Category Archives: Magisterium

How the Vatican evades human rights obligations through Canon Law, diplomatic immunity and other dodges


How the Vatican evades human rights obligations through Canon Law, diplomatic immunity and other dodges

From the Link: How the Vatican evades human rights obligations through Canon Law, diplomatic immunity and other dodges

The Vatican

The Vatican

The Vatican doesn’t acknowledge human rights unless they are in accordance with Church doctrine. Its courts have been found by the EU to violate the right to a fair trial. And the Vatican has even maintained that its signature to one of the few human rights treaties it has signed (and even then with “reservations”) only applies to its own territory and not to the Catholic Church.

“One cannot then appeal to these rights of man in order to oppose the interventions of the Magisterium.”
— Joseph Cardinal Ratzinger, Prefect, Congregation for the Doctrine of the Faith, 1990 [1]

The Vatican not only quietly rejects the supremacy of human rights in principle, it also cultivates effective ways to get around having to implement them.

♦ Diplomatic recognition, sought worldwide, brings diplomatic immunity from charges of human rights abuse

The doctrine of sovereign immunity has its roots in the law of feudal England and is based on the idea that the ruler can do no wrong. In US law this is broadly applied to the heads of foreign states. [2] It was sovereign immunity that foiled an American attempt to sue Benedict XVI for the Vatican’s handling of child abuse by priests. The Church lawyers argued that the pope, as the Vatican’s head of state, enjoys immunity against lawsuits in US courts. [3]

In U.S. courts foreign countries are also generally immune from civil actions, with exemptions primarily for commercial acts. This means that unless a case can be brought in under an exemption the only recourse may be to try to sue the Vatican in a country which does not have diplomatic relations with it. However, as the map shows, most of the world’s countries (coloured blue) already recognise the statehood of the Holy See, as the Vatican is called officially.

There are very few (gray) countries left which don’t yet have diplomatic relations with the Holy See. These amount to just three island nations (the Comoros, north of Madagascar, theMaldives, southwest of India, and Tuvalu, north of New Zealand) — two African nations (Mauritania and Somalia) — three from the Middle East (Saudi Arabia, Oman and Afghanistan) — and eight from Asia (Bhutan, People’s Republic of China, North Korea, Myanmar, Laos, Vietnam, Brunei and Malaysia). [4]

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The logistics of suing the Vatican from some of these countries could be daunting. Furthermore, due to the Vatican’s persistent diplomatic efforts, the number of countries which don’t recognise the Vatican is declining every year. (And one of the few left, Tuvalu, is gradually disappearing beneath the rising seas).

The Vatican’s web of diplomatic relations also makes its representatives immune to prosecution under international law. The 1961 Vienna Convention tries to provide diplomats with the security needed to perform their jobs. It is thanks to this treaty that states now express their displeasure by expelling the diplomats of a foreign country, rather than imprisoning them.

Diplomatic immunity in action: Archbishop Wesolowski is whisked away to the Vatican

However, this treaty was never meant to allow accused rapists of children to go free. Yet this appeared to be the intention when Bishop Paul Gallagher, the papal nuncio or pope’s ambassador to Australia refused to hand over to prosecutors documents on two priests who had abused more than 100 children over 40 years. [5] The nuncio invoked diplomatic immunity. However, as a UN committee later reminded the Vatican, [6] as a signatory of the Convention on the Rights of the Child, it was obliged to hand over this evidence. [7] Pope Francis was apparently so pleased by the nuncio’s attempts to block justice in Australia’s worst clerical abuse scandal, that the next year he promoted him to archbishop and to the number three post in his kingdom  the Vatican’s Foreign Minister. [8]

as happened in the Dominican Republic. [9] There on June 24, 2013 a deacon was arrested and admitted to procuring impoverished boys to be sexually abused by the papal nuncio Archbishop Jozef Wesolowski. [10] By the time the deacon appeared on TV and said that others in the Church knew about this [11] the nuncio had vanished. He had been secretly whisked away and reappeared in the Vatican.

At the TV station they suspected that there had been a leak.

A “dossier” accusing papal nuncio Archbishop Josef Wesolowski of sex abuse of minors was sent to Pope Francis sometime in July [2013] by Santo Domingo Cardinal Nicolás de Jesús López Rodríguez. The pope found the information credible enough to dismiss Wesolowski, nuncio to both the Dominican Republic and Puerto Rico, on Aug. 21 via confidential letter N.2706/PR to the bishops of both countries.

Neither the civil authorities nor the public knew about Wesolowski until a local TV program did an exposé on Aug. 31. The result of a year-long investigation, the broadcast contained testimony from residents of the Zona Colonial in Santo Domingo that Wesolowski paid minors for sex.

Three days after the TV broadcast, a local bishop confirmed that Wesolowski had been recalled for sexually abusing minors.

Wesolowski reportedly had left the country only a few days before. [12]

In this case the Vatican acted against its own much-touted guidelines:

the church failed to inform the local authorities of the evidence against him, secretly recalled him to Rome […] before he could be investigated, and then invoked diplomatic immunity for Mr. Wesolowski so that he could not face trial in the Dominican Republic. [13]

Once he was safely in Rome the Vatican “confirmed that Wesolowski is a citizen of the Vatican city state, that the Vatican doesn’t extradite its citizens and that as a nuncio, or Holy See ambassador, Wesolowski enjoys full diplomatic immunity”. [14] Experts in international law say that the Vatican could have lifted the nuncio’s diplomatic immunity to let him face trial in the Dominical Republic (which could hardly be accused of having an anti-Catholic judiciary). [15]

However, the Church came under increasing pressure when the United Nations Committee against Torture stepped in. In June 2014 it urged the Vatican, if the investigation warranted it, to either try Wesolowski itself under the Vatican State criminal code (not canon law) or let someone else do so — and report back on the outcome. [16]

In August 2014, the Vatican gave Wesolwski a secret canon law trial to determine if he had violated Church doctrine. The Vatican tribunal found Wesolwski’s guilty of abusing young boys and defrocked him. But it refused to provide any information about his whereabouts or how he pleaded to the charges and refused to release contact information for his lawyer. [17] This deprived Mr. Wesolowski of his diplomatic immunity — so the Vatican then fell back on his Vatican State citizenship as the reason for not handing him over.

