When Judges Impersonate Theologians, by Sandro Magister, The Chiesa, July 6, 2010

When Judges Impersonate Theologians

By Sandro Magister
The Chiesa
July 6, 2010

http://chiesa.espresso.repubblica.it/articolo/1343973?eng=y

In Belgium they searched the tombs of the bishops, in the United States they're summoning the pope for trial. A transformation of legal culture and court practice is on the horizon. The analysis of Professor Pietro De Marco

ROME, July 6, 2010 – Here at the beginning of summer, a new actor has made a sensational appearance in the drama of pedophilia: the judge.

On June 24, in Belgium, police officers acting on the orders of the judiciary searched persons and places central to the Church of that country: the archbishopric of Mechelen-Brussels, while the bishops were meeting there, the residence of Cardinal Godfried Danneels, and the offices of the independent commission created by the Belgian Church to investigate sexual abuse. There the investigators confiscated 475 dossiers, many of them on victims who had gone to the commission instead of to the civil courts in order to safeguard their private lives.

Moreover, that same day, in the cathedral of Saint Rumbold in Mechelen, the tombs of cardinals Desiré-Félicien Mercier, Jozef-Ernest Van Roey, and Léon-Joseph Suenens were broken open in a fruitless search for presumed proof of the Belgian Church's complicity in abuse.

On June 29, in the United States, the supreme court refused to examine the Holy See's request to dismiss charges against the highest Vatican authorities as part of a lawsuit in Oregon over sexual abuse committed by a religious.

The Holy See's request had been supported by the Obama administration. In 2005 as well, during the Bush presidency, the American state department had said it was illegitimate to name Benedict XVI in an abuse lawsuit in Texas, by virtue of the immunity of every head of state, and therefore of the pope as well. And that time, the judge ruled in favor of the administration.

But the supreme court has decided not to consider the question, as it does with the great majority of the 7-8 thousand appeals that it receives every year, examining no more than 60-70 of them.

As a result, the supreme court has left the judgment to a lower court, in this case the federal appeals court of Oregon. Theoretically, therefore, this court could approve the naming as defendants of Pope Benedict XVI, of his secretary of state Cardinal Tarcisio Bertone, of prefect for the congregation of the faith Cardinal William Levada, and of the apostolic nuncio in the United States, Archbishop Pietro Sambi. This would become possible if the Oregon court were to establish that the religious who committed the abuse, who died in 1992, was an "employee of the Holy See."

A similar suit against the highest authorities of the Church is underway in Kentucky, and another was opened a few days ago in Los Angeles.

It is unlikely that the pope will actually be brought to stand trial for the crimes of one of his "employees." But that sooner or later a court should presume to establish according to its own criteria what the Church is and what relationship the hierarchy has with its "employees" is no longer a hypothesis to be ruled out automatically.

The searches ordered by the Belgian judiciary – called "brutal" by no less than the country's justice minister, Stefaan De Clerck – are not at all reassuring. There the Church has been considered on a par with a gang of criminals.

Not only in Belgium and the United States, but a little bit everywhere, there is a growing tendency to judge the nature and organization of the Church while ignoring what it is and its unique original organizing principles, which nonetheless have entered into the best legal culture and have been recognized by internationally valid pacts.

So the hope repeatedly expressed by Church authorities, that the civil and canonical forums should work each in its own sphere to combat sexual abuse by the clergy, does not always translate into peaceful and productive cooperation.

The Church, for some time and above all thanks to the impulse of Joseph Ratzinger as cardinal and pope, has been doing much to correct its own faults and omissions. But civil justice must also do better. Its performance on the field over the past decades has often been disappointing. But if it were to prevaricate today, assuming competencies and roles that do not belong to it and acting accordingly, it would do worse.

The following is an in-depth analysis of the open question of the Belgian and American cases. The author, Professor Pietro De Marco, teaches at the University of Florence and at the Theological Faculty of Central Italy.