An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The Catholic Church has rightly been criticised for its handling of the widespread sexual abuse of children by priests across the world. In order to protect the “good name” of the church, many abusers were never reported to the police but were sent for “treatment” and counselling before being “redeployed” by the church to other positions. Some of them then went on to abuse other children. Unfortunately Cardinal Wilfred Napier, who has dealt with such cases in South Africa, seems to be unaware that if he fails to report those priests to the police he is committing a criminal offence and exposing himself to a 5 year prison sentence.
In a controversial interview with a BBC radio journalist, Cardinal Napier indicated that when he dealt with cases in which priests have sexually abused children, he followed a protocol developed by the Church itself. He insisted that each case was referred to the Doctrine of the Faith office and the Pope. Cardinal Napier seems to believe that the Church is the victim of unfair publicity. In the interview he complained:
I really would resent it if someone said to me you mishandled that case. Some of the priests went, according to the wisdom of the time, the best information that we had from psychologists, they went for treatment, came back and have been under – what we call it – personal surveillance and have functioned quite normally ever since. Others left the priesthood, they were laicised, but it depended on each case being handled differently because of the peoples conditions were different.
Nowhere in the interview does he say that he actually reported any priests who have confessed that he sexually abused children to the police. Instead, displaying an admirable understanding and compassion for abusers (an understanding and compassion not displayed towards others involved in consensual and often loving sexual behaviour), he argued that such priests act out of a defect in their own character and that they are not necessarily culpable for what they did.
In the interview Cardinal Napier explicitly states that he is not qualified himself to say whether such priests should be held criminally liable or not. They might be held criminally liable. They might not be criminally liable. But that is for others to decide and is not a concern of the Cardinal. He would rather not think about whether the criminal justice system should deal with such priests or not.
His certainty about sexual matters – including about the alleged “evils” of contraception, abortion and homosexuality – suddenly gives way for an admirable doubt. If only Cardinal Napier could conjure up the same doubt when pontificating about consensual adult sexual behaviour and about the right of women to make decisions about their own bodies and about reproduction – but priests can’t fall pregnant, so this is probably too much to ask.
When pushed by the BBC interviewer about whether there was a duty to report the sexual abuse of children by priests to the police, the Cardinal (rather shockingly) makes the following claim:
That depends on what country you were in. For instances in our country, in South Africa, there was no way I as bishop could have accused somebody and reported the case and made a case with the police. It would have to be the victim themselves who would have to make the case against the person and only then could the justice system kick in. I don’t see how you could say that if the victim then said we don’t want this thing to go to the police, how can you then say the Church is mishandling the thing by respecting the victim’s own request. I think we’ve got to be fair and not generalise.
This statement is patently false. In terms of section 42 of the Criminal Procedure Act any private person is legally entitled without a warrant to arrest any person “whom he reasonably suspects of having committed” a Schedule 1 offence. Schedule 1 offences include any sexual offence against a child. This means the Cardinal had the legal right to arrest any of the offending priests at the moment that he was told by that priest or anybody else about the abuse. To my knowledge no priest was ever arrested and handed over to the police in this manner. Why not? What kind of perverse moral worldview drives a Bishop or Cardinal to deal with allegations of sexual abuse against children without involving the police?
One of the big problems with child sexual abuse is that adults purporting to act in the interest of children (but often acting in their own interest) often put pressure on the child not to report sexual abuse. A child is by its very nature vulnerable and cannot always make an informed decision about such matters. On the other hand, a Bishop or a Cardinal (as well as the child’s parents who might very well be in awe of the Bishop or the Cardinal) serve in a position of great authority vis-à-vis the child. The Cardinal or the Bishop may also have an undue influence on the parents of an abused child as they might very well hold the revered Church leader in awe. In these circumstances a Bishop or a Cardinal who is required to deal with allegations of sexual abuse of a child by a Priest has an enormous responsibility to do so in the best interest of society and not in the interest of the Church.
The problem is that a Bishop or Cardinal dealing with such cases will invariably be conflicted. On the one hand, he will have a duty to protect the Church and the priests. On the one hand he will have a moral and legal duty to protect the child (and other children who might in future fall prey to an abusing priest). For any moral person, this should not be much of a conflict at all as the best way to protect children is to report the abuser to the police and to ensure that he is successfully prosecuted and sent to prison for the abuse. Where this is not done (often based on the claim that the disempowered and traumatised child did not want to press charges), the Bishop or Cardinal manages to protect the Church to the detriment of the abused child and to all other children who in future may potential fall victim to the abusing priest.
This is exactly why section 54 of the new Sexual Offenses Act (adopted in 2007) now requires anyone “who has knowledge that a sexual offence has been committed against a child” to “report such knowledge immediately to a police official”. A person who fails to report such knowledge, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.
The Act cannot have any retrospective effect. But from the moment the Act came into force, the Cardinal had an obligation to report his knowledge of all cases of child sexual abuse by priests to the police – even those cases that occurred before the Act came into effect. If he had failed to do so, he would be guilty of a crime and could be arrested and prosecuted for failing to adhere to the law. It is unclear whether Cardinal Napier has indeed reported his knowledge of all cases of child sexual; abuse by priests to the police. Judging from his false statement above, he may very well not have done so. If this is true, it would mean that he has committed one or more criminal offenses and could be prosecuted.
In Smit v Van Niekerk the Appellate Division (as it then was) found that members of the clergy do not enjoy a special privilege not to divulge information given to them in the line of their duties. For technical reasons the Constitutional Court (in S v Bierman) declined to revisit this rule when it came before it. This means that in our law somebody like Cardinal Napier does not enjoy any special privilege regarding any confession made to him (either during the confessional or outside it as part of his administrative duties) and he cannot legally refuse to report serious allegations of child sexual abuse by any priest to the police on the basis that the allegations were made to a priest and are therefore privileged.
If the police was serious about the protection of children against child sexual abuse and about the prosecution of offenders, it would of course raid the Cardinal’s offices and take him in for questioning in an attempt to uncover all cases of child sexual abuse by priests in South Africa and then to prosecute those cases where a winnable case could be built. But this would not be necessary if Cardinal Napier fulfilled his legal duty and on his return to South Africa immediately reports his knowledge of all child sexual abuse cases by priests to the police.BACK TO TOP