To avoid further challenges to its jurisdiction, the Vatican refused to provide the necessary documents to Polish prosecutors, who had hoped to try Wesolowski, a dual Vatican-Polish citizen. [18] The Vatican also got the Dominican Republic to fall into line. In August 2014, the day after Wesolowski lost his diplomatic immunity, the Santo Dominican prosecutor’s office announced that it was launching an investigation. [19] However, by the end of the year, the Dominican Republic’s top prosecutor was expressing “appreciation and satisfaction” with the Vatican’s actions (!) and said that the Vatican was the right place for the trial. [20] The Dominican authorities even stonewalled the legal inquiries of Polish prosecutors about Wesolowski, [21] which forced Poland to suspend its inquiry. [22] This cleared the way for the Vatican to conduct its own trial under the criminal law of its own state, which would satisfy the UN commitee, but keep control over the proceedings.

A Polish expert on church law, Prof. Pawel Borecki, explained why the Vatican was determined to maintain control:

“The Vatican will seek that this case does not go beyond its borders. Wesolowski is a high-ranking diplomat. He has knowledge of how the Roman curia works. He may also know about pedophilia in the church and if other high-ranking priests are involved in the crime. In a trial abroad he could reveal everything. Therefore, we can expect that the Vatican will not release him and it will hand down a severe punishment.” [23]

♦ Keeping out of key human rights treaty shields Vatican courts from international standards

The Vatican can’t be censured for violating the right to a fair trial which is enshrined in the European Convention on Human Rights because it hasn’t signed the treaty. Instead, in a 2001 court case, it was Italy that was faulted for enforcing the unfair judgement of the Vatican court.

In essence the European Court of Human Rights found in 2001 that the procedures of the Roman Rota, the ecclesiastical appeals court responsible for marriage-annulment applications, failed to reach the standards required for a fair trial under article 6(1) of the European Convention and that, therefore, its judgments could not properly be recognized and enforced under Italian law. ECHR noted that in Rota proceedings witness statements were not provided to parties, thus depriving the parties of an opportunity to comment on them. The parties were not advised that they could appoint lawyers to appear for them, nor advised of the terms of the legal submissions made by the canon lawyer appointed by the court to argue against annulment. Finally, the parties were refused sight of a full copy of the Rota’s judgment, in which the ecclesiastical court set out its reasoning. Given these circumstances, the Strasbourg court took the view that justice was not done in annulment proceedings before church courts. [24]

“As new scandals erupt in Germany, Holland, Italy, Spain, Brazil and Nigeria, the Pope has failed to put in place and enforce mandatory child protection policy across his church. I asked a senior church figure why this was the case. I was told that to put in place global policy underpinned by church law would admit that the Vatican had the responsibility and the power to do so, and expose it to lawsuits and potentially massive financial losses.” ― Colm O'Gorman, Independent, 9 March 2010

“As new scandals erupt in Germany, Holland, Italy, Spain, Brazil and Nigeria, the Pope has failed to put in place and enforce mandatory child protection policy across his church. I asked a senior church figure why this was the case. I was told that to put in place global policy underpinned by church law would admit that the Vatican had the responsibility and the power to do so, and expose it to lawsuits and potentially massive financial losses.” ― Colm O’Gorman, Independent, 9 March 2010

♦ Damage limitation, part 1: Blame the bishops

If the Vatican doesn’t sign a human rights treaty, it’s easier to confine blame (and costs) to the local bishop. This helps the Vatican deny all responsibility for what is done in the Church worldwide. Thus the Vatican’s top prosecutor admits no fault on the part of the Church watchdog body, the Congregation of the Doctrine of the Faith which, under Cardinal Ratzinger (now the present pope), dealt with abuse cases. [25]

♦ Damage limitation, part 2: Blame the priests

Even better, from the Vatican’s point of view, is to place sole blame on the errant priests.

In the US Vatican lawyers argued that Roman Catholic clerics are not officials or employees of the Holy See. [26] This is now the main Vatican defence against lawsuits in the United States seeking to hold the Holy See liable for the failure of its bishops to stop priests from raping and molesting children.

Usually foreign countries are immune from civil actions in U.S. courts, but there are exceptions to the Foreign Sovereign Immunity Act which courts have said were applicable in this case. The statute says that plaintiffs can establish subject matter jurisdiction over a foreign sovereign, if a crime was committed in the United States by any official or employee of the foreign state and that the crimes were committed within the scope of employment. [27]

In the UK the same argument is being repeated. The English Catholic Church said priests are self-employed and thus it’s not responsible for victim compensation. Mindful of the dioceses in the US which were obliged to pay compensation to victims of clerical abuse and in some cases have gone bankrupt, [28] it has tried to argue that priests are self-employed. [29] However, in a High Court ruling on 8 November 2011 the judge rejected that argument, stating that the relationship between a priest and his bishop is sufficiently close so as to impose responsibility. According to the alleged victim’s lawyer, “This is a key decision with potentially far-reaching implications, effectively extending the principle of vicarious liability”. [30]

There are other theological variations on the responsibility theme: Whereas the Catholic Church says that its priests are self-employed, the Church of England, in order to avoid giving its priests workers’ rights, claimed they were employed by God. [31] And since 2008 it has said that they are “office holders”, in other words, employed by no one.

In Australia, too, the Vatican tries to hold the priests, and not the Church, legally liable in cases of abuse. It does through the remarkable claim, supported in a 2007 decision by the Supreme Court of New South Wales, that the “Catholic Church” does not exist as a single legal entity. [32] Therefore it cannot be sued; it cannot be held responsible for the behaviour of individuals who work in its “unincorporated associations”. Victims of assault could sue the responsible individuals or their unincorporated associations but it would be pointless; the individual religious take vows of poverty and the unincorporated associations own nothing. [33]

However, in 2014 Cardinal George Pell suggested that the Australian Church was no more responsible for priests’ crimes than any other organisation was for its employees. [34] Yes, employees.

