Sunday, 26 September 2010

The Case of the Pope, Geoffrey Robertson

I

The clerical sex abuse scandal is the single most serious blow that the Catholic Church has suffered in living memory.  Deep within the embrace of an institution that claimed to be the moral guide of humanity, thousands of criminals and perverts raped and molested children entrusted to their care over a period of years and decades.  The numbers of young lives blighted by men who wore the priestly stole and stood in the place of Christ each day at Mass will probably never be known.  The mind staggers at the enormity of it all.

It now seems beyond doubt that the crimes of the abusive priests themselves were suppressed and facilitated by the Church.  Whatever Catholic teaching has to say about child abuse - and Catholic strictures on any form of sexual behaviour are far from liberal - it appears that bishops and priests operated within an old-boys' culture of misplaced brotherly loyalty combined with a deep-rooted aversion to opening the Church up to scrutiny from the State.

Many Catholics have tried to defend the Church's conduct.  Mental health professionals used to believe that paedophilia was curable, so it was not unreasonable to refer abusive priests for therapy.  Transferring abusers to new assignments away from the scenes of their previous offences was a tactic that the Church shared with secular school administrators.  Closing ranks and protecting erring brethren from scrutiny was by no means a priestly speciality, as many doctors would confirm.  While these are valid points, however, none of them really gets to the heart of the matter.  The Church held itself out as a divinely appointed teacher of holiness, and judging it by a lower standard represents a tacit acknowledgement of failure.  Likewise, the claim that the proportion of paedophiles in the clergy is similar to or less than that in society at large is beside the point.  The Catholic priesthood is not supposed to be a random sample of the population.  It is meant to consist of men of high integrity who are carefully examined on admission and can expect to face swift justice if they betray their calling.

In the middle of the whole sordid mess sits the Sovereign Pontiff, Benedict XVI Ratzinger.  Richard Dawkins has called him an "enemy of humanity".  Johann Hari has identified him as the leader of an "international criminal conspiracy".  The truth is duller, and perhaps sadder.  The picture of Benedict that emerges from the evidence is that of a clever and well-meaning man who was over-promoted, became a long-serving Vatican insider, and ended up placing loyalty to the Church and its priests, and a distorted idea of mercy, above Christian justice and compassion for Catholic children.  There is no doubt that he sincerely abhors crimes against children - he just hasn't done as much as he should have done to stop them, either as Pope or as the senior Vatican official with responsibility for child abuse cases from 1981 to 2005.  He has dismissed some abusers from the Church and treated others with lenience.  He has improved the processes of canon law while failing to insist that abusers be reported to the police.  To be fair to Benedict, he is not alone in all this: his attitude seems to have been depressingly common amongst the world's bishops.

Robertson, as a leading barrister and judge, aims to examine the abuse scandal from a legal perspective.  He takes the view that clerical child abuse was not merely a moral evil but a criminal offence, an actionable civil wrong (tort), and arguably also a crime against humanity under international law.  As Pope, Benedict has 'command responsibility' for the actions of his clerics, and he should not be able to hide behind the immunities that come with statehood, since (Robertson argues) the Vatican is not really a state at all.  The Church must accept its responsibilities and cease to maintain its own private legal system alongside, or in opposition to, those of the countries in which it operates.

The book has a significant number of mistakes, and it has the appearance of having been written hastily to meet a deadline.  In just two paragraphs (133 and 134), Robertson refers to someone called "Michelle Sidona" (presumably Michele Sindona), the freemasonic "P2 lodges" (there was only one P2 lodge), and the "Bank of Ambrosiano" and "Ambrosiana bank" (he means Banco Ambrosiano).  In the same paragraphs, he reports that the 1983 Code of Canon Law lifted the ban on Catholics becoming freemasons (it didn't) and suggests that John Paul I was murdered as a result of a Vatican conspiracy (he wasn't).  In more general terms, the book is distinctly tendentious.  Its author is clearly writing as Geoffrey Robertson the virtuoso courtroom performer rather than His Honour Judge Robertson the sober international jurist.  It is not so much a forensic enquiry as a set of pleadings for the prosecution.


