As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Cardinal Napier is not a stranger to controversy. In a recent interview with the Mail & Guardian he displayed a remarkable lack of either logic or compassion, stating that he could not be accused of homophobia “because I don’t know any homosexuals” – an implausible claim, given the fact that I personally know of two South African Catholic priests who are practicing homosexuals (the one in a loving long term relationship with another man, the other a slightly sad cruiser for sex on the internet).
Arguing that there must be something “radically wrong with a society that can go against revelation and reason”, Cardinal Napier stated in this interview that “with same-sex marriages we are carrying out someone else’s agenda. It’s a new kind of slavery, with America saying you won’t get aid unless you distribute condoms, legalise homosexuality”.
Perhaps the Cardinal should consider the possibility that it’s the Catholic Church – not gay men and lesbians – that is in the wrong for displaying such disdain, even hatred, towards consenting adults who experience emotional and sexual attraction for members of their own sex. When a Cardinal expresses disgust and revulsion for legal rules that prohibit unfair discrimination against fellow South Africans, it might well be the Cardinal who is suffering from a lack of reason and who remains blind to revelation – let alone compassion and plain common human decency.
Cardinal Napier’s troublingly backward and, quite frankly, shockingly ignorant views are also reflected in his statements about how the Church deals with allegations of child sexual abuse by priests. By complaining that even if the Catholic Church imprisoned all child abuse priest, when they’re released “they’ll do it again unless they’re treated”, he seems inadvertently to suggest that he thinks the Church – and not the state – has the final authority over priests. We live in a democratic state, so the Catholic Church is not permitted to imprison anyone – the Crusades are thankfully a thing of the past – and only the secular state is permitted to incarcerate priests.
This suspicion might be strengthened by the following remarkable statement by Cardinal Napier quoted in the Mail & Guardian:
If a case comes up, I write a decree authorising a committee [that includes psychologists and lawyers] to investigate it. [If they find the complaint has merit] we advise people to go to the police, or we ourselves go to police. If the police want to, they take it up but, if the complainant doesn’t lay a charge, the police cannot act. It is then that the church will report the case to the Vatican. Thus the decision of what to do with the offender has been taken away from the bishop.
This statement suggests that Cardinal Napier and the Church hierarchy might be flouting the law and may have committed criminal offences by not reporting credible allegations of child sexual abuse by priests to the police. As I wrote before, section 54 of the Criminal Law (Sexual Offenses and Related Matters) Act 32 of 2007 states that in a person who has knowledge that “a sexual offence has been committed against a child must report such knowledge immediately to a police official”. A person who fails to report knowledge of child abuse to police is liable on conviction to a fine or to imprisonment for a period not exceeding five years.
The Catholic Church does not have a discretion on whether to report child sexual abuse by priest to the police – as Cardinal Napier claims. A failure to report could land the Cardinal or other Church leaders in jail for five years.
In terms of the regulations promulgated in pursuance of the Act, when a person reports knowledge of child sexual abuse in fulfilment of the legal obligation set out in section 54, the police officer “receiving the report may under no circumstances turn such a person away”. The police officer must consider the information provided and if he or she:
is satisfied that there are reasonable grounds to believe that such an offence was indeed committed, take an affidavit from the person setting out the information provided by that person, open a docket for the investigation of the offence that was allegedly committed and register the docket on the CAS system.
The case must then be investigated by the relevant police officer. Contrary to what Cardinal Napier claims, there is no legal requirement that a “complainant” (Cardinal Napier cannot get himself as far as calling the child who was abused a victim) must lay a charge before an investigation takes place. On the contrary, if the Cardinal obeys the law and reports the alleged sexual abuse of a child by a priest to the police, a statement will be taken and a docket will automatically be opened.
It is a lie to say that the police can only investigate child sexual abuse if the victim lays a charge. The police have a legal duty to investigate the matter. Whether the victim lays a charge or not is completely irrelevant. To hold otherwise would be to expose the victim to the possible pressure by powerful people (like a Cardinal for example) to stop the investigation and to cover up the abuse to protect the name of the Church.
According to the regulations, once the police had been informed of the alleged child abuse the investigating officer must, as soon as possible, “ensure the safety of the child”. This includes, determining whether the child is in need of care and protection and, if so, taking appropriate steps to ensure the safety and protection of the child. The investigating officer also has a duty to obtain information from the victim about the alleged abuse and must take a statement from the victim and do so in private. The investigating officer has no choice in the matter.
The case may not be dropped and the investigation may not be discontinued because the victim has indicated that he or she does not want to “lay a charge” (a legally nonsensical term). In fact, according to the regulations only an officer with the rank of Captain or a higher rank, who is a Station Commissioner or is in charge of the detectives at a station, may ever close a sexual abuse docket (which would automatically have been opened if the Cardinal had obeyed the law) and then only in very limited circumstances.
The statement by Cardinal Napier that either they advise people to go to the police or they go themselves, suggest that they do not always report credible allegations of child sexual abuse to the police, sometimes leaving it up to the victim. This is a criminal offense. The statement that “if the complainant does not lay a charge the police cannot act”, is patently false. The police have a legal duty to investigate the matter – regardless of whether a “charge” had been brought by the victim. In fact, it is the report to the police by the Cardinal or other Church leader that is supposed to trigger a full investigation. The fact that the Cardinal does not know this, suggest that he has been ignoring the law and has not been reporting priests who abuse children to the police as he is legally required to do.
The answers to some of the following questions might reveal to what extent the Cardinal himself adheres to either reason or revelation. How many child sexual abuse cases involving priests has he dealt with? Who are the priests involved and how many children did they abuse? Has the Cardinal reported all the cases to the police for further investigation – as he is legally required to do – and what are the case numbers registered when the docket was opened in response to him obeying the law? Has he or another Church leader ever directly or indirectly tried to influence a victim to not co-operate with the police investigation in order to cover up the abuse and protect the Church? Are there cases in which the Cardinal did not report the allegations to the police? If so, will he report this to the police and sign an admission of guilt statement?
The continued failure of the Cardinal to answer these and similar questions tell its own story about how his Church deals with abusing priests.BACK TO TOP