♦ Damage limitation, part 3: Blame religious orders then let them refuse to pay

The English High Court and Court of Appeal both ruled that a Catholic diocese was liable to compensate the boys in a Catholic home who had been beaten, kicked and raped. However, that didn’t stop the diocese from claiming that a religious order was responsible and refusing to pay. And, of course, the order also denied any responsibility. [35] By 2012 the legal proceedings had been dragging on for eight years and due to the strain, many of the broken victims had dropped out of the process. [36]

And in Ireland where the Catholic Church and 19 religious orders agreed to split the compensation 50-50, the orders, one after another, have refused to pay. As of 2012 this had been going on for ten years. [37]

Even the four orders of Catholic nuns who ran the Magdalene Laundries and profited from what amounted to slave labour have refused to pay. [38] The Good Shepherd Sisters, The Sisters of Our Lady of Charity, The Sisters of Mercy and The Sisters of Charity are keeping all the profits from selling prime real estate when their gulags were shut down are refusing to share this with their victims. [39]

In Canada it’s the same story. Eight Catholic orders ran the orphanages and psychiatric hospitals in the Province of Quebec. Federal subsidies were greater for psychiatric hospitals than for orphanages, so to maximise the profits, large numbers of normal children were “diagnosed” as feeble-minded or insane. In both kinds of Church-run institutions the children were subjected to unimaginable brutality and many died. Yet neither the orders involved nor the Vatican are willing to pay any compensation to the traumatised survivors. [40]

Since the pope is the head of every Catholic religious order, they must be doing this with his consent. As David Clohessy of the Survivors Network of those Abused by Priests, writes,

The Catholic church isn’t some loosely-knit hippie commune. It’s a rigid, secretive, tightly-knit institution. So when crimes happen, it’s disingenuous for church officials to pretend that everyone involved is disconnected from one another. [41]

♦ Damage limitation, part 4: Blame the victim

In a sworn deposition in 2011 the bishop of Syracuse actually said that the victims of child-molesting priests are partly to blame for their own abuse. [42]

♦ Damage limitation, part 5: Lobby against extending the time limits for suing the Church

Many victims are unable to talk about abuse or face their accusers until they reach their 30s, 40s or later, putting the crime beyond the reach of the law. Yet in some US states, like New York, the victim is required to come forth by age 23. The US Supreme Court ruled that changes in criminal limits (statues of limitation) cannot be retroactive, so that any extension of present ones they will affect only recent and future crimes. [43] However, even this the Catholic Church is lobbying to prevent. If it succeeds, then the time limits can prevent penalties being applied for human rights abuses. Even when the Church admits it knew about the abuse, the priest admits that he did it, and there is independent evidence to back this up, “if the statute of limitations has expired, there won’t be any justice”. [44]

♦ Damage limitation, part 6: other “evasions and machinations” 

These include (but are not confined to):

— Spending millions of dollars to fight sexual abuse lawsuits and keeping sealed the names of thousands of accused priests, as well as the outcomes of some disciplinary cases sent to the Vatican. [45]

— Hiding funds to avoid compensating victims. In 2007 a judge in informed the Diocese of San Diego that its attempt to shift the diocese’s assets while the case was pending violated bankruptcy laws. [46] And that same year the Vatican allowed the Milwaukee archdiocese to transfer $57 million into a trust for Catholic cemetery maintenance, where it might be better protected, as Archbishop Dolan wrote, “from any legal claim and liability.” [47]

— Legal quibbles of all kinds. For instance, in 2011 church leaders in St. Louis claimed not to be liable for an abusive priest because while he had gotten to know a victim on church property, the abuse itself happened elsewhere. [48]

— Going after honest clerics who act as whistleblowers. A group of priests and nuns formed in 2013 says the Roman Catholic Church is still protecting sexual predators. Calling themselves the Catholic Whistleblowers, they say that priests who spoke up have been “removed from their parishes, hustled into retirement or declared ‘unstable’ and sent to treatment centres for clergy with substance-abuse problems or sexual addictions.” [49]

— Subjecting the victims to an oath of secrecy. This is the oath that the victims of the Irish paedophile priest Father Brendan Smyth were obliged to swear before Cardinal Sean Brady in 1975 when he was a priest and professor of canon law: [50]

“I will never directly or indirectly, by means of a nod, or of a word, by writing, or in any other way, and under whatever type of pretext, even for the most urgent and most serious cause (even) for the purpose of a greater good, commit anything against this fidelity to the secret, unless a…dispensation has been expressly given to me by the Supreme Pontiff.” [51]

— Tipping off accused clerics to allow destruction of evidence. In Australia in 2002, when a bishop learned that a child victim of one of his priests had gone to the police, he drove to a neighbouring town to warn him. This gave the priest, who was later comnvicted for repeatedly raping four children, the chance to destroy incriminating evidence. [52]

— Witness intimidation. In Germany in 2009 the Catholic Church hired detectives who turned at the homes of abused children and tried to get them retract their claims against one of its priests. [53]

— Hush money. In Australia in 2015 the nephew of a priest said that Cardinal Pell had tried to bribe him to keep quiet about abuse by his uncle. [54] And this tactic was proven to have been used in Germany in 1999, when cash payments were made to the parents of abused children at the same time as they signed agreement to remain silent. See Money for silence.

