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Pope Benedict could face court over sex crimes in the church

Not a day goes by without further allegations of rape and sexual abuse being made against the Catholic Church. The vast majority of accusations relate to abuse perpetrated outside the Vatican’s walls…

Pope Benedict XVI open to prosecution after he steps down? EPA/Claudio Peri

Not a day goes by without further allegations of rape and sexual abuse being made against the Catholic Church. The vast majority of accusations relate to abuse perpetrated outside the Vatican’s walls, in dioceses around the world. Evidence suggests, however, that high ranking members of the Church’s hierarchy were well aware of these despicable acts and actively shielded the perpetrators from criminal investigations. This has led to repeated calls for Benedict XVI to be held personally accountable for the grave harm inflicted on innumerable children.

To date, attempts to prosecute Benedict have been stymied by his immunity as the Head of State of the Vatican City. His resignation, however, changes the game and opens up the possibility that warrants will now be issued for his arrest.

Prosecuting a former head of state

The status of the Holy See and the Vatican under international law is anomalous. But for all intents and purposes, the Vatican City has been equated to a sovereign state since the Lateran Treaty of 1929, with the Pope as its head. International law accords complete immunity to heads of state from the jurisdiction of other states while they are in office. They retain this immunity with respect to acts performed in an official capacity even after leaving office.

In 2008, Benedict apologised for church sex abuse. EPA/Will Burgess

But as the extradition proceedings of Augusto Pinochet in the UK demonstrated, the immunity enjoyed by former heads of state with respect to official acts is not absolute. In particular, it does not extend to the most serious offences under international law such as genocide, crimes against humanity, war crimes and torture.

A reasonable argument can be made that abuse perpetrated within the Catholic Church amounts to crimes against humanity. In international criminal law, this offence includes rape and other forms of sexual violence when committed as part of a widespread or systematic attack against a civilian population.

Given the substantial evidence of pervasive sexual abuse within the Catholic Church across the globe, it is not difficult to see how a court could conclude that such acts are widespread and therefore fall within the definition of crimes against humanity.

Personal liability

As well as meeting the elements of this definition, a court would also have to determine exactly how Benedict himself could be held liable for such acts. There appears to be no evidence to suggest that he was personally involved in the perpetration of any acts of abuse.

However, international law has developed the doctrine of superior responsibility to address the role of persons of authority for the conduct of their subordinates. Three key elements would have to be met for Benedict to be held liable under this doctrine:

  1. He had “effective control” over the subordinates who committed the crimes
  2. He knew, or should have known, that such crimes were being committed by his subordinates
  3. He failed to take feasible measures to prevent or punish the commission of the crimes.

The first of these conditions is the most difficult to satisfy, as Church officials have been at pains to point out that Catholic priests are employees of individual dioceses. Nevertheless, Benedict had control over Church policy on sexual abuse both during his tenure as Pope and in his earlier role as head of the Congregation for the Doctrine of the Faith, the institution within the Catholic Church responsible for addressing sexual abuse and rape cases. Given his undoubted influence within the Church, this might be sufficient.

The other two elements of superior responsibility are likely to be more easily satisfied. Reports show Benedict was provided with documentary evidence about the scope and scale of the abuses within the Church, and he failed to prevent and punish the perpetrators of the crimes. To the contrary, Benedict frustrated police attempts to stamp out abuse and set Church policy that required the perpetrators to be warned, rebuked, prayed for or shifted to other parishesbut not handed over to law enforcement authorities.

As people gathered for Pope Benedict’s final address, others wondered if he’s now open to prosecution. EPA/Bernd Von Jutrczenka

The chance of a charge

In light of this prima facie legal case against the Pope, his resignation opens up the very real possibility of charges being brought against him.

But which courts would hear the case? International law recognises the authority of every state to prosecute offences that have been directed against its nationals. Accordingly, every state where sexual abuse in the Catholic Church has been uncovered during Benedict’s tenure has the power to charge him.

On top of that, many countries (including Australia) have in place legislation that enables individuals to be prosecuted for the most serious international crimes regardless of their nationality and regardless of where the crime was committed. International law permits this in view of the abhorrent nature of the offences in question.

Basic notions of fairness and the strictures of human rights law require a defendant to be present at his or her trial. With respect to Benedict, this may well prove a fatal difficulty. The territory of the Vatican is treated as the territory of a sovereign state. Thus, neither the Italian police nor the law enforcement authorities of any other state can enter the Vatican without consent of the Church authorities. Such consent is unlikely to be forthcoming.

It is equally improbable for the Vatican to agree to extradite the Pontiff Emeritus. Benedict will therefore be quite safe as long as he spends his retirement days within the confines of the Vatican. But should he wish to pay a visit to his native Germany, or even have a stroll outside the Vatican City walls, he would do well to take legal advice.

