Canon Law was a concept affecting Ireland by influence rather than application -- and the influence was huge
When the Murphy report was published, Justice Minister Dermot Ahern made his pithy but pointless remark that "a collar will protect no criminal". He also asked us to reflect on how the culture of deference to the Church came about. He did this, knowing that neither statements would be tested. He also knew that no one in power would reflect meaningfully on the culture of deference.
Within 48 hours, it became clear the State would play a limited role in the disciplining of the Church, through further investigation of the protection given to abusing priests, since the legal framework for this was inadequate.
Nor would there be an explanation of just how the protective clerical collar, which immunised most priests and the auxiliary bishops from the laws of this State since its foundation, would do so no longer. Instead, the entire process of disciplining the Church has been left to the determined Vatican fire fighter, Archbishop of Dublin Diarmuid Martin.
As to any reflection on how the culture of deference to the Church came about, this too would not take place. And Mr Ahern knew it to be the case since this vital area of reflective national shame was not part of the Murphy report and would not be confronted.
The report by Judge Yvonne Murphy and her legal colleagues, Ita Mangan and Hugh O'Neill, failed to address the question of how the State and its people, notably its children, were subjected to legal structures that were either inappropriate (Canon Law) or demonstrably inadequate (Statute and Common Law).
The chapter on Canon Law gives a dismal picture indicating senior churchmen fumbling over how Canon Law worked in controlling abusive priests. Successive archbishops seemed ignorant of the 1922 ultra-secret Crimen Sollicitationis in controlling sexual abuse of minors. This all reads like the 16th-century operation of the Inquisition. As a legal measure for stopping the diocesan abuse cases, it is laughable. This Canon Law document operated within the State, without legal remit; the report's examination of this is not satisfactorily addressed.
It is easy to overstate the intrusion of Canon Law into Irish law. Canon Law was a concept affecting Ireland by influence rather than application. The influence was huge, allowing bishops and canon lawyers to impose and reinforce the culture of secrecy and silence, and to resist state intrusion.
It had little to do with case law, so few canon lawyers had court experience. Yet the Roman Catholic Church made sure not to follow the Church of England, where ecclesiastical law always recognised state law and acted as its agency.
On the contrary, it would consistently betray the State and its children, and the investigation of that, by the Murphy report, is in my judgment, inadequate. A crucial dimension, represented by political voices or analysis of the attitudes of the Executive and the politicians who made our laws, is entirely absent. This commission ranged outside the State, using inquiries in places such as Boston, though not examining Merrion Street closely enough.
Another grave area of omission is in the report's chapter on Irish civil law, both common and statute. Better examination of the shortcomings in legislation and the revision of laws is required. For example, why did the State omit sexual offences from the Offences Against the State (Amendment) Act of 1998, following the Omagh bomb?
We knew the clerical sex abuse problem was looming, historically and contemporaneously. We also knew that alternative legal remedies were flawed in respect of concealment of offences and the pernicious moving of priests from place to place.
Is it not a nonsense that this act, in a far-reaching provision extending beyond the general scope of the legislation, makes it an offence not to disclose to a guard information believed to be of material assistance in preventing or securing the conviction of any other person for serious offences; and then to exclude any offence of a sexual nature?
This was madness, but what was almost worse was the failure of the Murphy report to deal fully with these anomalies and absurdities in our legal system. In 1996, the Supreme Court stated that the offence of misprision of a felony still existed, making it a legal duty on citizens to disclose to the proper authorities all material facts as to the commission of a felony of which they had knowledge. Why was this not used? Why did Judge Murphy not investigate more fully the issues involved?
Most seriously of all, why did the State, in the Criminal Law Act, 1997, abolish the distinction between felony and misdemeanour, thus making it far more difficult to sustain misprision, an effective weapon if properly re-defined?
Also, why did the State, in the same act, explicitly repeal the offence of compounding a felony? In its place was a daft provision, as far as clerical sexual abuse of minors was concerned, making it an offence 'to accept any consideration other than making good any loss or injury suffered for not revealing information that might be of assistance in securing the conviction of a person who has committed an arrestable offence' (Section 8 of the act. An arrestable offence is one for which the maximum prescribed term of imprisonment is five years or more).
In conclusion, it is worth considering the following. This is a State where:
So why do we not have a parallel provision for concealment of child sexual abuse?
Maybe Judge Murphy will address some of these points before Murphy 'Part Two' appears.