 It has been plausibly claimed that “the failure of the Vatican to promulgate a mandatory worldwide code of conduct, with a reporting requirement (for child abuse)...stems precisely from a fear of acknowledging its authority over national churches and implicitly conceding that priests and bishops, whom it appoints, are actually its agents in a legal sense.” — Patrick Smyth

It has been plausibly claimed that “the failure of the Vatican to promulgate a mandatory worldwide code of conduct, with a reporting requirement (for child abuse)…stems precisely from a fear of acknowledging its authority over national churches and implicitly conceding that priests and bishops, whom it appoints, are actually its agents in a legal sense.” — Patrick Smyth

♦ The Church follows its own Canon Law (which can be changed by a stroke of the papal pen) and must be forced to comply with civil law which is based on human rights

Amnesty International criticised the Vatican in its 2011 report, claiming it “did not sufficiently comply with its international obligations relating to the protection of children”. AI pointed out that the Vatican enlarged its own definition of “crimes in canon law” beyond “the sexual abuse of minors” ― but not the punishments

Amendments to the canon law promulgated in May introduced the “delicts” of paedophile pornography and abuse of mentally disabled people; the maximum punishment for these “delicts” is dismissal or deposition. Canon law does not include an obligation for Church authorities to report cases to civil authorities for criminal investigation. Secrecy is mandatory throughout the proceedings. [55]

As if the record unpunished priest abusers were not proof enough, a letter written in 2001 by a senior Vatican official has come to light praising a French bishop when he was convicted of failing to report a paedophile priest to the police. In 2010 the Bishop was given a three-month suspended prison sentence for not denouncing the priest, who was sentenced to 18 years in jail in 2000 for sexually abusing 11 boys. [56]

However, Cardinal Castrillon Hoyos, Prefect of the Congregation of the Clergy, told the Bishop, “I congratulate you for not denouncing a priest to the civil authorities.” And he concludes the letter to the French bishop by holding up the Bishops’ behaviour as a model for others; “This Congregation, in order to encourage brothers in the episcopate in this delicate matter, will forward a copy of this letter to all the conferences of bishops.” [57]

The Cardinal said afterwards that his letter was about protecting the seal of the confessional in accordance with Church law (Canon 983), but there is no mention of this in the text itself and at his trial the Bishop disputed this. [58] However, even if this were true, this would not hold in France which has apparently legislated a “duty to report” where children are involved. “French law recognises the seal of the confessional as part of a protected category of ‘professional secrets’, but makes an exception for crimes committed against minors”. [59]

 “Clericalism has many faces.  It is the delusion that priests speak for the Almighty and therefore are entitled to special treatment and even immunity from accountability for criminal behavior. It is the source of the conviction held by many, including top-level Vatican officials, that the legal systems of secular society are subordinate to Canon Law, the Catholic Church’s own system of governance.” ― Rev. Thomas P. Doyle, O.P., J.C.D.

“Clericalism has many faces. It is the delusion that priests speak for the Almighty and therefore are entitled to special treatment and even immunity from accountability for criminal behavior. It is the source of the conviction held by many, including top-level Vatican officials, that the legal systems of secular society are subordinate to Canon Law, the Catholic Church’s own system of governance.”
― Rev. Thomas P. Doyle, O.P., J.C.D.

Later the Cardinal also dropped a bombshell. He claimed that, “After consulting the pope, I wrote a letter to the bishop, congratulating him as a model of a father who does not turn in his children.” [60]

If Castrillon Hoyos is telling the truth, then John Paul personally approved sending this letter in direct violation of the instruction Card[inal] Ratzinger’s CDF had sent down months earlier, urging bishops in countries where the law obliges them to report knowledge of sexual crimes against children to civil authorities, to follow the law. If Castrillon Hoyos is being truthful, it would suggest that, as far as the pontiff was concerned, the Ratzinger directive was window dressing. [61]

The Church record of stonewalling criminal investigations certainly suggests that, until and unless forced to do otherwise, Canon Law, the legal system of the Catholic Church, is all the Church feels bound to follow. The outspoken Monsignor Maurice Dooley, an expert on Canon Law, has even stated this publicly. In 2002 he declared that bishops did not have to tell the Irish police about paedophile clerics and might even shelter these priests. “As far as the Church is concerned, its laws come first.” [62] And in April 2010 the Brazilian Archbishop Dadeus Grings concurred, saying that priestly abuse was a matter of internal church discipline, not something to report to the police. “For the church to go and accuse its own sons would be a little strange.” [63]

And even senior churchmen claiming that it is Church policy to report suspected abuse to the police have been found to be lying. In Australia, for instance, despite assurances by a bishop that the church had enforced strict rules to ensure such cases were reported to the police as a “matter of absolute policy’”, he and an archbishop secretly defrocked an abuser who was assured that “your good name will be protected by the confidential nature of this process”. [64]

In 2014 a United Nations committee severely criticised the Vatican’s handling of abuse cases and its failure to comply with the Convention on the Rights of the Child.

The panel rejected the church’s key contention that the Vatican has no jurisdiction over its bishops and priests around the world, and is responsible for putting in effect the Convention on the Rights of the Child only within the tiny territory of Vatican City. By ratifying the convention, the panel said, the Vatican took responsibility for making sure it was respected by individuals and institutions under the Holy See’s authority around the world. [65]

To this the Vatican replied by using its usual shell game, switching between its three identities, as dictated by expediency:  “The Committee has overlooked important distinctions between the Holy See, Vatican City State and the universal Catholic Church.” [66]

Further reading about the Pope and the law

Geoffrey Robertson, QC, “Put the pope in the dock. Legal immunity cannot hold. The Vatican should feel the full weight of international law”, Guardian, 2 April 2010. [This is a proposal to prosecute the Vatican under criminal law, where diplomatic immunity does not apply, but where an arrest could only be made in a country (like the UK, but not the US) which has signed the Statute of the International Criminal Court.]

“Call to treat Vatican as a rogue state: Lawyer Geoffrey Robertson says the church must abandon canon law”,Sydney Morning Herald, 9 September 2010. http://www.smh.com.au/world/call-to-treat-vatican-as-a-rogue-state-20100908-151cg.html

Afua Hirsch, “Canon law has allowed abuse priests to escape punishment, says lawyer”, Guardian, 7 September 2010. http://www.guardian.co.uk/world/2010/sep/07/canon-law-abuse-priests-escape-punishment

Alan Duke, “Lawsuit demands Vatican name priests accused of sex abuse”, CNN, 22 April 2010.  “Pope Benedict XVI was named as a defendant because he has the ultimate authority to remove priests and because of his involvement in reviewing sex abuse cases when he was Cardinal Joseph Ratzinger, the suit says.” [This is a suit under civil law and, as the US has recognised the Holy See by establishing diplomatic relations with it, this suit depends upon proving that the Holy See acted in a manner which removes its immunity, as outlined above.]

