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.

By Brian Hennessy, as regards the Comboni Missionaries Clerical Abuse process. It is the 3rd of 3 articles on the Comboni Missionaries Code of Conduct.

Administrative Procedures Required in the Consideration of Alleged Abuse

1. The Code states that at the investigation stage, there must always be clarity about the the presumption of innocence, and no promises should be made regarding financial compensation to those making allegations.

2. The Code states that the person in charge of the inquiry, in agreement with and in the presence of members of the family, is to hear the testimony of the alleged victim, so as to become acquainted with the real facts, and to verify, with the appropriate respect, the psychological and spiritual situation of the person alleged to have been wounded by the confrere’s behaviour.

3. The Code states that as regards the inquiry, the general guidelines (for inquiries) are to be followed bearing in
mind that, in the case of alleged abuse against a minor, it is especially advisable to seek the services of a team or, in any case, of appropriately qualified persons. Equally, any meeting with the alleged victim should take place in the presence of witnesses.

4. The Code states that the choice of the method to be followed in conducting the inquiry will take account of the plausibility, entity and gravity of the allegations as well as of the availability of persons who can be relied upon to carry out this task.

Whatever the case, the inquiry is to be conducted in a circumspect and efficient manner, respectful of all those involved, and of the cultural context, as well as of the legislation in force in the country in question and/or issued by the respective Episcopal Conference.

5. The Code states that the following statement may be determined by an act of the provincial superior.: “that to preclude scandals, to protect the freedom of witnesses and to safeguard the course of justice” measures may be taken in accordance with CIC 1722 to the effect that “the ordinary, at any stage of the process, can remove the accused from the sacred ministry or from any ecclesiastical office or function, can impose or prohibit residence in a given place or territory, or even prohibit public participation in the Most Holy Eucharist”.

6. The Code states that after the process has been completed the provincial superior is to:

• Provides for the sentence to be carried out and in particular communicates the result of the process and the decisions reached regarding:

(a) the manner of providing aid and moral support to the victim;

(b) the imposition of the penalties on the guilty party;

(c) measures for the full rehabilitation of an accused person found to be innocent and for the necessary retraction and reparation by the accuser;

• Communicates the results of the inquiry to the Christian (and civil) communities affected by the event (while avoiding possible scandal) and puts in place suitable measures to heal the wounds inflicted on them.

7. The Code states that for the good of all concerned, everything possible will always be done to resolve the matter in a pastoral manner limited to the internal inquiry and its conclusions (CIC 1718 §4).

When however the conclusions of the preliminary inquiry are not sufficient to resolve the matter to the satisfaction of all the concerned parties, or to ensure the reparation of the scandal caused and the amendment of the person found guilty (CIC 1341), it is required to proceed to the canonical penal process.

This decision is to be taken by an act of the provincial superior.

8. The Code states that The relevant provision will define one of the following:

• The decision to proceed by a decree without a trial (CIC 1720), bearing in mind the directives of CIC 1342.

• The decision to initiate a judicial penal process (CIC 1721 and following).

9. The Code states that in the case of a decree without a trial, the provincial superior will proceed as directed by CIC 1720. The person who has been responsible for the inquiry cannot act as an assessor in the case.

10. The Code states that when the provincial superior decides that a judicial penal process is necessary, he will communicate this decision to the person responsible for the inquiry so that he may take on the office of promoter of justice. The provincial superior has full powers to appoint another person to this office.

11. The Code states that the provincial directory, bearing in mind the Code of Canon Law, may determine the procedure de qua agitur. In certain cases (for example the abuse of minors), however, the legislation of some countries includes the duty to report the matter to the civil authorities, foreseeing that this could lead to a trial before a civil court.

12. The Code states that when an abuse is at one and the same time under investigation by other bodies and persons concerned to establish the truth of the facts, the Institute is committed to cooperating in the required and appropriate manner with the various parties involved (diocese, judicial and civil authorities), so that justice may be done, following the dispositions of the law in force (civil and canonical), especially those regarding the duty of bringing the case to the attention of the competent authorities.

Regarding this latter point, both excessive zeal and the temptation to conceal facts and reports are to be avoided.

