On December 29, a special judge of a court set up under the Protection of Children from Sexual Offences Act convicted Roman Catholic priest Lawrence Johnson for sexually assaulting a minor boy.

The case highlights how church authorities failed to follow both the Protection of Children from Sexual Offences Act and rules set by the state and church Canon Law for victim protection.

Human rights activists and women’s rights organisations within the Catholic community have criticised the manner in which the rights of victims are routinely negated and abusers are shielded or supported on the pretext of “maintaining neutrality” or that the matter is sub judice.

That was also evident when a sessions court in Kerala’s Kottayam on January 14 acquitted Bishop Franco Mulakkal of raping a nun several times between 2014 and 2016.

Lapses in church investigation

In 2015, after the boy in Mumbai had been sexually assaulted a second time by the priest, his parents’ first response was to take him to Cardinal Oswald Gracias, among the most senior Roman Catholic clergymen in India. According to them, the Cardinal did not pay due attention to the matter despite the boy’s bleeding injuries as he was leaving for Rome.

Gracias did not report the matter to the police as mandated under Section 19 of the Protection of Children from Sexual Offences Act, nor did he guide the parents to do so.

Anil Joseph from the local chapter of the Society of St Vincent de Paul, which serves the poor in the parish, who was accompanying the parents to see Gracias at Archbishop’s House in South Mumbai, asked the Cardinal to constitute a committee to enquire into the matter. Accordingly, Bishop John Rodigrigues was put in charge of the enquiry committee.

Three priests – Jervis D’Souza, KT Emanuel and Neil Santos – were designated as members. It is unclear whether these priests had any exposure to the issue of child sexual abuse and were aware of the protection a child needs to be given during the enquiry. Another lapse, under state law, is that there was no woman in this committee.

The enquiry was conducted the very next day, even while the child was still in trauma. The gruelling exercise went on for five hours. No immediate medical help was offered to the boy though it is required as per the government’s child protection law.

The parents were asked to sign a statement typed in English, which they did, but asked for a copy as they did not understand it. The committee refused to give it to them, saying it had to be sent to Rome.

As per state law, it is mandatory to provide a copy of the first information report to the complainant.

The parents, who were distressed by the callous way the complaint had been dealt with by the church authorities, decided to take the child to a doctor. “He took one look at my boy and said that something has happened to him,” the BBC reported his mother as saying. “This is a police case. Either you report it or I will.” As a consequence, the family went to the police that night.

A police medical examination on December 1, 2015, showed that the bleeding injury had been caused by forcible anal penetration. The priest was arrested and charged with unnatural sex under Section 377 of the Indian Penal Code and sections of POCSO Act. As bail was denied to him, the priest was incarcerated throughout the investigation and trial. Charges against him were framed two years later, in 2017.

When the police went to arrest the priest, he had fled from his residence at the church in Govandi in North East Mumbai and was tracked down at Archbishop’s House in Colaba. The parents allege he was being shielded at Archbishop’s House, but church authorities have denied this.

The spokesperson for the Archdiocese, Father Nigel Barrett, had told the media soon after the arrest that the case was being investigated by a three-member committee instituted by the Archdiocese of Bombay.

Since this was the first case of the sort to come to light after the Catholic Bishops Conference of India laid down protocols to investigate sexual abuse of children by the clergy, a thorough investigation would be carried out, he said. The Catholic Bishops Conference of India is the highest authority of the Roman Catholic Church in India.

The report of the committee would be submitted to the Cardinal, which in turn would be sent to the Vatican. If the allegations were found to be true, the priest could be suspended or defrocked. “For now, it seems disrobing Johnson and divesting him of priesthood could take years,” Barrett added. “The common practice is to await the court verdict before taking a decision. We do not want to be seen as influencing the legal process.”

At the same time, Barrett confirmed that the priest was receiving legal aid from the Conference of the Diocesan Priests of the archdiocese as part of his “right to defence”. According to supporters of the victim’s family, the church authorities hired the services of an expensive lawyer and paid him huge amounts to defend the accused priest.

Activists have questioned if the policy adopted by the church indicates neutrality or reveals a clear bias in favour of the accused. The parents could not afford a lawyer. Advocate Charmaine Bocarro, who came forward to help the family, did the case pro bono.

In 2019, the child’s father submitted an application to the court seeking action against Gracias and two other bishops. “The Cardinal neither took any action nor did he report the matter to the police,” the survivor’s father said. Under Section 21 of POCSO, failing to report an incident like this is a crime. It carries a sentence of one year in prison.

