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Monday, December 28, 2009

“CRIMEN SOLLICITATIONIS,”

THE 1922 INSTRUCTION AND THE 1962 INSTRUCTION

CRIMEN SOLLICITATIONIS,”
PROMULGATED BY THE VATICAN
Thomas Doyle, O.P., J.C.D.
October 3, 2008
1. The document known as
Crimen sollicitationis
was issued by the Congregation of the
Holy Office on March 16, 1962. It was presented by the Prefect, Alfredo Cardinal Ottaviani, to
Pope John XXIII for his approval. This is the normal manner of receiving Papal approval for
documents of this nature. 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.
2.
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 aurthority by which tyey
became Church law was Pope john Paul II.
3. Clergy sexual abuse issues are handled by the Congr egation for the Doctrine of the Faith,
a major department of the Vatican administration. This has been the case since the 18
century
th
although the name of the present congregation has been changed twice during this period. It was
first known as the Supreme Sacred Congregation of the Roman and Universal Inquisition (1542-
1908. At the beginning of the 20
century Pope Pius X changed the name to the Supreme Sacr ed
th

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
Sacred” was dropped
revised Code of Canon Law in 1983, the word “
. Cardinal Ratzinger,
presently Pope Benedict XIV, had been the pr efect, 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.
4. 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 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
.
5. 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 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.

6. 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.”
7.
Crimen sollicitationis
is essentially a set of procedural norms for processing cases of
accusations against priests for soliciting sex while in the act of sacramental confession.
Solicitation is an especially heinous canonical crime and one which results in severe penalties for
those found guilty. This document on solicitation was preceded by one issued on June 9, 1922
by the Supreme Sacred Congregation of the Holy Office. It was signed by the prefect, Cardinal
Merry del Val, and was approved by Pope Pius XI. Like the 1962 document, it was issued in
strict secrecy and its content was never published in the official publication of the Holy See, the
Acta Apostolicae Sedis.
8. 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. Also, the 1922 document was sent only to diocesan bishops. The 1962
document was intended for use in cases involving diocesan priests as well as priests who were
members of religious communities.
9.
Crimen sollicitationis
is known as an “Instruction,” and 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 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.
10. 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 62.
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)
12. 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?
A. Yes.
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?
Q. Yes.
A. Probably in the early sixties. Probably.
Q. Was that then Archbishop Manning?
A. Yes.
(P. 159. 160)
13. This document 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.
14. Title V of the document,
“De crimine pessimo,”
includes the crimes of sexual contact
with same sex partners, 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

” and presumably because of their serious nature, they were included under
The worst crimes
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.
15. These types 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 procedur al norms were an expansion, with added detail, upon the
procedural law of the Code. The existence of this document also clearly pr oves 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.
16. 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 “crimen 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.
17. 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 62 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?
A. 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).
18. The Instruction 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.
19. 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 document 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.
20. According to the document, 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-
conciliar age. 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.

21. To fully understand the concern for secrecy one must also understand the traditional
” which has its roots
canonical concept known as the “privilege of the forum” or “
privilegium fori
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 today s 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)
22. The canon that mentioned the privilege of the forum was not repeated in the revised Code
of 1983. 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. Cardinal Her ranz, at the time President of the Pontifical Council for the
Interpretation of Legislative texts, said:
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)
In February 202 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)

23. Why have Church authorities not advised that reports of sexual abuse of minors by cler gy
be referred to either child welfar e agencies or law enforcement authorities? Why have they some
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
A canon, a choirboy and
homosexuality in late sixteenth centur y 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.
24. 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. The secrecy has been justified to
avoid scandal when in fact it has enabled even more scandal.
25. The press reports quote several church sources which state that this 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 documentar y 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.
26. 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 it was written, but is no
longer acceptable as the preferred way of dealing with such heinous crimes. These crimes have a
profound 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 hierar chy 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.
27. Nevertheless we cannot accurately interpret and criticize this 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 document and 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.
28. 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.
29. 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 “
Instruction
.
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.
30. 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 a product of that culture. They did not create the obsession with secrecy but
are a result of it.
31. 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. It was and remains 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 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.
32. 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 approach the far more challenging and important 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.
33. 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 ver y 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
world s bishops.
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 not with the automatic
penalty of excommunication.
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 char ged with administering the Church
courts, such as the Prefects of the Vatican Congregations, with participation in a
cover-up in the conventional sense.
34. It is difficult to see why so many have seen in the 1962 Vatican Instruction a "smoking
gun." Over the past 18 years but especially since Januar y 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. If anything we have watched as the culture of secrecy
ended up causing much of what its proponents hoped it would prevent. The Vatican document
did not cause the clandestine mode of dealing with clergy sex abuse. Rather, it 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.
35. 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 cler gy, but
these documents surely are not the cause of clergy sexual abuse nor ar e they the foundation of
the official Church s response to such abuse.

