The reader will find a survey on major convictions that have recently appeared in the news, involving clerics in the French territory.
As reliable statistics are lacking, it is generally assumed that this type of crime has not been as widespread in France as in other countries.
M. Henri Tincq, a journalist close to the Catholic Church, has posted an excellent piece on Slate.fr
In an article dated March 19, 2010, titled Why France is not affected by the scandals, he gave a few good reasons, as well as some bad ones, for this particularity.
We can agree with the following assertions:
- Secularism in Education and the State and the position of public education have limited the number of closed places (boarding schools, youth camps) available to predators; (the review La Raison has published a series of well-argued articles that show that the public exposure of sex crime committed by clerics against children in the U.S. is part of a battle of wills between the U.S. and the Vatican; in this field, France has different characteristics);
- The lack of hiers of the clergy limits the possibilities of supervision of youth movements because priests are usually replaced by lay persons (often women).
On the other hand, we think it is rather risky to assert that a more liberal conception of sexuality in France compared to Anglo Saxon morality would be safer? But the most questionable argument is that the Church in France would have adopted the necessary measures of transparency in time: recent cases prove that this is mainly a smokescreen.
In fact, we can put forward a few explanatory factors:
- The ability of the French political and media lobby to hide the truth is undeniable; while the Belgian RTBF was able to re-broadcast in 2010 the same statements on Bishop Di Falco concerning a case which was beyond the statutory limitation, no French media made an allusion to that case.
- In the case of The Beatitudes (see below), the adopted tactics to isolate the black sheep and prevent involvement of the religious community was successful, in collusion with the media.
The Catholic Church is a danger because it seeks to enforce its own law, whereas society must protect itself against it, through legal and institutional separation, and in this field the 1905 law is an excellent tool, provided it is strictly respected to its logical conclusion.
Canon Law and French Law
The cases of paedophilia in France are ruled according to special penal proceedings which define the different sorts of incrimination and sanctions for each offence. Rapes and sexual assaults belong to the category of crimes against persons.
The contemporary Criminal Law is a result of the French Revolution, which took up again the main ideas from the Treatise on Crimes and Punishments by Beccaria (1764) supported by the philosophers of the Enlightenment; its applies the principle of the legitimacy of offences and punishments in order to make two goals coincide: defence of society and defence of the individual.
This is what is expressed in Article 8 of the Declaration of the Rights of man and Citizen of the 26th of August, 1789:
Only strictly and obviously necessary punishments may be established by the law, and no one may be punished except by virtue of a law established and promulgated before the time of the offense, and legally applied.
In the case of sexual offence, the French Law has two types of crime:
- Sexual assault involving violation of the physical integrity without consent.
- Sexual assault against under-age people involving violation of the physical integrity even if there is apparently consent.
From the point of view of criminal investigation, the situation has evolved since the 1810 Criminal Law which recognized the inviolability of the Seal of the confessional.
Article 223-6 of the current Criminal Law provides:
Whoever is able to prevent by an immediate action, without taking any risk for himself or herself or another person, be it for a crime or an offence against a persons physical integrity, voluntarily abstains from doing so, shall be sentenced to a 5 five-year term of imprisonment and a fine amounting to 500,000 francs. The same sentence shall be applied to whoever voluntarily abstains from assisting a person in danger, without taking any risk for himself or herself, be it in assisting personally or be it in seeking for help.
There is no professional secrecy and there is no conscientious objection, either. The text appears to be formal, and it is applied to everyone, including confessors.
Article 378 of the Criminal Law of 1810, which protected the secrecy of the confessional, has become article 226.13 of the current Criminal Law.
Revealing information involving secrecy by someone who is bound either by professional secrecy or by his or her position, be it because of a position or a temporary mission, shall be sentenced to a term of one year of imprisonment and a 15,000 euro fine.
To which situations is secrecy applied?
The Pican case, named after the Bishop of Caen who was given a suspended prison sentence of three months for failing to denounce sexual assault and maltreatment against fifteen-year-old children, sets the terms of the debate. In that case, the aggressor, a priest who was given a prison sentence of 18 years, had only been summoned by his bishop and removed from his position, while no information was forwarded to the judiciary. The criminal court of Caen, although it admitted that professional secrecy could be applied to the bishop, ruled against it in that case and punished the offence of failing to denounce a crime.
Anyone, having knowledge of a crime as long as it is possible to prevent it or limit the effect, or the authors of which are likely to commit new crimes which could be avoided, who fails to inform the judiciary or the civil authorities shall be punished with a prison sentence of three years and a 45,000 euro fine.
