By Brian Hennessy – which refers to the three previous articles which detail the Comboni Missionaries Code of Coduct for Accusations of Clerical Abuse.
Questions About the Comboni Missionaries Inquiry Procedure for Alleged Clerical Sexual Abuse
Had the Code of Conduct inquiry procedure related only to minor internal matters of, and misdemeanours within, the Institution, I would have few concerns about it.
However, the Code of Conduct is not just all about minor internal Institutional issues and so, yes, I do have some concerns:
• Concern is expressed within the Code of Conduct to keep all Inquiries “in house” if at all possible. However, as soon as an internal Inquiry determines that there is some evidence to suggest that a “crime” has been committed by any person within or without the Institution – and the victim has made a complaint or brought it to the attention of an individual of the Institution
– then there should be an “automatic” requirement of the Institution to inform local law agencies – and welfare agencies when they have knowledge that there is an allegation that a minor has been abused.
• In the above regard, I acknowledge that the Code does state that where a Civil Process is in progress, co-operation with that Civil Process should be given and no inquiry within the Institution should cause an interference with the Civil Process. However, the point being made here is that there should always be a primary Civil Process in the case of sexual abuse.
• Members of the Order, despite their good will, should not be used in any capacity to lead the “primary” Inquiry into a “crime” as they are not “generally speaking” legally competent to deal with the investigation of crimes. I can understand that if a nation state exists in which, for example, child abuse is not a crime on the statute book, then the issues should be dealt with in the most appropriate manner possible by the Institution. However, is there such a nation state today?
• There is a mention in the Code of Conduct regarding the appointment of a “carer” for minors. This is appropriate, but there is no mention of the necessity of having suitable persons trained to engage in such situations – and the use of an untrained person as a mediator is a doubtful scenario.
• There is no mention in the Code of Conduct of reporting allegations to a Child Protection Officer. I can understand that in some locations in which the Comboni Missionary Order operates there may not be one at hand. However, I make the assumption that most Dioceses now do have trained CPOs or are in the process of establishing them. One of the “best practice” roles of a CPO is to alert law and welfare authorities. The secondary “best practice” role of a CPO is to provide a confidential facility to check the credentials (in respect to child abuse) of individuals with whom a child may come into some form of formal contact (teacher, priest etc).
• The Code of Conduct limits the lodging of a complaint by an individual and acceptance of a complaint by the Institution to a period that ceases beyond the age of 28 of the alleged victim. This means that alleged victims older than that age have no recourse to justice.
It may be expedient, but given that the Code of Conduct acknowledges that the serious effects of sexual abuse can be life long, serious and profound – and that there is a well established understanding that the abuse can cause a mental suppression of the facts for long periods of time – then it is inequitable and discriminatory that historic cases may not be brought beyond the period of this limitation.
This limit would be unacceptable in civil jurisdictions of most advanced Nation States today – and it should not be acceptable to an Institution committed to the principles of Faith, Hope and Charity – Justice, Peace and Integrity!
• The Code of Conduct states that records, apart from a summary, of Inquiry Procedures should be destroyed ten years after the date on which they were first raised or immediately on the death of the guilty member of the Institution. This is grossly inadequate and the Institution should review this matter urgently.
The Nolan Report recommends the “best practice” retention of the records for 100 years from the date of birth of the guilty member in order that:
o Child Protection Officer checks can be made routinely on living convicted sex abusers, and
o Historic cases can be dealt with adequately.
• It was not absolutely clear to me in the Code of Conduct whether or not copies of all documentation concerned with crimes of abuse by clerics of the Institution were retained at the Roman Curia level of the Order in perpetuity and whether Provincial Superiors had recourse to or were routinely provided with any information regarding the clerics moved to their province. Such notification to a Provincial Superior should be a matter of routine.
• The Code of Conduct outlines on a number of occasions that abuse has lasting effects, as stated above. The Code discusses at great length what subsequent care may be given to members of the Institution who are found to be guilty of abuse, but limits all effective remedies to the Victim to a “one off” compensation agreement.
There is no discussion of any further care, dialogue or welfare input beyond this point. That is not “best practice” and is unacceptable.
• The Code of Conduct outlines that serious cases involving crimes of sexual abuse are to be referred to the Congregation of Faith and that this Vatican Institution will decide the punishment which the Institution will implement.
However, a prison term does not figure in the Congregation’s list of punishments for serious crimes of sexual abuse of minors. Instead, the Code outlines in detail how a one-off-payment or a stipend for the guilty person is to be determined – and also outlined in the Code is the process for the incardination to a diocesan parish – which is probably the very last place that a convicted sex abuser should be disposed.
This is one very profound reason why the issues surrounding crimes of abuse should not be administered primarily by clerics, but by the civil authorities.
• On that last point and by way of example, in the United Kingdom, a doctor was recently consigned to prison for 22 years for having committed sexual molestations of boys in his surgery on a number of occasions.
His crimes were substantially less serious and significantly less numerous than the many crimes committed by a Comboni Priest who was the Stillington and Mirfield Infirmarian for a goodly number of years! The latter’s crimes were concealed by the Comboni Institution.
He was not defrocked by the Vatican, but he was rewarded with incardination in a parish in his home province of Como and, no doubt, he received a stipend or at least a one-off payment too!
• The Code of Conduct implies that the relationship between a cleric and the Institution is not one that bears a similarity to the normal employer / employee relationship and that, therefore, the Institution accepts no liability for the crimes of a cleric within their Institution.
This notion may be acceptable in some civil law jurisdictions, but it does not apply universally. Within the United Kingdom that theory has been put to the test by diocesan bishops in the High Court of Justice and the Courts of Appeal on a number of occasions and has failed on every occasion.
The Institution should be aware that that is an argument that cannot be used in the United Kingdom – and possibly elsewhere also.
• In conclusion, the section of the Code of Conduct relating to abuse, or as the Comboni Missionaries prefer to call it – “The Brotherly Care of Persons in Certain Situations” – is at best a well intentioned and reasonable document for the primary investigation and the administration of minor breaches of regulation of the Institution. However:
o The Code takes scant account of “best practice” (as detailed for example in the Nolan Report and other notable documents discussing the issue) when dealing with allegations of child sexual abuse – which are crimes.
o Alarmingly, in its most important elements, it has to be said that the Code, despite its numerous recourses to Canon Law, is not fit for the purpose of a primary, judicial inquiry and the administration of issues related to a “crime”.
o The Inquiry and Canonical process should only be a secondary adjunct to a civil process – never the “in-house” preferred replacement to a civil process.
o In respect to the sentencing of clerics who are guilty of serious crimes – the provisions of the Code and the censures allowed to the Congregation of Faith bear no comparison whatsoever to the justifiable, civil penalties that could be imposed in a civil court following a civil judicial process.
The punishment must fit the crime – otherwise there is no credibility whatsoever in the process that has led to sentencing. It becomes a sham.
o This last mentioned failure is undoubtedly one of the more significant reasons for the unacceptability of the Code’s inquiry processes in their present format.
o Regrettably, “Part II – Sexual Abuse” of the Code is not a realistic, practical, working document for the age in which we live, nor for the seriousness of the criminal issues which it seeks to address and nor for the universality of the International Conventions which shine as beacons to illuminate the Rights of the Child.