March 31, 2010
http://www.dailymail.co.uk/news/worldnews/article-1262471/Vatican-Why-Catholic-Church-liable-sexual-abuse-cover-ups.html
UNITED STATES
# Pope has immunity as head of state
# Bishops who oversaw abusive priests were not employed by Vatican
# 1962 document does not provide proof of cover-up
The Vatican has revealed its three-point defence against an American lawsuit seeking to have the Pope deposed over claims of sexual abuse and cover-ups in the Catholic Church.
The Kentucky case is the first in the U.S. to reach the stage of determining whether victims actually have a claim against the Vatican itself for allegedly failing to alert police or the public about Roman Catholic priests who molested children.
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| The Vatican has revealed three reasons why it is not liable for sexual abuse and cover-ups in the Catholic Church |
The Holy See is set to fight back and protect the Pope by claiming that: He has immunity as a head of state; that American bishops who oversaw abusive priests weren't employees of the Vatican, and that a 1962 document is not the 'smoking gun' that provides proof of a cover-up.
The strategy was revealed in court documents filed just days after the Pope was personally implicated in a separate case involving the alleged cover-up of the abuse of 200 deaf schoolboys in Wisconsin.
The case was filed in 2004 in Kentucky by three men who claim they were abused by priests and claim negligence by the Vatican.
Their lawyer, William McMurry, is seeking class-action status for the case, saying there are thousands of victims across the country.
'This case is the only case that has been ever been filed against the Vatican which has as its sole objective to hold the Vatican accountable for all the priest sex abuse ever committed in this country,' he said.
'There is no other defendant. There's no bishop, no priest.'
The Vatican is seeking to dismiss the suit before Benedict XVI can be questioned or secret documents produced in evidence.
The preview of the legal defence was submitted last month in a U.S. District Court in Louisville.
The Vatican's strategy is to be formally filed in the coming weeks. Vatican officials declined to comment yesterday.
Complainants in the Kentucky suit argue that U.S. diocesan bishops were employees of the Holy See, and that Rome was therefore responsible for their alleged wrongdoing in failing to report abuse.
They say a 1962 Vatican document ordered that bishops should not report sex abuse cases to police.
The Vatican has argued that there is nothing in the document that precluded bishops from calling the police.
With the U.S. scandal reinvigorated by reports of abuse in Europe and scrutiny of the Pope's handling of abuse cases when he was archbishop of Munich, the Kentucky case and another in Oregon have taken on greater significance.
Lawyers as far away as Australia have said they plan to use similar strategies.
However, the hurdles remain enormously high to force a foreign government to turn over confidential documents, let alone to subject a head of state to questioning by U.S. lawyers, experts say.
The U.S. considers the Vatican a sovereign state - the two have had diplomatic relations since 1984.
In 2007, U.S. District Court Judge John Heyburn rejected an initial request by the complainants to depose Pope Benedict.
'They will not be able to depose the Pope,' said Joseph Dellapenna, a professor at Villanova University Law School and author of Suing Foreign Governments and their Corporations.
'But lower level officials could very well be deposed and there could be subpoenas for documents as part of discovery,' he said.
Mr McMurry last week filed a new court motion seeking to depose the Pope; Cardinal Tarcisio Bertone, currently Vatican secretary of state but for years the Pope's deputy at the Congregation for the Doctrine of the Faith; Cardinal William Levada, an American who currently heads the Congregation; and Archbishop Pietro Sambi, the Vatican's representative in the U.S.
On Tuesday, Mr McMurry filed a memorandum in support of his demand to depose the Pope based on documents publicly released last week detailing the role of the Congregation for the Doctrine of Faith in shutting down a canonical trial for a Wisconsin priest who allegedly molested up to 200 deaf boys.
'These documents confirm that the CDF, under Pope Benedict XVI's lead, discouraged prosecution of accused clergy and encouraged secrecy to protect the reputation of the church,' wrote Mr McMurry, who represented 243 sex abuse victims that settled with the Archdiocese of Louisville in 2003 for $25.3 million.
Jeffrey Lena, the reclusive mastermind of the Vatican's legal strategy in the U.S., is seeking to have the court rule on the Vatican's other defences before allowing the Pope to be deposed, in the hope that the suit will be dismissed.
Mr Lena noted that the U.S. Supreme Court has held that when a defendant enjoys immunity, a court shouldn't allow a 'discovery fishing expedition on claims that are baseless or speculative.'
Mr Lena also has argued that the Pope's deposition would violate the Vatican's own laws on confidentiality, and would set a bad precedent for U.S. officials.
'If Pope Benedict XVI is ordered to testify by a U.S. court, foreign courts could feel empowered to order discovery against the president of the United States regarding, for example, such issues as CIA renditions,' Mr Lena wrote in 2008.
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| Mr McMurry is also seeking to depose Cardinal Tarcisio Bertone, left, and Cardinal William Levada |
Mr McMurry is eager to find out what the Vatican knew and did, in particular, about Rev. Louis Miller, who was removed from the priesthood in 2004 by the late Pope John Paul II.
Miller pleaded guilty in 2003 to sexually abusing one of the Kentucky defendants and other children in the 1970s. He is serving a 13-year prison sentence.
In a deposition transcription, Miller said he had offered to resign as early as 1962 to his then Archbishop John Floersh, and that two subsequent archbishops knew of his crimes but continued to keep him as a priest, moving him from parish to parish.
In explaining why he wanted to resign, Miller said: 'I just knew that the crime was so horrendous in my own mind that I didn't feel that I was worthy to remain a priest.'
But he said Floersh was 'compassionate,' kept him on, and told him, 'You will always be a good priest.'
Crucial to the Kentucky lawsuit is the 1962 document Crimen Sollicitationis - Latin for crimes of solicitation.
It describes how church authorities should deal with cases of abuse of children by priests, cases where sex is solicited in the confessional - a particularly heinous crime under canon law - and cases of homosexuality and bestiality.
Mr McMurry argues that the document imposed the highest level of secrecy on such matters and reflected a Vatican policy barring bishops from reporting abuse to police.
Mr Lena declined to comment yesterday, but he has tried to shoot down Mr McMurry's theory by arguing that Mr McMurry's own expert witness, canon lawyer Thomas P. Doyle, has rejected theories that Crimen was proof of a cover-up.
The complainants, Mr Lena wrote in a 2008 motion, 'fail to offer any facts in support of their theory that Crimen caused their injuries, nor indeed any facts that Crimen was ever in the possession of the Louisville archdiocese or used in Kentucky.'
Mr McMurry insisted yesterday that Crimen is a smoking gun.
'The fact is, this document and its predecessors make it an excommunicable offence to reveal any knowledge of allegations that a priest has sexually abused,' he said.
The existence of Crimen did not become publicly known until 2003, when a lawyer noticed a reference to the document while reading a 2001 letter written by Benedict, then Cardinal Joseph Ratzinger.
Mr McMurry is seeking to produce Ratzinger's letter as evidence, which instructed all bishops to send cases of clerical sex abuse to him and to keep the proceedings secret.
In 2008, the 6th U.S. Circuit Court of Appeals gave the go-ahead for the Kentucky lawsuit to continue, ruling that an exception to sovereign immunity, which shields most foreign governments from U.S. lawsuits, should be applied.
The 6th Circuit eliminated most of the complainants' claims in its late 2008 ruling before returning it to district court.
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