Canon Law and Child Sexual Abuse through the Ages

By Tapsell, Kieran | Journal of the Australian Catholic Historical Society, Annual 2015 | Go to article overview

Canon Law and Child Sexual Abuse through the Ages


Tapsell, Kieran, Journal of the Australian Catholic Historical Society


In 2014 two senior members of the Marist and Christian Brothers in Australia told Justice McLellan, the Chair of the Child Sexual Abuse Royal Commission that in the 1980s the brothers would not have regarded touching a student's genitals as a crime but only a "moral failure". (2) McLellan asked Br Shanahan.

Q. Can you explain how the Orders would have brought themselves intellectually to that position, describing it only as a moral failure and not a criminal offence? How would they have arrived at that position?

A. No, I can't explain it. (3)

This paper is an attempt to explain it: how bishops, priests and religious all over the world came to regard the sexual abuse of children, not as crimes punishable by the State, but as moral failures that should be dealt with by treatment, and by dismissal from the priesthood or religious life only as a last resort. (4) The explanation lies in a gradual but radical change of culture within the Catholic Church that took place in the latter part of the 19th century that can be traced through changes in canon law.

The Concepts of "Canon Law" and "Child Sexual Abuse"

The title of this paper, Canon Law on Sexual Abuse through the Ages, is in some senses anachronistic. Despite claims that it is the oldest continuing legal system in the Western world, canon law, in the sense of a volume of laws that applied to the whole Church, only became a reality around 1140 CE when an Italian monk, Gratian compiled and tried to harmonize canon law up until that time. (5)

The term "child sexual abuse" is also partly anachronistic. Until about 1700CE, there was no concept of "childhood" in Western thought. Children were "small adults", and were regarded as "chattels" of their parents. Around 1700 childhood came to be seen as a separate state from adulthood, characterised by innocence and naivety. (6) Despite that, there were very ancient laws against the sexual abuse of some children. In Ancient Rome, the Lex Iulia de vi publica of Caesar Augustus in 18 BC imposed capital punishment on those who ravished a "boy or a woman or anyone through force", and those who successfully seduced "free" children. (7) This protection was not extended to slaves, and was motivated more by the impact of sexual relations upon social order rather than controlling sexual behaviour towards children generally. (8) The age of minority, like the ages for marriage and death, were lower than they are today.

The term "child sexual abuse" is defined more broadly these days in terms of the involvement of immature children in sexual activity with adults. (9) Nevertheless, for the purposes of this discussion it is convenient to apply the term to past practice while bearing in mind that it did not always carry the wider significance that it has today.

Law and Culture

There is a very strong connection between law and culture. (10) Law is a reflection of the dominant culture at the time. Once passed, those laws will reinforce, perpetuate and deepen the culture that gave rise to them in the first place. (11) Law shapes culture as much as culture shapes law. It is a two way interactive process, with both influencing each other. (12) Laws can "stay on the books", and no longer be enforced because the culture has changed. Nevertheless, if there is a succession of laws that provide for substantially the same thing--in this case, severe punishments for the sexual abuse of children--it is legitimate to conclude that this was continuing Church policy, reflecting the dominant culture of its lawmakers, the popes and Church Councils. (13)

The history of canon law demonstrates that the attitudes expressed by the Australian religious brothers started gaining traction in the Church only in the last 150 years, and became the dominant culture with the promulgation of the first Code of Canon Law in 1917. Prior to that time, the dominant Church culture was that the sexual abuse of children required at least some form of imprisonment, and often worse. …

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