Further reading about the Pope and the law

Geoffrey Robertson, QC, “Put the pope in the dock. Legal immunity cannot hold. The Vatican should feel the full weight of international law”, Guardian, 2 April 2010. [This is a proposal to prosecute the Vatican under criminal law, where diplomatic immunity does not apply, but where an arrest could only be made in a country (like the UK, but not the US) which has signed the Statute of the International Criminal Court.]

“Call to treat Vatican as a rogue state: Lawyer Geoffrey Robertson says the church must abandon canon law”,Sydney Morning Herald, 9 September 2010. http://www.smh.com.au/world/call-to-treat-vatican-as-a-rogue-state-20100908-151cg.html

Afua Hirsch, “Canon law has allowed abuse priests to escape punishment, says lawyer”, Guardian, 7 September 2010. http://www.guardian.co.uk/world/2010/sep/07/canon-law-abuse-priests-escape-punishment

Alan Duke, “Lawsuit demands Vatican name priests accused of sex abuse”, CNN, 22 April 2010.  “Pope Benedict XVI was named as a defendant because he has the ultimate authority to remove priests and because of his involvement in reviewing sex abuse cases when he was Cardinal Joseph Ratzinger, the suit says.” [This is a suit under civil law and, as the US has recognised the Holy See by establishing diplomatic relations with it, this suit depends upon proving that the Holy See acted in a manner which removes its immunity, as outlined above.]

Notes

  1. Joseph Cardinal Ratzinger, Prefect, Congregation for the Doctrine of the Faith, “Instruction: Donum veritatis, On the Ecclesial Vocation of the Theologian”, 1990-03-24, #36.
  2. “”Immunity”, The Free Dictionary.
  3. John L. Allen Jr, “The autonomy of bishops, and suing the Vatican”, National Catholic Reporter, 21 May 2010.
  4. Sandro Magister, “The Holy See’s Diplomatic Net. Latest Acquisition: Russia”, Chiesa, 14 January 2010.
    The Holy See does not yet have relations with sixteen countries, most of them in Asia, many of them with majority Muslim populations. There is no Vatican representative in nine of these countries: Afghanistan, Saudi Arabia, Bhutan, the People’s Republic of China, North Korea, the Maldives, Oman, Tuvalu, and Vietnam. While in seven other countries there are apostolic delegates, pontifical representatives to the local Catholic communities but not to the government. Three of these countries are African: the Comoros, Mauritania, and Somalia. And four of them are Asian: Brunei, Laos, Malaysia, Myanmar.
  5. “Australian abuse inquiry faces diplomatic standoff with Vatican”, National Catholic Reporter, 19 December 2013.
  6. [UN] Committee against Torture, Concluding observations on the initial report of the Holy See, 17 June 201, #14.
  7. See article 6.1, “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.” Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entered into force on 18 January 2002,
  8. “British archbishop who claimed diplomatic immunity to avoid handing documents to paedophile investigators is promoted to third highest role in Vatican by the Pope”, Daily Mail, 10 November 2014.
  9. “Dominican Republic says Vatican to handle landmark sex abuse case”, Agence France-Presse, 1 December 2014.
  10. Laurie Goodstein, “Vatican Defrocks Ambassador in Abuse Inquiry”, New York Times, 27 June 2014.
  11. . “Priests accused of child sex abuse to stand trial in Poland?”, Radio Poland, 16 October 2013.
  12. Betty Clermont, “Pope Francis Concealed His Actions Against Two Prelates. Now Both ‘Whereabouts are Unknown’”, Daily Kos, 29 September 2013.
  13. Laurie Goodstein, “For Nuncio Accused of Abuse, Dominicans Want Justice at Home, Not Abroad”, New York Times, 23 August 2014.
  14. “Vatican to Polish prosecutor: we don’t extradite”, Associated Press, 11 January 2014.
  15. Laurie Goodstein, “For Nuncio Accused of Abuse, Dominicans Want Justice at Home, Not Abroad”, New York Times, 23 August 2014
  16. The United Nations Committee against Torture said on 17 June 2014, ref CAT/C/VAT/CO/1:
    Impunity

    13. The Committee appreciates the confirmation provided regarding the ongoing investigation under the Vatican City State Criminal Code of allegations of sexual abuse of minors by Archbishop Josef Wesolowski, former papal nuncio to the Dominican Republic. The Committee notes that the Republic of Poland has reportedly requested the extradition of Archbishop Wesolowski. The Committee also is concerned that the State party did not identify any case to date in which it has prosecuted an individual responsible for the commission of or complicity or participation in a violation of the Convention (arts. 4, 5, 6, 7 and 8).

    The State party should ensure that its competent authorities proceed to a prompt and impartial investigation of Archbishop Wesolowski and any other persons accused of perpetrating or being complicit in violations of the Convention who are nationals of the State party or are present on the territory of the State party. If warranted, the State party should ensure such persons are criminally prosecuted or extradited for prosecution by the civil authorities of another State party. The Committee requests the State party to provide it with information on the outcome of the investigation concerning Archbishop Wesolowski.

