traditional privilege claimed by the institutional church whereby clerics accused of crimes were tried before ecclesiastical courts and not brought before civil or secular courts. Although this privilege is anachronistic in contemporary society, the attitude or mentality which holds clerics accountable only to the institutional church authorities is still active. This does not mean that the official Church believes that clerics accused of crimes should not to be held accountable. It means that during certain periods in history the Church has believed that it alone should have the right to subject accused clerics to a judicial process. The “privilegium fori” was included in the 1917 Code of Canon Law:
1. Clerics in all cases, whether contentious or criminal, shall be brought before an ecclesiastical judge, unless it has been legitimately provided otherwise in certain places.
2. Cardinals, Legates of the Apostolic See. Bishops, even titular ones, Abbots, Prelates Nullius, Supreme Superiors of Religious Institutes of Pontifical Right, and major officials of the Roman Curia may not be summoned before lay judges for matters pertaining to their duties without referring first to the Holy See; the same is true for others enjoying the privilege of the forum, where the Ordinary of the place [diocesan bishop] where the matter is to be tried is to be approached. The Ordinary, however, especially when a lay person is the petitioner, will not deny this permission except for just and grave reasons, all the more so when he is unable to bring about a resolution of the controversy between the parties. (Canon 119)
25. The canon that mentioned the privilege of the forum was not repeated in the revised Code of 1983. However the attitude that supported the “privilegium fori”, that clerics should not be subjected to the civil law, still exists. Expressions of it have been heard especially in regard to recent cases of sexual abuse by clergy. Several Vatican officials including Julian Cardinal Herranz, Tarcisio Cardinal Bertone and Fr. Gianfranco Ghirlando, S.J., have issued public statements to the effect that bishops should not be obliged to cooperate with secular legal authorities in cases involving sexual abuse by clerics. The opinions of Cardinal Herranz, at the time President of the Pontifical Council for the Interpretation of Legislative texts, were recorded in an article published in the National Catholic Reporter:
While recognizing the competence of civil authorities, Herranz expressed strong reservations about the application to the Catholic Church of two hallmarks of American civil law — an obligation to report misconduct and monetary damages for institutional negligence. “Given the emotional wave of public clamor,” Herranz said, “some envision an obligation on the part of ecclesiastical authority to denounce to civil judges all the cases that come to their attention, as well an obligation to communicate to judges all the documentation from ecclesiastical archives.” Herranz rejected the idea. “The rapport of trust and the secrecy of the office inherent to the relationship between the bishop and his priest collaborators, and between priests and the faithful, must be respected,” he said. (John Allen, May 17, 2002, National Catholic Reporter)
26. In a February 2002 interview with the Italian journal 30 Giorni, Cardinal Bertone, who was secretary of the Congregation for the Doctrine of the Faith at the time and later became papal secretary of State said:
“In my opinion, the demand that a bishop be obligated to contact the police in order to denounce a priest who has admitted the offense of pedophilia is unfounded,” Bertone said. “Naturally civil society has the obligation to defend its citizens. But it must also respect the `professional secrecy’ of priests, as it respects the professional. secrecy of other categories, a respect that cannot be reduced simply to the inviolable seal of the confessional. (John Allen, May 30, 2002, National Catholic Reporter)
Fr. Gianfranco Ghirlanda, S.J., is dean of the faculty of Canon Law at the Gregorian University in Rome. In an interview in 2002 he spoke about a number of aspects related to clergy sex abuse including the involvement of the secular courts:
Jesuit Fr. Gianfranco Ghirlanda, dean of the Canon Law faculty at Rome’s Gregorian University and a judge for the Apostolic Signatura, considered the Vatican’s supreme court, addressed the issue in the May 18  issue of La Civilta Cattolica. The journal is considered quasi-official since it is reviewed by the Vatican’s Secretariat of State prior to publication.