II

The Church's parallel legal system is known as canon law.  It comes equipped with a full written legal code, courts, judges, advocates, academic commentaries and appeal procedures.  In earlier centuries, it was a powerful and important system, and it arguably had a valid role to play before the coming of the modern secular state.  Today, however, it is a glaring anachronism.  In practice, its shortcomings are rarely exposed because Church courts generally deal with mundane and private matters like marriage annulments.  When faced with offences like child abuse, however, it is highly inadequate.  It is essentially unpunitive - its most severe sanction, which is rarely imposed, is laicisation, the priestly equivalent of getting fired.  It has some dangerous idiosyncracies.  The fact that paedophilia can give rise to uncontrollable impulses has the perverse result that a priest accused of child abuse can be acquitted in a canonical trial by raising the defence that he is a paedophile.  Canonical procedures can also be slow and sclerotic, even more so than those of the secular courts.

Luckily, however, police forces and judicial systems throughout the world have the expertise and resources to deal efficiently with sex offenders.  So why have churchmen been so reluctant to co-operate with the authorities?  Indeed, why has the Pope not required them to do so?  It is difficult to think of a legitimate excuse for a bishop to withhold his knowledge of a suspected child rapist from the police.  Robertson quotes Vatican insiders as complaining that it is too hard for a spiritual father to turn in his priestly sons - an unfortunate metaphor that merely draws attention to the plight of the actual sons in the situation.  Amazingly, there has been no papal pronouncement telling bishops to go to the police other than a somewhat cryptic reference in a letter to the Irish church earlier this year and another brief reference that was placed on the Vatican website (which, lest there be any doubt, is not a recognised source of canon law) at around the same time.  According to Robertson, this failure to require bishops to contact the police is not mere negligence or oversight: it is the considered outcome of a policy debate within the Vatican.

In fact, as Robertson recognises, part of the problem is that bishops often didn't even resort to canon law, preferring instead to deal with abusers on an informal basis.  This is the mundane truth behind Crimen Sollicitationis, a Vatican instruction issued to the world's bishops in 1962 (or rather, re-issued, since a near-identical instruction had been published in 1922).  This mandated that canonical proceedings against priests accused of sexual misconduct be pursued by the local bishop in conditions of the strictest secrecy.  In theory, it did not prevent the bishop (or indeed the victim) from going to the police prior to the start of the canonical process, but it hardly encouraged this.  Crimen Sollicitationis is sometimes identified as the smoking gun that proves that the Church conspired to cover up cases of child abuse.  Robertson doesn't go this far, but he does attribute some importance to it.  In actual fact, the document, which was mostly concerned with other types of sexual behaviour, seems to have lapsed into obscurity - by the time that it was repealed by John Paul II in 2001, it is said that most serving bishops had never heard of it.  When the abuse allegations began to filter out in the 1990s and 2000s, there is little indication that many bishops followed its provisions.  Robertson probably overestimates its importance.


III

The most problematic parts of the book deal with the sovereignty of the Pope.  It is generally believed that the Papacy - through the medium of two overlapping entities, the Holy See and the Vatican City State - enjoys the privileges of statehood and sovereignty, including legal immunity.  This arrangement is undoubtedly an anachronism.  Many Catholics, as Robertson notes, believe that it is wrong both in principle (the Church has no business acting as a political power) and in practice.  There is a good case for saying that the Papacy should relinquish its statehood in an orderly fashion through agreement with the international community - but saying that its statehood does not exist is a step too far.  A state does not cease to be a state because it is small, anomalous or even pointless.  Monaco only extends four blocks from the Mediterranean Sea and serves no very useful purpose.  The tiny sliver of the Alps known as Liechtenstein was artificially created in 1719 under considerably more cynical circumstances than Vatican City.

Those circumstances, as Robertson lip-smackingly relates, were a 1929 treaty with Mussolini.  He seems to be unaware that an earlier democratic government of Italy had offered the Pope a similar deal.  The Holy See, by contrast, has existed continuously as an international actor since the Middle Ages.  Today, the Vatican has its own territory, flag, anthem, passports, coinage, postal service, security forces, car number plates, internet domain and international football team.  (Robertson, again, seems to be unaware of some of this.)  It is dependent on Italy for its material necessities, but then so is San Marino.  Its statehood is recognised by the UN, and it maintains diplomatic relations with most of the nations of the world.  Now, all or none of this may be right in a moral sense, but it is nonetheless the established and recognised status quo.