With the exception of a crime against under-age children, these provisions are not applied to:
- Close relatives
- The spouse of the author or the accomplice of the crime
Also, the provisions of the first clause of that article are not applied to people who are bound by professional secrecy according to the provisions of Article 226-13.
Anyone, having knowledge of deprivation, maltreatment or sexual abuse against a child under the age of fifteen or against a person who is unable to protect himself or herself because of an illness, disability or mental or physical deficiency or in a state of pregnancy, who fails to inform the judiciary or the civil authorities shall be punished with a prison sentence of three years and a 45,000 euro fine.
According to positive law and case law, we need to separate two situations:
- Article L 226-13 is applied only to the case of the Seal of the Confessional (although it has often fallen into desuetude).
- In all the other cases, it is the duty of the religious hierarchy to assist the judiciary, and not only to reveal crime and offence but moreover insofar as it is possible to prevent the occurring of more crimes, particularly against under-age children.
Therefore, the secrecy of the confessional appears to remain the only protected and recognized secrecy. Its existence is traditionally challenged by the Appeal Court which recognizes that religious ministers are bound to keep secret the revelations that can be made insofar as the revelation is made in the exercise of their ministry. But the judgment on which that jurisprudent is based was delivered in 1891, so it took place before the Separation law of December 9, 1905.
Appeal Court and the procedure before ecclesiastical courts
On April 9, 2002, the Court of Appeal of Versailles delivered a judgment concerning the criminal investigation in the case of an alleged rape committed by a priest. The victim had chosen to lay the matter before an ecclesiastical court, the Officiality of the diocese of Lyon, and then afterwards before the criminal court. The case was handed over to an investigating magistrate of Nanterre who ordered the seizure of the computer files recorded by the ecclesiastical court as well as a series of documents. The Court of Appeal, referred to by the Archbishop of Lyon, rejected the proceedings because the investigating magistrate was able to use the confessions that were made in accordance with canon law. But on December 17, 2002, the Appeal Court overturned that decision because the obligation imposed on religious ministers to keep the secrecy of facts revealed in the exercise of their ministry is not contradictory with the investigating magistrates seizure of every document likely to be useful for the discovery of the truth.
A disappointed columnist, close to the Vatican, wrote:
In my view, the scope of the decision is at the level of the hierarchy of standards, namely the ignorance by the secular criminal law of the canonical penal law. This denial (and it is a denial, indeed) is not new. The Catholic tradition of France could have made that the Church had deserved high consideration, which appears unimportant to positive judges who are only conveying a mainstream thought which we can witness when the highest authorities in France refused to enshrine Christian legacy and memory in the European Charter of basic rights. As a consequence, the ruling by the Appeal Court is only the assertion that France is a democratic country insofar as it has to abide by the standards issued by the political order.
The Law of Separation between the Churches and the State of December 9, 1905 has reduced the Officialities of the dioceses and all ecclesiastical tribunals to the rank of private jurisdiction with no legal characteristics and the canonical law to the rank of contractual norms of private type which are not to be opposed to the investigating magistrates freedom of action.
It is of interest to underscore the analysis by the Appeal Court, which the commentators who were close to the French episcopate have tried to hide. The judges of the Court of Appeal had decided that the canonical procedure was part of the religious ministers professional secrecy and incited confidentiality and therefore, under these circumstances, using such documents by the secular criminal procedure would have reduced the defendants rights.
The judgment adopted by the Appeal Court brings the professional secrecy put forward by the defendant back to the right level.
The Circulaire of the Ministry of Justice Directorate for Criminal Matters and Pardons (2004)
And yet, on August 11, 2004, a Circulaire from the Ministry of Justice clarified the issues and decided that the hearing of confession by priests in the exercise of their ministry were put back to the previous situation; it is clearly stated:
Considering Article 226-14, above-mentioned, it appears that a member of the clergy, like any other person, who would reveal crimes of serious child abuse or sexual assault against a fifteen-year old child or a vulnerable person unable to defend himself or herself, would not risk any charge for breach of professional secrecy, because the Law allows this revelation.
On the other hand, the Circulaire goes on:
Article 434-1 of the criminal law punishes the failing to denounce a crime. Yet, it provides explicitly that this obligation shall not be applied to people bound to professional secrecy under the provisions of Article 226-13 of the criminal law. Therefore, for such a person bound to professional secrecy, failing to denounce a crime of which he or she was informed shall not be charged by the criminal court and the possibility to inform the judiciary authority of facts, provided for by Article 226-14 of the criminal law, can be analysed only as a mere possibility, involving the free will of the person bound to secrecy, and not his or her duty.