“Certainly it does not seem pastoral behavior when a bishop or religious superior who has received a complaint informs the legal authorities of the fact in order to avoid being implicated in a civil process that the victim could undertake,” Ghirlanda wrote. (Ibid., John Allen)
27. Why have Church authorities not advised that reports of sexual abuse of minors by clergy be referred to either child welfare agencies or law enforcement authorities? Why have some authorities publicly opposed turning clerics suspected of serious crimes over to secular law enforcement authorities? There is historical evidence that in the past clerics suspected of sexual abuse of minors were first tried in ecclesiastical courts and then turned over to secular authorities for additional prosecution and possible punishment. (cf. R. Sheer, “A Canon, a Choirboy and Homosexuality in Late Sixteenth Century Italy: a Case Study,” Journal of Homosexuality 21(1991): 1-22). There is no official reason for the failure to do so in recent times. Possibly the church authorities were trying to avoid the harsh publicity that results from exposure of clergy sexual abuse. Another possible reason is grounded in the attitude that supported the “privilegium fori” or Privilege of the Forum, namely, that the Church had the right to try clerics before its own courts. In any event there is no legitimate reason for neglecting to notify civil law enforcement authorities especially in light of recent experience which has shown Church authorities to be consistently negligent in its handling of such cases.
28. Although the objective reasons for the extreme secrecy may be understandable within the context of the time it was written, the obsession with secrecy through the years has been instrumental in preventing both justice and compassionate care for victims. It has enabled the widespread spirit of denial among clergy, hierarchy and laity. Secrecy has been justified to avoid scandal when in fact it has enabled even more scandal.
29. The press reports quote several church sources which state that the 1962 document is obscure and probably had remained unknown to the vast majority of bishops and church bureaucrats until it was cited in the new norms issued in 2001. Though the document may have been unknown to many in Church authority positions in recent years, there is documentary evidence that both the 1922 and 1962 documents have been used in the prosecution of cases of clergy sexual misconduct and specifically sexual abuse of minors, in the past.
30. The 1922 and 1962 documents reflect a highly confidential and even secretive attitude with regard to internal church matters which was common for the time they were written, but is no longer acceptable as the preferred way of dealing with such heinous crimes. These crimes have a profound negative impact on the lives of the victims, yet this impact can become lost in the concern for confidentiality. The obsession with secrecy causes denial to flourish. Certainly the institutional church and its clergy and hierarchy would have been deeply embarrassed in 1922 or in 1962 were the public to have learned of clergy sexual crimes. This embarrassment should have been endured because it is nothing compared to the spiritual, emotional and physical devastation of the victims.
31. Nevertheless we cannot accurately interpret and criticize the 1962 document solely by our contemporary standards based on the institutional church’s handling of clergy sex abuse cases over the past few years. It is dangerous to isolate the 1962 document and then strain to make it more than what is was intended to be for in so doing the meaning of the document and the actual intention of the framers can become distorted.
32. The institutional Catholic Church has been criticized for having a culture of secrecy, especially with regard to clergy sexual misconduct. Such secrecy in these matters has not been the constant practice of Church leadership since its own documentation from the past demonstrates that official attempts to curb violations of mandatory clerical celibacy were regularly published to all. For example, the Apostolic Constitution Sacramentum Poenitentiae, issued by Pope Benedict XIV in 1741, was included in the 1917 Code of Canon Law.
33. It appears that the obligation of secrecy for such cases was imposed by Pope Pius IX in 1866. The official document that imposes the secrecy was published on February 20, 1866 by the Sacred Congregation of the Holy Office in the form of an AInstruction@. This instruction provided clarification on certain aspects of the previous papal constitution dealing with solicitation in the confessional, Sacramentum Poenitentiae (1741) of Pope Benedict XIV. The actual text is as follows:
Par. 14. In handling these cases, either by Apostolic commission or the appropriate ruling of the Bishops, the greatest care and vigilance must be exercised so that these procedures, inasmuch as they pertain to [matters of] faith, are to be completed in absolute secrecy, and after they have been settled and given over to sentencing, are to be completely suppressed by perpetual silence. All the ecclesiastic ministers of the curia [court], and whoever else is summoned to the proceedings, including counsels for the defense, must submit oaths of maintaining secrecy, and even the Bishops themselves and any of the local Ordinaries are obligated to keep the secret. (in Codicis Iuris Canonici Fontes, Rome, 1926, vol. IV, n. 990, p. 267.