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28 Comments sorted by

  1. Sean Lamb

    Science Denier

    "His resignation, however, changes the game and opens up the possibility that warrants will now be issued for his arrest."
    I am sorry but this is just delusional.
    We can't even get warrants issued againstTony Blair , George Bush, Barrack Obama or David Cameron for waging aggressive war, so there is no way an Ex-Pope is going to be nabbed for some spurious claim of crimes of omission.

    The Conversation seems to be scraping the bottom of the barrel a bit when it comes to contributors.

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    1. David Clerke

      Teacher

      In reply to Sean Lamb

      I think you may be being unkind here Geoffrey Robertson QC of Hypothetical fame and numerous Pro Bono test cases has been campaigning for prosecution of the Pope for some years.

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    2. Sean Lamb

      Science Denier

      In reply to David Clerke

      Geofrrey Robertson is a TV buffoon and his pro bono cases have as much significance as the various tribunals Ramsay Clark has being trying Kissinger and numerous others in absentia over the years.

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    3. Stephen McCormick

      Ph.D. Candidate at School of Mathematical Sciences, Monash University

      In reply to Sean Lamb

      If it is your opinion that The Conversation is "scraping the bottom of the barrel" for its contributors, do you simply read it for the opportunity to continually to insult them?

      This section of the webpage is to discuss the issue(s) addressed in the above article, not unrelated politics and attacks on the authors.

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    4. alfred venison

      records manager (public sector)

      In reply to Sean Lamb

      ah, good old ramsey clark, i remember him well from my teenage. jean paul sartre & bertrand russell, council assisting. clark had no illusions of bringing felons to ground but due to his presence the tribunal's hearings were more widely reported in mainstream media & facts the gov't preferred to fudge were revealed in the public arena, and by using a format familiar to people at the time who could still remember nuremberg. but this one? we live in a conservative ascendancy & imo nothing like the self appointed vietnam war crimes commission would get off the ground today. instead we have the odiously unctuous tony blair senior statesman & one time middle east peace envoy (a joke if it weren't such an insult) converting to catholicsm so he can confess his sins & be forgiven them by god. -a.v.

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    5. alfred venison

      records manager (public sector)

      In reply to David Clerke

      i think he may be unkind to the author, but heh, its "the conversation". -a.v.

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    6. Michel Syna Rahme

      logged in via email @hotmail.com

      In reply to Sean Lamb

      A science denier who agrees that warrants should be issued -whether successful or not - for the Pope, Bush, Blair, Obama and Cameron..... Very interesting!

      You forgot to highlight Burlusconi.....

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    7. Jack Arnold

      Director

      In reply to David Clerke

      I agree David, see Geoffrey Robertson "The Case of the Pope" that includes evidence that Ratzinger directed the cardinals to cover up any cases of priestly pederasty to "protect the good name of the church".

      See also Newcastle Herald (NSW) coverage of numerous cases of priestly pederasty in Newcastle & Maitland dioceses where senior clergy failed to act against the perpetrators resulting in too many suicides of victims.

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    8. Jack Arnold

      Director

      In reply to Sean Lamb

      Sean ... It appears from your tag and remarks that the description of "Buffoon" is better suited to yourself than Geoffrey Robertson.

      Agreed, Kissinger, Blair, George W Bush and other imperialists using politics to benefit multinational corporations should all be held to account. But so should the bankers who provide the finance for these escapades. See the movie "The International" (Naomi Watts) for a fictionalised account of international banking that makes Mac Bank look like a kindergarten picnic.

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  2. Russell T

    IT Consultant

    'However, international law has developed the doctrine of superior responsibility to address the role of persons of authority for the conduct of their subordinates. Three key elements would have to be met for Benedict to be held liable under this doctrine:

    He had “effective control” over the subordinates who committed the crimes
    He knew, or should have known, that such crimes were being committed by his subordinates
    He failed to take feasible measures to prevent or punish the commission of the…

    Read more
    1. Russell T

      IT Consultant

      In reply to William Hughes-Games

      Well William I am glad you have a clear sense of right and wrong. I obviously don't. I see lots of grey areas that lead me to think it would be hard to prove that the pope was responsible. Then again if what I have read is accurate regarding some Bishops in Australia and elsewhere, I don't think it would be that hard to prove they had effective control, they knew, and they failed take reasonable measures. If the answer is clear at a level of in the hierarchy then that would probably be a more effective means of addressing the issue. And that is probably true world wide. In some places it seems a fair call that the cardinals were involved as well. My view is go for them first.

      My personal view is that any system that calls for celibacy in its members is bound to create monsters.

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    2. Lynne Newington
      Lynne Newington is a Friend of The Conversation.