In our view, it is ill-considered generosity, knowing that the person bound to secrecy is, as for him/her, bound by other internal rules, namely the canonical law, on which his or her position and livelihood depends and which has to be compared with the abused childrens’ lives and mental and physical health.
However, the Circulaire reminds also that:
The law has explicitly provided that the fact that a person is bound to professional secrecy does not in principle exempt him or her, as long as he or she is regularly requested, to answer the summons of a police officer.
Indeed, Article 60-1 (of the code of criminal procedure) provides that the reason of professional secrecy cannot be put forward normally by the person summoned by a police officer as a justification for refusing to answer the summons.
In the same manner, the fact that documents are bound to professional secrecy does not justify per se a refusal to hand over those documents.
Therefore, in principle, a religious minister cannot argue that he or she is bound to professional secrecy on the one hand and, on the other hand, that the documents are bound to professional secrecy to refuse to answer the requested summons.
Lawmakers would be wise if they extended the solution reached by the Cassation Court concerning the handing down of documents necessary to investigation to the failing to denounce a crime for all the cases concerning crime and offence against under-age children.
More generally on the impact of canonical law
It is noteworthy that the Catholic Church has been trying to hide behind other socio-professional groups (lawyers, physicians, and educators, even journalists) to keep its private preserve of secrecy. However, a well-argued demonstration based on the Law of December 9, 1905 appears much more efficient: on the one hand, the above-mentioned professional groups would not be affected, and on the other hand it would prove clearly that the relations between the clerics and the faithful have neither more nor less legal scope that that provided by common law applied to contracts and cannot be opposed to the needs of criminal investigation.
The survey of a recent judgment will illustrate this idea. In November 2008 a member of the Community of the Beatitudes, Father Pierre-Etienne was charged for alleged sexual assault against children, involving 38 children between 1985 and 2000, while other cases occurred beyond the statutory limitation. His trial took place in November 2011. The man, aged 65at the time of the trial, was given a 5-year term of imprisonment. At first, several of his superiors were charged for failing to denounce a crime, but shortly afterward they were discharged because of the statutory limitation. Present in 28 countries, this religious community is a charismatic movement, encouraged by the Vatican, which gathers clerics and laymen, whether married or single, in common living places. Following the trial of Father Pierre-Etienne, the religious community, placed under the aegis of the archbishop of Toulouse, has issued a press release in which it states that the issue has been solved thanks to a few expulsions and to the action of ecclesiastical courts, based on canonical law. Incidentally, the community recognizes the sexual assaults committed by one of its founders, Father Ephraim. In this case, the enforcement of canon 1399, which allows the internal law of the Church to punish someone when there is no criminal investigation, seems to explain the bishop of Albis lack of will during the trial of Father Pierre-Etienne:
The principle of legitimacy of punishments (nulla pena sine lege) has been enshrined by all the declarations of the Rights of Man, but it would have been wrong for the Church to follow their Legalism (Beccaria, the founder of the principle, was wrong), Jean Werckmeister argued in a review of a work by Alain Sriaux, quoting the latter.
By contrast, this confirms that the canonical law cannot be taken into account, under no circumstances, in positive law because it is contradictory to both the law of the 9th of December, 1905 and the constitutional principle set up by the Declaration of the Right of Man and the Citizen of the 26th of August, 1789.
The consequence must be the nullification of any reference to professional secrecy in criminal investigation. Undoubtedly, a clear statement of the charge of failing to denounce a crime for every case of silence concerning any sex crime committed by clerics against children under the age of fifteen would be useful to assist in protecting the victims and prevent new crimes.
Finally, what is at stake is to respect the separation to its logical conclusion, in the interest of the judiciary and the collective and individual liberties.
One of the specialists in canonical law acknowledges:
In Italy, the Constitution itself has taken into account the nature of the Church, and consequently its law. Article 7 of the Constitution provides that the State and the Church, each in its own field, are both independent and sovereign. Thus it was safeguarding the Libertas Ecclesiae but also it recognized, at least implicitly, the doctrine of the Church - Societas Perfecta.
But this is absolutely not the situation in France. Quite the contrary, like in England or Ireland, reducing canonical law to concepts and categories of the state is a tendency of the bodies of the state. Thus, the normative competence of the Church finds its basis only in conceptual liberty.
But, consequently, none of the concepts drawn from this normative competence through the direct or indirect implementation of the canonical law can stand as an obstacle to criminal investigation, in the interests of the victims and society.
In France, drawing all the consequences would require a few precisions to be enshrined in the criminal law, but it would also require the repeal of the concordat status of Alsace-Moselle…