When the application was accepted by the court, the Cardinal was away in Rome attending the summit on the “protection of minors and vulnerable adults” convened by Pope Francis to address issues of clergy abuse. The deliberations on the second day were led by Gracias.

When a reporter from the BBC, Priyanka Pathak, later asked the Cardinal if he regretted not calling the police when the family had approached him, he told her, “You know I’m being honest, I’m not 100% sure… but I must reflect on that. I admit whether immediately, the police should have got involved, sure.”

He said he was under a duty to evaluate the credibility of the accusations by speaking to the accused priest. This, again, violates the provision of POCSO stipulating that the person reporting the crime should not talk to the accused before reporting the offence and that the accused should not be brought before the child.

The Church authorities have denied this and stated that the Cardinal immediately phoned the accused priest and removed him from office and barred him from saying mass the next morning. After reaching Rome the next morning, the Cardinal called the Bishop and he was informed that the family had already approached the police.

Cardinal Oswald Gracias at the Vatican in October 2018. Credit: Max Rossi/Reuters

Some Catholic laypeople claim that when allegations of this sort are brought to the attention of the church authorities, errant priests are simply transferred to other parishes. This leaves communities there vulnerable.

An open letter circulated by the Association of Concerned Christians states that if the Cardinal had taken strict action when earlier instances of sexual abuse by Johnson had been brought to his notice, the church would not have found itself in the midst of the present scandal.

After the priest was convicted in December, Gracias stated that he was greatly distressed. “I seek pardon from the community that a representative of the church appointed to be in charge of the community has done this,” he said in a statement issued to the press December 31.

According to activists, Gracias’s apology is insincere. His statement that he continues to pray for the victim and the abuser has further irked the community: they ask how he could place the rapist priest and his victim on the same scale.

The informal letter has asked for an appointment with the Cardinal to discuss compensation for the physical assault and emotional trauma suffered by the victim, as per the provisions of Canon Law. Huge amounts had been paid as compensation by the Catholic church in the United States and Europe to victims of clergy abuse.

Activists feel that the same standard should be followed in India. This could set a precedent for other cases, especially the high-profile case of the alleged sexual abuse of a nun by Bishop Mulakkal. Though Mulakkal has been acquitted by a lower court, an appeal is likely to follow.

Victim protection under Canon Law

The case also brings up the question of the victim protection policy under Canon Law. Pope Francis, since taking charge in 2013, has laid down strict provisions to address sexual abuse in the church.

In October, 2018, when a cover-up scandal engulfed Chile’s Catholic Church, an investigation identified more than 160 abusers. Apart from priests, Pope Francis defrocked, or dismissed from priesthood, two Chilean bishops for the sexual abuse of minors.

In February, 2019, a former US Roman Catholic archbishop and cardinal, Theodore McCarrick, was defrocked after he was found guilty of sexually abusing minors. Pope Francis described the action as “definitive”, meaning the cardinal will not be allowed to appeal.

This was done days before an unprecedented global summit of bishops to discuss child sexual abuse was held at the Vatican.

At the conclusion of the four-day deliberations, attended by over a 100 bishops from all over the world, Pope Francis said:

“Rarely, in fact, do victims speak out and seek help. Behind this reluctance there can be shame confusion, fear of reprisal, various forms of guilt, distrust of institutions, forms of cultural and social conditioning, but also lack of information about services and facilities that can help. Anguish tragically leads to bitterness, even suicide, or at times to seek revenge by doing the same thing. The one thing certain is that millions of children in the world are victims of exploitation and of sexual abuse.”

On March 26, 2019, a law titled On the Protection of Minors and Vulnerable Persons was enacted for Vatican City. It came into effect on June 1, 2019. It has safeguards similar to those provided under India’s Protection of Children from Sexual Offences Act.

On December 6, 2019, Pope Francis removed the code of confidentiality known as the “pontifical secret” in cases of sexual violence. The Vatican News reported that the new guidelines ensure that church authorities dealing with cases of sexual violence do “not prevent the fulfilment of the obligations laid down in all places by civil laws”.

Since sexual abuse cases were until then held under the pontifical secret, it was difficult to communicate the outcomes of investigations and trials or the extrajudicial processes to the victim or their representatives.

In May 2021, Pope Francis issued the most extensive revision to Church law in four decades insisting that bishops take action against clerics who abuse minors and vulnerable adults. The revision involves section six of Canon Law. It replaced the code approved by Pope John Paul II in 1983. The law came into effect on December 8, 2021.

