Canon law ignores the civil courts and psychiatrists on paedophilia, argues Patsy McGarry, Religious Affairs Correspondent
The perceived leniency with which Catholic Church authorities in Ireland as elsewhere deal with clergy accused of child sex abuse remains a source of anguished fascination, not least for the devout. It makes no sense that an institution which can be severe - brutal even - to dissenters is simultaneously so blind to the destruction of young lives by some of its priests. And to the gross betrayal of trust this "blindness" allows.
Bishop Eamonn Casey was exiled to the jungles of Ecuador and then (and still) refused permission to return to live in Ireland for the unforgiveable crime of having a son. Meanwhile, Father Frank McCarthy who, with Father Bill Carney, "shared" boys in each other's homes and on a camping trip to Kerry, is not merely forgiven but is brought into the embrace of Archbishop's House in Dublin where he works in the communications office. It might be argued that the latter is at once a fine act of charity as well as allowing for Father McCarthy to be kept away from temptation. But when juxtaposed with the treatment of Bishop Casey, it poses familiar questions about the church's attitude to paedophilia.
Canon 1395 in the Code of Canon Law (the law by which the church runs itself) illustrates the extraordinarily sympathetic sentiment which underlines that attitude on the part of the church. "Extraordinary" because what we are frequently talking about here is the rape of children. Apart from one reference to "the harm done to the victim", the overwhelming concern in Canon 1395 is with gentle treatment of the accused priest.
Paedophilia, we are told, "may seriously diminish imputability" and "proven paedophiles are often subject to urges and impulses which are in effect beyond their control". So, from the beginning, we are to understand that paedophiles are really victims - sad, helpless agents of the destruction of children. This "understanding" dictates all that follows in canon law, some of it outrageous.
For instance, Canon 1395 tells us that in dealing with a cleric who may have committed "a sexual offence, or a number of them, with a minor", and who has done so to such an extent he "may be liable to punishment by the criminal law of the State", "nevertheless, because of the influence of paedophilia, he may not be liable, by reason of at least diminished imputability, to any canonical penalty, or perhaps to only a mild penalty".
This is diminished reasoning. What it is saying is that a priest who is convicted by the State of child sex abuse may not be subject to any discipline by the church. This reduces to irrelevance the suffering of the child as well as the crime - as a crime - rendering it innocuous and no more than a helpless peccadillo of a "God help the poor fellow, sure it's not his fault" variety.
But it goes further. It refines its understanding of what a paedophile is to gossamer-thin, angels-on-the-head-of-a-pin insubstantiality. There are paedophiles and paedophiles. There's the serial paedophile and the fellow who may only have sexually abused a child "on one or a number of occasions" years previously. He's on a different plane entirely. Let's face it, having been a serial paedophile "10, 15, 20 years" before is different from being a serial paedophile now. Isn't it?
Canon law says it is. It also warns against the "sometimes excessive statements of some psychologists and psychiatrists, to the effect that once such an offence, of however long ago, has been established, the ecclesiastical authority has on its hands an incurable paedophile." Ultimately, it advises, the bishop knows best, "in his own prudent judgment". Looking into his own heart these days where this issue is concerned, said bishop will most likely encounter what the Minister for Justice, Mr McDowell, described in the Dáil on Wednesday as "something very rotten".
But canon law is not just prepared to ignore the findings of the civil courts and the opinion of psychologists and psychiatrists when it comes to suspected paedophiles. It goes one better. The (internal church) penal process against a priest suspected of child sex abuse should be initiated as a first response "only in exceptional circumstances". For two reasons; it then goes outside the bishop's control, and files prepared could later be seized by the civil authorities through "discovery". This is nothing less than direct advice as to how a possible criminal investigation by the State into allegations of child sex abuse against a priest might be obstructed by planned omission.
Canon law goes yet further. If it is likely that a priest will be dealt with by the State, "the competent ecclesiastical authority may refrain from seeking to punish" him at all. In other words, because the priest has been or may be convicted by the civil courts, he need suffer no discipline by the church.
Canon 1395 gives an insight into how the Catholic Church has come into such disrepute internationally where this ghastly issue is concerned. It also raises questions as to whether an institution which has such laws should ever be allowed responsibility for the care of children.