34. The 1962 document and its predecessor from 1922 are not proof of an explicit world-wide conspiracy to cover up clergy sex crimes. It seems more accurate to assess both statements as indications of an official policy of secrecy rather than a conspiracy of cover up. The reasons for the insistence on such confidentiality were no doubt grounded in the desire to protect the sacraments of penance and holy orders, to safeguard the inviolability of the confessional seal and to prevent false accusations of solicitation. There was also the desire to prevent scandal and damage to the reputation of the clergy. Nevertheless such secrecy has not been well accepted or understood in the present day in light of the official Church’s response to reports of clergy sex abuse. The policy of extreme confidentiality, whether it has ever been officially published as such or not, has been deeply rooted in the ecclesial culture for centuries. The documents under consideration are products of that culture. They did not create the obsession with secrecy but are a result of it.
35. On the other hand, there are too many authenticated reports of victims having been seriously intimidated into silence by church authorities to assert that such intimidation is the exception and not the norm. It is quite possible that most of the bishops who have served during the past thirty years were not aware of the existence of the 1962 document until it was publicly acknowledged by the Vatican in 2001. The cover-up happened whether or not bishops were aware of the 1962 document. This cover-up was grounded in a culture of secrecy, clericalism and institutional self-preservation. The 1922 and 1962 documents did not create this culture. They arose out of it and gave canonical legal force to the pattern of secrecy. If the 1922 and 1962 documents have been used as a justification for any cover-up or intimidation then we possibly have what some of the more critical commentators have alleged, namely, the distinct appearance of a blueprint for a cover-up.
36. There is also an over-riding omission in the 1922 and 1962 documents and their descendant, the 2001 declaration. All three documents concentrate on prosecuting the alleged offenders and protecting the institutional church from the fallout of public knowledge of the crimes. None of these documents approaches the far more important and challenging task of pastoral care and spiritual healing for the victims of these crimes. There is no evidence that the official Church has ever issued any norms, guidelines or instructions on the pastoral care of those harmed by clergy sexual abuse.
37. Summary of the Documents. In light of the controversy that these documents have prompted, it is essential that they be properly understood before they are used as evidence of either criticism or affirmation of the policies and practices of the Catholic Church.
a) The 1922 and 1962 documents were not limited to cases of solicitation for sex in the confessional. The procedures and norms also applied to the cases of sexual abuse by clerics mentioned in Title V of Crimen Sollicitationis. There are documents available that confirm that these norms were used in canonical judicial procedures in cases of clergy sexual abuse of minors.
b) Although the 1922 and 1962 documents were issued in secrecy and never publicly announced, they nevertheless were communicated to every bishop in the world. It is not correct to state or assume that these documents were sent only to selective bishops or, because of the imposed secrecy, not applicable to the universal Church. Furthermore it is not accurate to assume that since there are very few documented cases of the practical application of the procedural norms from either the 1922 or 1962 documents that they were not sent to and received by the bishops throughout the world.
c) The absolute secrecy was imposed on all members of the Church tribunals or diocesan administration who were involved in processing cases. The witnesses and principal parties were also obliged to secrecy but with less severe punishments than those applied to clerics.
d) The obligation of secrecy only went into effect once a case had been initiated. Nothing prohibited a bishop or religious superior from notifying civil authorities of an allegation prior to the initiation of the canonical process.