Robertson's case, which relies on what is known as the declarative theory of statehood, is somewhat unreal and looks suspiciously like special pleading - it is not so much legal as legalistic.  Robertson himself acknowledges that experts on international law are divided on the issue.  His strongest argument is that a treaty signed by a group of American nations in 1933 provides that a state must have a permanent population (the Vatican does in a sense, albeit a very small one).  But if Robertson is seriously advocating that the Italian army should move in and re-occupy St Peter's, he is going to need stronger grounds than this.

None of this, of course, excuses Vatican inertia over clerical abusers.  Indeed, the Vatican's statehood serves to place greater obligations upon it in this regard: as Robertson notes, it has signed the UN Convention on the Rights of the Child and is legally bound to observe its terms.  Nor does sovereign immunity provide complete protection against legal action, either before the International Criminal Court or before domestic tribunals.


IV

The causes of the abuse scandal remain a matter of speculation.  As Robertson recognises, many abusive priests were not clinically diagnosable paedophiles.  Clerical celibacy must have had something to do with the problem, though everyone agrees that the overwhelming majority of celibate priests have never molested children (albeit figures quoted by Robertson suggest that quite a few have girlfriends or even wives).  The loneliness of the life of the parish priest may be another contributing factor: it seems that priests in parish work were considerably more likely to commit offences than priests within fraternal religious orders.

Robertson reports that the Church's first child sex abuse scandal took place in 153 AD.  The present scandal, however, is situated in a specific historical context.  The numbers of abusive priests seem to have risen considerably after the middle of the last century, and peaked about a generation ago.  This is consistent both with the evidence of Fr Gerald Fitzgerald (d.1969), who ran a religious order that dealt with 'problem' priests, and with the academic analysis of the John Jay Report in the United States, which found that cases of abuse climbed between the 1950s and the 1970s before falling back again by the 1990s, at which point the first wave of retrospective revelations began to sweep in.  It is also notable that Crimen Sollicitationis and its 1922 predecessor were principally concerned with priests who chatted up adult women during confession: they mention child abuse only in passing rather than as a widespread contemporary problem.

It appears that clerical child abuse, while certainly an ever-present danger requiring vigilance, was a problem associated with a specific moment in history.  It seems to have been limited in the old days, when the Church was fiercely traditionalist and secular society was generally conservative.  Likewise, it had diminished by the 1990s, by which time secular society was generally liberal and the Church had reformed itself in important ways.  It was the transition between the two cultures, it seems, that lifted the lid off Pandora's box.


V

This is an interesting, if somewhat flawed, little book.  It is not too long, and it provides interested readers with an overview of the abuse scandal and the legal issues raised by it.  It has the jurisprudential substance that one would expect from a lawyer of Robertson's stature - though, as mentioned, we are dealing here with Robertson the prosecuting counsel rather than Robertson the impartial judge.  All in all, I would be inclined to recommend it.


Additional note

In May 2011, the John Jay College of Criminal Justice (referred to above) released its final report on the clerical abuse crisis in the US.

The report did not identify a single cause of clerical abuse.  Abusive priests, like sex offenders in general, were a heterogenous group.  They did not differ statistically from other priests in their psychological and personality characteristics or developmental histories, save that they were more likely to have been abused themselves.  Only a small minority (less than 5%) were clinically diagnosable paedophiles.  Most of the rest had also been sexually active with adult partners.

The report showed that incidence of abuse climbed from the mid-1960s to the late 1970s before declining sharply by the mid-1980s.  It noted that this coincided with social and cultural changes in society at large.  Abusers who were ordained in the 30s, 40s and 50s generally did not abuse before the 60s and 70s, while those ordained in the 60s and 70s began abusing more quickly.

The report also discredits a myth put about by conservative Catholics: that the paedophile problem was a gay problem.  Priests who described themselves as homosexual or who had had homosexual experiences before or during seminary were not significantly more likely to abuse children.  The fact that most victims of abuse were boys appears to have been a result of the greater availability of access that priests have historically had to boys.