  17. “Dominican court opens case on ex-Vatican official”, Associated Press, 31 August 2014.
  18. “Poland Suspends Inquiry Into a Former Vatican Envoy”, New York Times, 22 December 2014.
  19. “Dominican court opens case on ex-Vatican official”, Associated Press, 31 August 2014.
  20. “Dominican prosecutor OKs Vatican sex abuse case”, Associated Press, 2 December 2014.
  21. “Poland suspends paedophilia investigation against archbishop”, Polski Radio, 19 December 2014.
  22. “Poland Suspends Inquiry Into a Former Vatican Envoy”, New York Times, 22 December 2014.
  23. Donald Snyder, “Venue debated for trial of former nuncio accused of abusing minors”, National Catholic Reporter, 6 September 2014.
  24. Pellegrini v. Italy, 2001-VIII, Application No: 30882/96
  25. Laurie Goodstein, “U.N. Panel Criticizes the Vatican Over Sexual Abuse”, New York Times, 5 February 2014.
  26. Stoyan Zaimov, “Catholic Church Not Employer of Pedophile Priests, US Judge Rules”, Christian Post, 22 August 2014.
  27. “Bishops who mishandle abuse must be accountable, says Vatican official”, Catholic Herald, 8 February 2012.
  28. “Pope-bishop relationship key in sex abuse defense”, AP, 18 May 2010.
  29. “Settlements and bankruptcies in [American] Catholic sex abuse cases”, Wikipedia.
  30. “Catholic bishop criticises ruling on church liability for actions of priests”, Guardian, 15 November 2011.
    Crispian Hollis, Bishop of Portsmouth, “The Diocese, Fr Wilf Baldwin and the High Court Judgment”, 10 November 2011.
  31. “Catholic Church responsible for child abuse, High Court rules”, The Lawyer, 9 November 2011.
  32. Jonathan Petre, “Clergy close to workers’ rights”, Telegraph, 19 January 2004.
  33. Trustees of the Roman Catholic Church V Ellis & Anor [2007] NSWCA 117 (24 May 2007).
  34. Australian Cardinal angers abuse victims, The Tablet, 22 August 2014.
  35. Glen Coulton, letter to Sydney Morning Herald, 6 February 2011.
  36. “Church abuse case goes to highest court”, The Times, 23 July 2012.
  37. “Roman Catholic church stalls on £8m child abuse claims“, Observer, 15 November 2009
  38. “Counting the cost of abuse redress”, Irish Examiner, 01 October 2012
  39. “Kenny: I can’t force orders to contribute to Magdalenes redress fund”, Breaking News IE, 17 July 2013.
  40. Conor Ryan, “Site by laundry grave sold for €61.8m”, Irish Examiner, 05 July 2011.
  41. Petition concerning the Duplessis Orphans, presented to the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, on behalf of the Duplessis Orphans, by Dr. Jonathan Levy and Rod Vienneau, 15 April 2011. http://www.vaticanbankclaims.com/quebec.pdf This is a reliable summary, as any factual inaccuracies would expose this human rights lawyer to charges of perjury, as explained at the end of the document.
  42. “Child victims partly to blame in priest sex-abuse cases, Syracuse bishop testified”, Syracuse.com, 13 September 2015.
  43. “Judge: Try Philadelphia priests, official together”, AP, 29 July 2011.
  44. Marci A. Hamilton, “Why ensuring accountability for clergy sexual abuse of children has proved so difficult, even though it remains so crucial”, Findlaw, 6 May 2004.
  45. Marci A. Hamilton, a professor at the Benjamin N. Cardozo School of Law at Yeshiva University who represents plaintiffs in sexual abuse suits, quoted in “Church Battles Efforts to Ease Sex Abuse Suits”, New York Times, 14 June 2012.
  46. “Ahead of Pope Francis’ Visit, Survivors of Sexual Abuse Take Stock”, New York Times, 15 September 2015.
  47. Amnesty International, Annual Report, 2011: “Vatican”.
  48. “Dolan Sought to Protect Church Assets, Files Show”, New York Times, 1 July 2013.
    “Appeals court: Judge erred on Milwaukee archdiocese fund”, AP, 10 March 2015.
  49. “Judge Orders External Audit of San Diego Diocese Accounts”, Associated Press, carried in San Luis Obispo Tribune, 11 April 2007.
  50. “Abuse victims criticise Brady’s decision to stay”, BBC News, 18 May 2010.
  51. “Revealed: the oath Brady, Smyth and the children swore”, Irish Independent, 3 December 2012.
  52. “Courage puts shame ‘squarely where it belongs'”, Sydney Morning Herald, 24 July 2013.
  53. “Church Whistle-Blowers Join Forces on Abuse”, New York Times, 20 May 2013.
  54. “Cardinal Pell denies attempting to bribe alleged abuse victim and helping to move paedophile priest”, Tablet, 21 May 2015.
  55. “Mo. appeals court rules Catholic church not responsible for some abuse”, St. Louis Public Radio, 5 July 2011.
  56. “How the German Catholic Church Protected a Pedophile Priest”, Spiegel, 24 April 2009.
  57. Tom Heneghan, “John Paul backed praise for hiding abuse – cardinal”, Reuters, 18 April 2010.
  58. Cardinal Darío del Niño Jesús Castrillón Hoyos to Bishop Pierre Pican, 8 September 2001. Translation in “Darío Castrillón Hoyos”,
  59. John L Allen Jr, “Crisis hangs over pope in Malta like volcanic ash”, National Catholic Register, 17 April 2010.
  60. Tom Heneghan, “John Paul backed praise for hiding abuse – cardinal”, Reuters, 18 April 2010.
  61. Rod Dreher, “Cardinal: John Paul approved of cover-up”, Beliefnet, 18 April 2010.
  62. Ciaran Byrne, “Controversial cleric a ‘grade A1 idiot’, says colleague”, Irish Independent, 20 March 2010.
  63. “Catholic archbishop says kids are spontaneously gay”, Examiner.com, 8 May 2010.
  64. “Calls multiply for inquiry into handling of sex abuse”, Sydney Morning Herald, 1 August 2012.
  65. Laurie Goodstein, Nick Cumming-Brice and Jim Yardley,“ U.N. Panel Criticizes the Vatican Over Sexual Abuse”, New York Times, 5 February 2014.
  66. “Holy See’s Comments to Observations From UN Committee on Rights of the Child”, Zenit, 26 September 2014.

 

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An 11th-Century Scandal


An 11th-Century Scandal

Mark Twain said that history does not repeat itself, but it rhymes. The sexual abuse scandal that continues to echo throughout the church in America, as evidenced by the recent controversy over the decision to allow Cardinal Bernard Law to preside at one of the memorial Masses for Pope John Paul II in Rome after his death on April 2, bears a striking resemblance to a series of crises that roiled the church in the Middle Ages, particularly in the 11th century. Then, as now, the higher clergy seemed to be completely unaware of the damage that scandalous sexual behavior was causing to both the victims and the community as a whole.

Problems in the 11th century were much more widespread than in our own. Priests and bishops were unaccountable to secular law, and abusive behavior extended beyond children to include adults. Many had concubines, or live-in prostitutes, who were completely at the mercy of their clerical patrons. Some bishops used their authority over the clergy to compel priests into acts of sodomy, as well.

