The following article is made available thanks to Fr Gerard Garrett JV, Cork Regional Marriage Tribunal, Cork, Ireland. Source: from the Canon Law Corner of Intercom, February 2006.

Question –

I’ve heard a lot in the media recently about a conflict between canon law and civil law. Is there a conflict? Particularly, is there an obligation in civil law to report abuse and does this in any way conflict with the canon law?

The canon law is the law of the Universal Church and its 1.3 billion members. It derives its authority not from recognition by any secular authority, but from the teaching authority of the Church and ultimately from the Gospel. While it is true that the secular/civil law takes priority in the secular courts, the Irish Courts treat of the canon law of the Catholic Church as foreign law (O Callaghan v O Sullivan [1925] 1 IR 60) in much the same way as it treats of French or German Law.

While reporting policies have been adopted by civil and ecclesiastical authorities, there is no statutory, mandatory obligation on the citizen to report. In addition, a body of jurisprudence has built up in civil courts over the years. Of note in this connection is the decision of Duffy Gavan J. (Cook v. Carroll, [1945] IR 515 (High Court)) which established the privilege of parishioners in relation to communications with the parish priest and later decisions which established other similar privileges with regard to the communications of people with priests other than parish priests. (ER v .JR, [1981] ILRM 125 (High Court)) The most recent decision of this kind established the confidentiality of the acts or proceedings of the preliminary investigation as envisaged in Can.1717 of the Code of Canon Law. (MM v. CM, [1993] Unreported (High Court))

Both civil and ecclesiastical law hold to the principle that one is presumed innocent until guilt is proven. For this reason both jurisdictions put great store by due process. Both jurisdictions afford people basic rights. Among those afforded to 'Christ's faithful' (Can 204 1) are: The right to good reputation and privacy. (Can 220) The right to due process and to be judged according to law applied with equity. (Can 221)

The Church claims the right 'to constrain with penal sanctions Christ’s faithful who commit offences' (Can 1311) and to that end the canon law incorporates a section on penal law and the process involved therein. Among other things, the penal section of canon law stipulates that the preliminary investigation prior to a criminal trial must not call into question anyone’s good name (Can 1717 2) and that the acts of such an investigation are to be kept confidential unless they are necessary for the penal process.(Can 1719) Making a report to the civil authority about what turns out to be a frivolous, unfounded or false and malicious complaint, prior to the completion of the preliminary canonical investigation that established that fact, serves no end but the unwarranted and unlawful destruction of somebody’s good name.

In this connection also it is worth noting that there had been much mistaken talk of an obligation to report derived from common law misdemeanour of misprision of felony. The obligation to report was confined to serious crimes only or felonies (which the one we are discussing certainly is) but did not relate to a failure to report on the part of a legal advisor or doctor or clergyman or where the failure to report was to avoid attracting a prosecution against oneself. However, with the introduction of the Criminal Law Act of 1997 (s. 3. (1): All distinctions between felony and misdemeanour are hereby abolished.) the offense of misprision of felony has disappeared altogether. The act created the new offense of concealing an offense but it only applies to those who accept a consideration (bribe) for agreeing to conceal the offense. (Criminal Law Act, 1997 s. 8)

Finally, lest there be any confusion, and contrary to oft peddled misinformation, there is no conflict between Canon Law and the Civil Law in this country and there is nothing in Canon Law which inhibits or prohibits the citizen's right to exercise those rights which he or she enjoys under the constitution of Ireland. In fact, Canon Law urges the observance of Civil Law except when it is clear that it 'is contrary to divine law' (Canon 22) as has happened for example in totalitarian societies, such as Nazi Germany or Communist Russia. This principle is reminiscent of St Thomas More's famous statement: 'I die the King's good servant but God's first.'