e) It is not correct to state that the popes under whose authority any of these documents (1922, 1962, and 2001) were published were either creating a blueprint for a cover-up or mandating a church-wide cover-up of clergy sexual abuse. They were however, continuing to enforce a Church policy of secrecy in the canonical handling cases of clergy sex abuse. It is also incorrect to use these documents to accuse any of the personnel charged with administering the Church courts, such as the Prefects of the Vatican Congregations, with participation in a cover-up in the conventional sense.
f) The canonical obligation of the penitent, or victim of solicitation, to denounce the priest who solicited in the confessional (canon 904 and 2368, 2) does not apply to those involved in same-sex relations with clerics, to minors sexually abused by clerics or to those knowledgeable of a cleric who committed bestiality.
38. It is not difficult to see why so many have seen in the 1962 Vatican Instruction Crimen Sollicitationis a “smoking gun.” Over the past 18 years but especially since January 2002 we have witnessed wave after wave of deception, stone-walling, outright lying, intimidation of victims and complex schemes to manipulate the truth and obstruct justice. Evidence of this behavior on of the part of the hierarchy is found in a variety of sources but especially in the results of hundreds of cases brought before the secular courts, the reports of grand juries in several areas of the United States and the reports of special secular investigative commissions from Canada and Ireland. We have watched as the culture of secrecy ended up causing much of what its proponents hoped it would prevent. The Vatican documents issued in 1922 and 1962 did not cause the clandestine mode of dealing with clergy sex abuse. Rather, these two instructions should be a strong reminder that there is a much more important value than protecting the institutional church and its office-holders and that value is the creation and nurture of an attitude and aura of openness and honesty wherein true justice and compassion can flourish as the most visible of Catholic virtues. The absence of a fundamental commitment to compassionate pastoral care of victims and survivors by the papacy and the hierarchy has led to the Church’s greatest failing in its response to the gravest challenge it has faced in centuries.
39. The reasons for the seemingly perennial problems of clergy sexual abuse and its cover-up will not be found in Church documents alone. One must delve deeper than the documents into the very nature of the ecclesial culture. The documents may be indicators of the official Church’s awareness of sexual abuse of minors and other vulnerable persons by the clergy, but these documents surely are not the cause of clergy sexual abuse nor are they the foundation of the official Church’s response to such abuse. This foundation may influence both official church documents and laws or their interpretation and application. Nevertheless one must look deeper into the nature of the institutional Church as expressed by the hierarchy.
40. There are several articles and commentaries available which are helpful in understanding the nature and application of the 1922 and 1962 Instructions. These include:
Juan Ortega Uhink, S.J. De Delicto Sollicitationis. Washington, D.C. The Catholic University of America. 1954.
John E. Downs. The Concept of Clerical Immunity. Washington, D.C. The Catholic University of America. 1941.
James McGrath. The Privilege of the Canon. Washington, D.C. The Catholic University of America. 1946.
John P. Beal, “The 62 Instruction Crimen Sollicitationis: Caught Red-Handed or Handed a Red-Herring.” Studia Canonica. 41(2007): 199-136.
Brian Ferme, “Graviora Delicta: the apostolic letter M.P., Sacramentorum sanctitatis tutela,” in Il Processo Penale Canonico, edited by Z. Suchecki, Rome. Lateran University. 2002.
Aurelius Yanguas, S.J. “De crimine pessimo et competentia S. Officia relate ad illud,” Revista Espanola de Derecho Canonico. 1(1946): 427-439.
Petrus Palazzini, “Stuprum sollicitatio ad turpio,” in Dictionarium Morale et Canonicum, Rome. Officium Libri Cattolici. 1961.
Charles Scicluna, “The procedure and praxis of the Congregation for the Doctrine of the Faith regarding Graviora delicta.” In Proceedings of the Annual Canon Law Conference of the Canon Law Society of Australia and New Zealand, Canberra. 2006.