Cardinal Peter Damian

Cardinal Peter Damian

But one cardinal, Peter Damian, was willing to address the abuse publicly, and he legitimated initiatives on the part of the laity to punish clerical offenders. Much of Damian’s analysis of the root causes of sexual abuse by members of the clergy is applicable to our own situation.

Peter Damian (1007-72), later canonized and declared a doctor of the church, learned about the destructive power of evil early in his life. Because his mother thought her family could not support another child, she refused to feed him as an infant. Only the intervention of the concubine of the local priest saved the baby’s life.

As a child in Ravenna, Italy, Peter Damian lost both of his parents. His medieval biographer claimed that he spent time with an abusive older brother before another brother, who was archpriest of Ravenna, took him in and saw to his education. In the diocesan cathedral school he attended, Damian became increasingly scandalized by the behavior of both students and professors. Rather than pursue a lucrative career as a professor and cleric, he chose to enter monastic life and devoted himself to the work of reforming the church. His accomplishments eventually included the creation of the process for electing popes.

Complaints from Damian about the church’s unwillingness to confront the sexual behavior of the clergy, however, met with inaction. In 1049 Damian wrote to Pope Leo IX (1048-54) about the cancer of sexual abuse that was spreading through the church: boys and adolescents were being forced and seduced into performing acts of sodomy by priests and bishops; there were problems with sexual harassment among higher clergy; and many members of the clergy were keeping concubines.

Peter Damian warned the pope that bishops were contributing to the growth of the problem by their failure to enforce church discipline. Members of the clergy who sexually abused others demonstrated by their actions that they had no fear of God, Damian argued. Such men were afraid only of being despised by the people and of losing their positions; they would do anything to avoid being stripped of their clerical status and identity. Knowing that their bishop would not remove them from their office and ministry gave such men license to continue in their wickedness. Thus in failing to discipline abusive members of the clergy, the bishops stood as guilty as the men who committed the crimes.

Convinced that it was the lack of episcopal leadership that was causing the sexual abuse scandal in his day, Damian offered this admonition:

“Listen, you do-nothing superiors of clerics and priests. Listen, and even though you feel sure of yourselves, tremble at the thought that you are partners in the guilt of others; those, I mean, who wink at the sins of their subjects that need correction and who by ill-considered silence allow them license to sin. Listen, I say, and be shrewd enough to understand that all of you alike are deserving of death, that is, not only those who do such things, but also they who approve those who practice them (Rom 1:32).”

Drawing on the model that the bishop or priest is married to the church, Damian accused both those who sexually abused the people under their care and those who allowed such abuse to take place with the crime of spiritual incest. But whereas biological parents who committed incest were subject in the Middle Ages to excommunication and exile, Damian felt that bishops who betrayed their spiritual children deserved a harsher penalty. Their betrayal ran deeper.

Pope Leo IX

Pope Leo IX

Unfortunately, Pope Leo IX disagreed with Peter Damian’s analysis of the problem of clerical sexual abuse. He was willing to punish clerics who committed acts of anal intercourse with boys and adolescents, but he minimized the punishment of clerics who performed other sexual acts with children and adults of both sexes.

Shortly after the election of Pope Nicholas II (1058-61), Damian called attention to the issue again. His complaint to the new pope has a modern sound: Indeed, in our day the genuine custom of the Roman Church seems to be observed in this way, that regarding other practices of ecclesiastical discipline, a proper investigation is held; but a prudent silence is maintained concerning clerical sexuality for fear of insults from the laity. Damian urged the pope to bring the issue out into the open and to punish both the sexual offenders and the bishops who failed in their duty to punish and to depose sexual predators. He complained that occasionally priests were disciplined, but with bishops we pay our reverence with silent tolerance, which is totally absurd.

According to Damian, punishing those who hold positions of authority and oversight is the only way to restore credibility in times of scandal. Damian recounted the story of the Old Testament priest Phinehas. Finding one of the most prominent Israelite chiefs having sex with a Midianite prostitute, Phinehas exposed the pair to the people as they were having sex and skewered them with a spear. By this action Phinehas imitated God’s justice and sent the message that the laws would be enforced.

Damian notes that most of the Israelite men around Phinehas were consorting with prostitutes. Yet Phinehas struck down only the most powerful and socially prominent offenders. The conclusion to be drawn is that the powerful should be held to a higher standard. Thus in Nm 25:4, when Eli failed to punish his son, God struck him down. His inaction brought the priesthood into disrepute. Likewise, Damian asserted, when the magisterial hierarchy fails to enforce discipline, they undermine the legitimacy of the ecclesiastical office.

Eli was stripped of his power, privileges and wealth. Damian believed the bishops should also lose the trappings of episcopal office. He predicted that God’s agents for stripping the bishops of the wealth and privileges they had taken for granted would be the laity. The laity had granted the clergy temporal authority and wealth; so when the clergy failed in their spiritual mission, it was the laity that had the duty to take these things back, in collaboration with reformers in the clergy and religious orders.

Women held the lowest place in the church during the 11th century, but Damian believed that they too had a duty to correct the clergy. Their inclusion by him in the process of reforming even the highest members of the clergy illustrates Damian’s view that all in the church have the duty to correct their superiors publicly when they see serious sin or deviations from tradition. Virtue and power were not determined by a person’s sex. Rather, virtue is a gift from God.

So in 1064 Damian wrote to Duchess Adelaide of Turin, urging her to use her political power to address problems related to clerical sexual abuse. Using language that may seem offensive to us, he praised God for making Adelaide as strong as a man and drew upon a host of biblical citations, including the examples of Deborah, Jael, Judith, Esther, Abigail and other women who corrected and punished weak, evil or fearful men, to justify her action in reforming the male members of the clergy. The scriptural stories proved that God sometimes chooses women to be instruments of a more glorious triumph.