The revised section, involving about 90 articles concerning crime and punishment, incorporates many existing changes made by Pope Francis and his predecessor Pope Benedict XVI. It introduces new categories and clearer, more specific language in an attempt to give bishops less room to wriggle out.

In a separate accompanying document, the pope reminded bishops that they were responsible for following the letter of the law. One aim of the revisions, Pope Francis said, was to “reduce the number of cases in which the imposition of a penalty was left to the discretion of authorities”.

Archbishop Filippo Iannone, head of the Vatican department that oversaw the project, said there had been “a climate of excessive slack in the interpretation of penal law”, where some bishops sometimes put mercy before justice. Sexual abuse of minors was put under a new section titled “Offences Against Human Life, Dignity and Liberty”, compared to the previously vague “Crimes Against Special Obligations”.

A study of the rights of a victim as per current canonical procedural law shows that the protection offered by this law is even greater than the provisions of the POCSO. Canon Law contains several protective provisions to ensure the dignity and human rights of the victim or survivor of clergy sexual abuse.

It is also in tune with the United Nations convention on the rights of the child. A right is created to support the victim during the Canonical penal trial as well as under the stat law. The following is an enumerative, not exhaustive, list of the rights of the victim under the Canon Law:

  • The duty to report the crime. Included in this right is the duty of every diocese to set up, within a year from the entry into force of these norms, a public stable and easily accessible system for submission of reports and the same shall inform the pontifical representative of the establishment of such a system that facilitates reporting. As per this guideline, a centre was set up in Mumbai on September 8, 2021: the St Joseph Safeguarding Centre which is located at the Archbishop’s House Extension in the Eucharistic Congress Building at Colaba.
  • The right to be informed about protection under Canonical penal provisions. Where protocols have already been approved by the church authorities concerned for safeguarding of minors, these need to be made available in the public domain.
  • A legal obligation to support the victims. The victim and their families are to be treated with dignity and respect and to be a) welcomed, listened to and supported including through provision of specific services b) offered spiritual assistance c) offered medical assistance including therapeutic and psychological assistance as required.
  • The right to participate in the criminal procedure and be a party to the proceedings to ensure transparency and confidentiality.
  • The right to claim damages and to be informed about the developments in the case, even when the victim does not wish to be a party to the proceedings.
  • The right to be represented by a lawyer / prosecutor of his/her choice during the proceedings.
  • The right to legal aid.
  • The right to be supported in the exercise of his/her civil rights. These norms apply without prejudice to the rights and obligations established in each case by state laws, particularly those concerning any reporting obligations to the competent civil authorities.
  • The person conducting the investigation has also the opportunity and the jurisdiction to determine damages.
From the Twitter handle of the Pontifical Commission for the Protection of Minors.

Following up on the 2019 meeting, yet another academic seminar was hosted by the Pontifical Commission for the Protection of Minors in December 2021. The seminar on “The Rights of Alleged Victims of Sexual Abuse as Minors in Canonical Penal Procedures” was attended by Roman Curia officials and legal experts.

Myriam Wijlens, a member of the Commission, described it as a platform to “listen”, the new word of the pontificate of Pope Francis.

On the first day, the experts listened to the testimony of a victim from France about her experience of the procedure. It was not about to abuse itself, but about the experience of the procedure.

A special rapporteur of the United Nations spoke about international standards and agreements for protecting the victims under different legal traditions. Then, the current canonical provisions were explained.

Experts from various legal traditions explained the criminal provisions for victim protection such as those from the English common law traditions followed in Australia, the Philippines, India, and the United States; those with roots in Roman law such as Argentina, Spain, France, and Italy; and those belonging to the Germanic tradition such as Germany and Poland.

The way forward for the Church in India

Against this background, how will the church in India move forward? What changes will these legal provisions bring about? The most important is that when these norms are flouted, which is the appellate authority the violated children and their supporters can approach? What happens when the law is flouted at the highest level?

Usually under state laws, these are well established norms written into the general criminal jurisprudence. Where the church is concerned, the highest authority is very distant and the lay people do not have access to it.

Additionally, where are the training programmes conducted to ensure that these changes are filtered down to the parishes where the officiating priests are seeped into the traditional patriarchal norms of Canon Law, which basically protect themselves?

Astrid Lobo Gajiwala, who has worked closely with church structures, described Canon Law as “a law set by men in authority for their own protection – a law of men, by men, for men and not to protect the victims of sexual crime”.

These are the challenges that we face. The Church in India will have to do some serious soul-searching. It must bring in the new approach to victim support and transparency in procedures, to combat the clergy abuse of minors and vulnerable adults within the church.

Flavia Agnes is a women’s rights lawyer.