      Researcher

      In reply to Russell T

      Whether the pope is or can be charged for crimes against humanity or not, if George Pell, by some quirk of fate, which it would be and nothing to do with the Holy Spirit as claimed, he will automaticly be exempt from being questioned by the Royal Commission.
      Just to looking into his eyes, [and others] knowing full well what is already in the public domain at least, is sickening.

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  3. Pat Moore

    gardener

    Thanks, a well informed analysis. Had to laugh at the last sentence. In mirror version it reminded me so much of the life of Giardano Bruno who had to desperately avoid the Vatican & its agents on his forced itinerant European talking tour in order to avoid the dungeon and its holocausting ("whole burnt offering") stake of sacrifce of his (pagan philosophy-informed) enlightened outlook. A time of karma for the church?

    Fancy calling the extremely qualified, skilled, talented AND principaled QC Geoffrey Robertson a "buffoon"!! Parallel universe... possibly you'll find your faulty judgement & pronouncement overruled here SL.

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    1. Sean Lamb

      Science Denier

      In reply to Pat Moore

      Considering Giardano Bruno - under the peculiar pseudonym of Henry Fagot - betrayed Throckmorton and others to first the rack and then execution by partial hanging, having his organs pulled out of body and thrust before his eyes and then being quartered, one can't help feeling as to his personal fate that what goes around, comes around.

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    2. alfred venison

      records manager (public sector)

      In reply to Sean Lamb

      if true, yes, but i thought throckmorton was sprung by walsingham, and tortured & hanged for treason he confessed to, under duress, of course. -a.v.

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    3. Pat Moore

      gardener

      In reply to Sean Lamb

      Have to correct the record there as an aside SL... Prof John Bossy who speculated that Bruno was ' Henri Fagot', the French embassy plant of Queen Elizabeth's spymaster Walsingham, has now himself retracted that theory in "Under the Molehill" to respeculate with more evidence that Fagot was Laurent Feron. And Throckmorton was an exposed Catholic plotting for the return of Mary Queen of Scots whom the "ruthless and devious" Walsingham tricked into execution by beheading, just like he had Throckmorton…

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  4. William Hughes-Games

    Garden weed puller

    The priests who bugger little boys need serious help. The cardinals who kept shifting them around to keep them ahead of the law and to allow them to continue to sodomize in new locations should face jail time. What is the culpability of the Don of the Catholic church who instructed the cardinals to protect the priests from the law.

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    1. jean wilson

      retired

      In reply to William Hughes-Games

      priests - many of them are dirty old men wearing petticoats.

      i would love to see not only the pope punished, but all the individual clergy men who have tortured children.

      why should they continue to get away with this?

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  5. alfred venison

    records manager (public sector)

    my feeling is they will find a physician who will declare him not fit to stand trial. the end. -a.v.

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    1. alfred venison

      records manager (public sector)

      In reply to alfred venison

      i forgot something. a physician will examine him & find him unfit for trial, and, after suitable outrage, a committee of medical peers, including, perhaps, even a professor, will review the physician's findings and declare he was correct. -a.v.

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    2. alfred venison

      records manager (public sector)

      In reply to alfred venison

      after all, a man too senile to run the catholic church, is, arguably, a man not un-senile enough to stand trial - non compos mentis - it matters little that he now can be subpoenaed because he's no longer head of state, if he's no longer head of state because he's too senile run the state & thus unfit for trial. -a.v.

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  6. greg fullmoon

    being and doing

    Geoffrey Robertson 'The Case of the Pope' here; http://www.amazon.com/Case-Pope-Vatican-Accountability-Rights/dp/0241953847
    More, things are afoot; http://www.youtube.com/watch?v=4sWemrZDzm8 website here; http://itccs.org/
    The criticism that offers, 'what court or authority will prosecute the Pope, Blair, Bush the 9/11 perps etc.?' is fair comment. None will as the governmental and corporate structures that the World's system operates within is corrupt.
    So the question, do nothing and let the…

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  7. Chris Booker

    Research scientist

    On the Colbert Report the other day they stated that his announcement of stepping down came the same day as a 300-page report on sexual abuse in the church landed on his desk. So far, the contents aren't public, but I bet it doesn't make good reading. Coincidence?

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  8. William Hughes-Games

    Garden weed puller

    It is unimportant whether or not the Pope is compus mentum or even if he appears at a trial. He could equally well be tried in abstensia. The point of the exercise is to put this authoritarian mafia on trial with all the harm it does. I don't know why they are even called Christians. On so many levels they follow Baal, not Christ. The first part of the exercise is to put some cardinals on trial and prove by letters, e-mails and so forth that they were instructed to protect paedophile priests at all costs. Then go after the head of the inquisition (what do they call it now?) who instructed them to do so.

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