At the very least, Damian’s story calls into question the practice of covering up sins as a means to avoid scandal. It also provides a road map for church leaders to recover credibility by disciplining the bishops who have enabled sexual predators to damage the most vulnerable members of the people of God. And if the magisterial hierarchy proves unable to reform itself on these matters, St. Peter Damian offers a Catholic model of collaborative reform that includes the laity, religious, deacons and priests. Most important, his story shows that we have overcome sexual abuse scandals in the past by upholding faithfulness to our tradition and maintaining vigilance against corruption.

C. Colt Anderson is assistant professor of church history at the University of St. Mary of the Lake, Mundelein, Ill.

 

Vatican laments Irish dissent, silences priests


from the link: http://ncronline.org/news/global/vatican-laments-irish-dissent-silences-priests

Vatican laments Irish dissent, silences priests

Apr. 26, 2012

By Michael Kelly

DUBLIN, IRELAND — Just weeks after a report from a Vatican inquiry into the Irish church lamented what it described as “fairly widespread” dissent from church teaching, it was revealed that the Vatican has “silenced” Redemptorist Fr. Tony Flannery.

The Holy See’s move provoked fury among the members of the 800-strong Association of Catholic Priests, which has accused the Vatican of issuing a fatwa against liberal clerics.

It’s not exactly clear why Flannery, a popular author and retreat director, has come under Vatican suspicion. He has voiced support in the past for opening up debates around the ordination of women, a change to the church’s ban on artificial birth control and an end to mandatory celibacy. He also provoked dismay among senior Irish bishops when he publicly backed Prime Minister Enda Kenny’s 2011 attack on the Vatican in the wake of the report into the mishandling of clerical abuse in the Cloyne diocese. Kenny accused the Vatican of “dysfunction,” “disconnection,” “elitism” and “narcissism.” Flannery described the speech as “wonderful.”

By acting against Flannery now, the Congregation for the Doctrine of the Faith may well have scored an own goal by provoking the ire of the priests’ association. As well as his retreat work, Flannery is a founder of the association, which now represents some 20 percent of Ireland’s clergy. Since its founding less than two years ago, the group has campaigned for liberal reforms in the church and is due to hold a national assembly in early May to harness momentum. Key priorities for the group include “a re-evaluation of Catholic sexual teaching” and “a redesigning of ministry in the Church, in order to incorporate the gifts, wisdom and expertise of the entire faith community, male and female.”

Flannery is the latest Irish priest to face Vatican censure. In mid-April, it was revealed that moral theologian Fr. Seán Fagan had been silenced by the Vatican two years ago. His Marist order even took the bizarre step of buying up unsold copies of his 2008 book What Happened to Sin?.

Capuchin Fr. Owen O’Sullivan also fell foul of the doctrinal congregation in late 2010 after he published an article suggesting that homosexuality is “simply a facet of the human condition.”

More of the same is likely to be in the cards given some of the findings of the apostolic visitation, published on March 19. The summary of the document — oddly, only four of Ireland’s 27 serving bishops have seen the full report — warned that “dissent from the fundamental teachings of the Church is not the authentic path towards renewal.”

The tendency “among priests, religious, and laity, to hold theological opinions at variance with the teachings of the Magisterium” required, the visitation concluded, “particular attention directed principally towards improved theological formation.”

A war of words has now broken out — of sorts, since no one of the Vatican side of the argument is speaking at all. Renowned ecologist Fr. Seán McDonagh, a member of the priests’ association’s leadership team, accused the Holy See of “outrageous” behavior in silencing of the clerics.

He accused the Vatican of “throwing a fatwa” at the priests and said that some of Rome’s recent actions were like a return to the Inquisition.

“This isn’t the time for heresy-hunting,” he warned.

The association has rallied behind Flannery, insisting, “This intervention is unfair, unwarranted and unwise.”

The association has also resisted attempts to cast it simply as a liberal pressure group. “The issues surfaced by the ACP since its foundation less than two years ago and by Tony Flannery as part of the leadership team are not an attack on or a rejection of the fundamental teachings of the Church. Rather they are an important reflection by an association of over 800 Irish priests — who have given long service to the Catholic Church in Ireland — on issues surfacing in parishes all over the country,” the group said in a statement.

A recent survey commissioned by the association seems to demonstrate that the priests are not the Irish church’s only restive members. While weekly Mass attendance is still relatively high, three out of four people who identify themselves as Catholic say they find the church’s teaching on sexuality “irrelevant.”

The survey — conducted by the respected research association Amarach — also showed that almost 90 percent of those surveyed believe that divorced or separated Catholics in a stable second relationship ought to be able to receive Communion at Mass.

The figures were compiled from a sample of 1,000 Catholics and, according to researchers, have a margin of error of plus or minus 3 percentage points.

According to the results, 35 percent of those surveyed attend Mass at least once a week; 51 percent attend at least once a month. Just 5 percent of Irish people who identify themselves as Catholics never attend Mass.

Eighty-seven percent disagreed with church teaching on an unmarried priesthood and said they believed that the church ought to allow priests to get married, while 77 percent said the church should admit women to the priesthood.

When asked “to what extent do you agree with the Catholic church’s teaching that any sexual expression of love between a gay couple is immoral,” 61 percent said they disagreed while 18 percent of those surveyed believed homosexual acts to be immoral.

Seeming to set himself on a collision course with the Vatican, McDonagh said the survey “confirms that those who are advocating for change in the church are not a tiny minority, but are, in fact, at the heart of the church.”

He said Irish Catholics are “crying out for change and do not want the church to go backward, but to move forward and change.”

A spokesman for the Irish bishops’ conference, pointedly not commenting directly on the findings, said, “The results of this survey confirm the importance of all in the church taking up this task in a spirit of communion and sharing the good news of the Gospel in a rapidly changing social and cultural environment in Ireland today.”

The Vatican seems to be drawing a clear line in the sand. From Rome’s point of view, whatever the future shape of Irish Catholicism will be, it must be a future marked by greater adherence to church teaching. The Association of Catholic Priests strikes a decidedly different note. This Vatican approach, it warns, “may have the unintended effect of exacerbating a growing perception of a significant ‘disconnect’ between the Irish church and Rome.”

[Michael Kelly is deputy editor of The Irish Catholic, an independent, lay-owned weekly newspaper.]