_________________________________________

THE 1922 INSTRUCTION AND THE 1962 INSTRUCTION


“CRIMEN SOLLICITATIONIS,”

PROMULGATED BY THE VATICAN

Thomas Doyle, O.P., J.C.D.

October 3, 2008

1. The document known as

Crimen sollicitationis

was issued by the Congregation of the

Holy Office on March 16, 1962. It was presented by the Prefect, Alfredo Cardinal Ottaviani, to

Pope John XXIII for his approval. This is the normal manner of receiving Papal approval for

documents of this nature. 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.

2.

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 aurthority by which tyey

became Church law was Pope john Paul II.

3. Clergy sexual abuse issues are handled by the Congr egation for the Doctrine of the Faith,

a major department of the Vatican administration. This has been the case since the 18

century

th

although the name of the present congregation has been changed twice during this period. It was

first known as the Supreme Sacred Congregation of the Roman and Universal Inquisition (1542-

1908. At the beginning of the 20

century Pope Pius X changed the name to the Supreme Sacr ed

th


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

Sacred” was dropped

revised Code of Canon Law in 1983, the word “

. Cardinal Ratzinger,

presently Pope Benedict XIV, had been the pr efect, 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.

4. 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 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

.

5. 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 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.


6. 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.”

7.

Crimen sollicitationis

is essentially a set of procedural norms for processing cases of

accusations against priests for soliciting sex while in the act of sacramental confession.

Solicitation is an especially heinous canonical crime and one which results in severe penalties for

those found guilty. This document on solicitation was preceded by one issued on June 9, 1922

by the Supreme Sacred Congregation of the Holy Office. It was signed by the prefect, Cardinal

Merry del Val, and was approved by Pope Pius XI. Like the 1962 document, it was issued in

strict secrecy and its content was never published in the official publication of the Holy See, the

Acta Apostolicae Sedis.

8. 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. Also, the 1922 document was sent only to diocesan bishops. The 1962

document was intended for use in cases involving diocesan priests as well as priests who were

members of religious communities.

9.

Crimen sollicitationis

is known as an “Instruction,” and 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 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.

10. 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 62.

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)

12. 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?

A. Yes.

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?

Q. Yes.

A. Probably in the early sixties. Probably.

Q. Was that then Archbishop Manning?

A. Yes.

(P. 159. 160)

13. This document 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.

14. Title V of the document,

“De crimine pessimo,”

includes the crimes of sexual contact

with same sex partners, 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

” and presumably because of their serious nature, they were included under

The worst crimes

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.

15. These types 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 procedur al norms were an expansion, with added detail, upon the

procedural law of the Code. The existence of this document also clearly pr oves 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.

16. 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 “crimen 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.

17. 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 62 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?

A. 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).

18. The Instruction 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.

19. 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 document 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.

20. According to the document, 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-

conciliar age. 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.


21. To fully understand the concern for secrecy one must also understand the traditional

” which has its roots

canonical concept known as the “privilege of the forum” or “

privilegium fori

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 today s 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)

22. The canon that mentioned the privilege of the forum was not repeated in the revised Code

of 1983. 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. Cardinal Her ranz, at the time President of the Pontifical Council for the

Interpretation of Legislative texts, said:

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)

In February 202 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)


23. Why have Church authorities not advised that reports of sexual abuse of minors by cler gy

be referred to either child welfar e agencies or law enforcement authorities? Why have they some

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

A canon, a choirboy and

homosexuality in late sixteenth centur y 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.

24. 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. The secrecy has been justified to

avoid scandal when in fact it has enabled even more scandal.

25. The press reports quote several church sources which state that this 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 documentar y 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.

26. 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 it was written, but is no

longer acceptable as the preferred way of dealing with such heinous crimes. These crimes have a

profound 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 hierar chy 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.

27. Nevertheless we cannot accurately interpret and criticize this 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 document and 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.

28. 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.

29. 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 “

Instruction

.

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.

30. 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 a product of that culture. They did not create the obsession with secrecy but

are a result of it.

31. 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. It was and remains 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 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.

32. 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 approach the far more challenging and important 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.

33. 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 ver y 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

world s bishops.

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 not with the automatic

penalty of excommunication.

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 char ged with administering the Church

courts, such as the Prefects of the Vatican Congregations, with participation in a

cover-up in the conventional sense.

34. It is difficult to see why so many have seen in the 1962 Vatican Instruction a "smoking

gun." Over the past 18 years but especially since Januar y 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. If anything we have watched as the culture of secrecy

ended up causing much of what its proponents hoped it would prevent. The Vatican document

did not cause the clandestine mode of dealing with clergy sex abuse. Rather, it 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.

35. 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 cler gy, but

these documents surely are not the cause of clergy sexual abuse nor ar e they the foundation of

the official Church s response to such abuse.

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