13. The Code states that the provincial superior communicates to the general council his decision to initiate an administrative or penal process sending a written document which sets out the legal and factual elements of the situation under inquiry, the name of the accused confrere, and a brief report. Every penalty imposed is also to be communicated to the general council.

14. The Code states that the provincial superior and those in charge of the case will keep written and secret documentation pertaining to the different stages of the process, as well as of its conclusions and the measures adopted as a consequence.

The provincial council lays down who may have access to such documentation and until when.

15. The Code states that once the internal inquiry has reached its conclusion, the person in charge of the investigation will present the provincial superior with a full report regarding both the matters of fact and of law involved. The provincial superior will then reach a decision regarding the case (CIC 1718) that can take one of the following two forms:

• Consigning the notitia criminis to the archives;

• Initiating a penal process.

16. The Code states that proof of admonishment and rebuke must always be retained, at least by a document conserved in the secret archive of the provincial superior (CIC 1339).

17. The Code states that at the end of his mandate, the provincial superior presents his successor with adequate information about confreres in special difficulty.

He then sends all the relevant documentation to the general archives in Rome so that it may be conserved by the competent authority.

18. The Code states that,in respect to documentation, directives CIC 489 § 2 are to be followed by the Provincial Superior and higher formations: “Every year documents of criminal cases are to be destroyed in matters of morals in which the criminal has died or in which ten years have passed since the condemnatory sentence; but a brief summary of the case with the text of the definitive sentence is to be retained”.

19. The Code states that offences defined in the Motu Proprio Sacramentorumsanctitatis tutela as being reserved for referral to the Congregation for the Doctrine of the Faith .

20. The Code states that the following offences are listed amongst those to be referred to the Congregation for the Doctrine of the Faith:

• CIC 1378: the absolution of an accomplice in a sin against the sixth commandment of the Decalogue;

• CIC 1387: soliciting a penitent to sin against the sixth commandment of the Decalogue in the act or on the occasion or under the pretext of confession;

• DG: any offense against the sixth commandment, committed by a cleric with a minor of less than 18 years of age.

21. The Code states that regarding the above offenses, the provincial superior, after having carried out the preliminary inquiry, transmits to the Congregation for the Doctrine of the Faith, by his own act and through the superior general, a full report drawn up by the person responsible for the investigation

22. The Code states that the Congregation for the Doctrine of the Faith can decide to deal with the matter directly, or it can order the provincial superior to make provisions for the penal process according to the dispositions that the Congregation itself will consider opportune to give. Any appeal against the sentence lies within the competence of the Congregation for the Doctrine of the Faith itself.

23. The Code advises that the Institute expects and requires its members to live consistently with the values and purposes that they have freely chosen by means of a public commitment. As a consequence, when faced with proven cases of sexual abuse against minors, the Institute, taking account of the sentence passed by the Congregation of the Doctrine of the Faith, may adopt one or more (and hence also cumulatively) of the following provisions:

• to invite the religious to undergo a medical and psychological examination;

• to encourage him to accept the necessary help so as not to prejudice the welfare of other minors;

• to place him in a situation in which he has no direct contact with minors, even when he continues to deny his guilt;

• to prevent him in the future from working or having direct contact with minors, even when he has been helped by specialists.

24. The Code advises that in order to be able to entrust the religious in question with a ministry suitable to his situation, the superiors concerned must be informed of any precedents in the area of sexual abuse when the religious is assigned to their province and/or community. In his turn, the provincial superior must inform the bishop of the diocese in which the religious will exercise his pastoral ministry, if the religious has precedents in matters of sexual abuse against minors proven by one of the procedures described at no. 50 above.

25. The Code advises that regarding cases of sexual abuse, especially against minors, various episcopal conferences have developed their own praxis governed by detailed norms that in some countries are particularly severe and restrictive. In communion with the local Church, the Institute is committed to observing such norms and procedures.

They are thus to be included in the provincial directories.

26. The Code advises that civil law regarding cases of abuse varies greatly from country to country, but is becoming ever stricter and more severe, especially regarding sexual abuses committed against minors by persons of trust or in authority. The Institute is committed to informing its members regarding the civil and penal dispositions in force in the country where they work and requires them to obey these local laws.