Two Lawsuits Name the Vatican. Perhaps Justice At Last.

By Betty Clermont
Open Tabernacle
December 16, 2018

https://opentabernacle.wordpress.com/2018/12/16/two-lawsuits-name-the-vatican-perhaps-justice-at-last/

In October, two sexual abuse survivors sued the Vatican in the U.S. District Court in San Francisco for failing to prevent and covering up the abuse of them and other children by priests.

In November, a class-action lawsuit on behalf of six sexual assault victims was filed in the U.S. District Court in Washington, D.C. The lawsuit accuses the U.S. Conference of Catholic Bishops (USCCB) and the Vatican of “endemic, systemic, rampant, and pervasive rape and sexual abuse” of the plaintiffs and others by members of the clergy, religious orders, and other Church representatives.

The Foreign Sovereign Immunities Act (FSIA) establishes the limitations as to whether a foreign sovereign nation (or its political subdivisions, agencies, or instrumentalities) may be sued in U.S. courts. Under that law, a foreign state shall be liable for personal injury or death occurring in the United States and caused by the foreign state or any official or employee of that foreign state while acting within the scope of his office or employment. (I am not a lawyer, so I hope anyone wanting exact information will click on these links for the specifics.)

Until now, the Vatican prevailed in three * lawsuits by asserting that its bishops and clergy are not “officials or employees acting within the scope of his office or employment.” Pope Francis’ recent action, however, may open the door to success for survivors of clerical sex abuse.

Who Is Responsible?

The October lawsuit “contends the Vatican is responsible for abuse by priests and concealment of misconduct because it directly and definitively controls the standards, morals, and obligations of the clergy of the Catholic Church worldwide …. Every evidentiary road of concealment leads to Rome,” said attorney Jeff Anderson.

This lawsuit also “accuses the Holy See [the juridical name of the government of the worldwide Church] of violating customary international human rights law, including the Universal Declaration of Human Rights and the Convention on the Rights of the Child. It asks for an injunction requiring the Holy See to stop concealing reports of priestly misconduct, as well as a court order requiring the Vatican to release the names of perpetrators and documents in 3,400 credible cases of childhood sexual abuse worldwide that are, according to the lawsuit, currently known to the Holy See.”

According to the Church’s own statistics, out of the 3,400 credible reports the Vatican received from 2004 to 2014, “only about 850 priests were defrocked in that period of time for raping or molesting children. The rest were told to repent and ask forgiveness.” They were assigned to “a life of prayer and penance” that “allows them to die with a noble title – a reverend, a father, a retired priest.”

The November lawsuit filed in D.C. states the USCCB and the Holy See “protect(ed) the abusive clergy” by moving them “from parish to parish” to conceal “their wrongful conduct.” Abusive clergy have even been promoted within the religious ranks, the court document alleges. As a result, victims have been cheated and defrauded “out of their childhood, youth, innocence, virginity, families, jobs, finances, assets – in short, their lives.”

Bottom line, the USCCB and the Holy See “allowed” and “facilitated” the abuse, attorney Richard Coffman said.  The lawsuit “notes that the Holy See has successfully avoided liability in the United States by claiming it did not have direct authority over priests.” But Coffman stated, “I believe the time is right, something needs to be done about this problem.”

Coffman may be right. Similar lawsuits filed in the past elicited comments by Church officials which have now been controverted by Pope Francis.

John Doe 16 v. Holy See, filed in 2010, asserted that the Vatican and Pope Benedict XVI failed to take action when told that a priest at St. John’s School for the Deaf in Wisconsin had sexually abused students. The case was dismissed.

Milwaukee Archbishop Jerome E. Listecki called the outcome of the case a “reminder of the relationship of the Holy See to the dioceses. The Holy See offers the direction we should go” but leaves administrative decisions up to local bishops, Listecki said.

O’Bryan v. Holy See, filed in 2004, “asserted that the bishops are ‘employees’ or ‘agents’ of the Vatican, and hence the Vatican is liable for their negligent supervision of abuser priests.” The lawsuit was dropped for lack of funds.

In that case, the counsel for the Holy See had “filed two lengthy memoranda … forcefully defending the autonomy of the local bishop. To assert that bishops are no more than Vatican employees is ‘contrary to basic principles underlying the structure of the Church,’” he said.

At their recent Nov. 12-14 meeting, the USCCB had planned to adopt reforms addressing the sex abuse crisis. But Pope Francis forbade the bishops to take action. The reason given was that he had already called for a Vatican meeting of bishops from around the world in February on the same issue.

“If that’s not command responsibility, I don’t know what is,” said Mitchell A. Toups, one of the lead attorneys in the class-action case just filed in Washington D.C.

Archbishop Charles J. Scicluna of Malta and Cardinal Blase J. Cupich of Chicago were appointed by Pope Francis to be part of the organizing committee for the Vatican’s Feb. 21-24 meeting of bishops to address clerical sexual abuse. When asked what should be expected from this meeting, Scicluna replied, “There is a jurisdiction of the Holy Father over each and every one of us bishops that we have to respect when we talk of accountability within the context of the Roman Catholic Church.” Cupich said the meeting’s organizing committee is “committed to achieving specific outcomes from this meeting that reflect the mind of Pope Francis” (emphasis mine).

Sovereign or State Immunity

“Sovereign immunity, or state immunity, is a principle of customary international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent. Put in another way, a sovereign state is exempt from the jurisdiction of foreign national courts.”

“These same immunities generally extend to the official diplomats and official senior state representatives as well.”

On Nov. 28, “dozens of local and federal law enforcement officers conducted a surprise search of the offices of the Roman Catholic Archdiocese of Galveston-Houston looking for evidence in a clergy sexual abuse case.” The assistant district attorney in charge of the investigation, J. Tyler Dunman, said that a search of the Church offices was necessary because the archdiocese had turned over only a portion of the evidence. “What we’ve been provided is nowhere near what we expected to find,” said Dunman.

The prosecutor Brett Ligon said that his search for records could extend beyond archdiocesan archives. “If it’s at the Vatican, I’ll be heading to Rome.”

That may be necessary. In a 1990 speech, Cleveland Bishop A. James Quinn told Church lawyers that, although destroying subpoenaed documents was illegal, “prior . . . thought and study ought to be given if you think it’s going to be necessary; if there’s something [in a personnel file] you really don’t want people to see, you might send it off to the Apostolic Delegate [the papal ambassador to the U.S. in Washington D.C.] because they have immunity to protect something that is potentially dangerous.”  [See PDF page 31 of Bishop Quinn’s speech.]

Pope Francis Used Sovereign Immunity to Protect His Men.

Archbishop (now Cardinal) Luis Ladaria Ferer was accused of covering up a child sex abuse scandal by a French court on April 4, 2018. Ladaria was elevated to cardinal by Pope Francis the next month and then promoted by the pope to head the Congregation for the Doctrine of the Faith (CDF), the Vatican department that decides clerical sex abuse cases.

French Cardinal Philippe Barbarin had sought advice about the case of Fr. Bernard Preynat, accused of being a serial sex abuse predator, from Ladaria in 2015 when he was the No. 2 official in the CDF. Ladaria advised Barbarin to keep it a secret and “avoid any public scandal.”

In October, the Vatican said Ladaria had immunity from a French court claiming the cardinal had written to Barbarin in his capacity as a minister of state “exercising his sovereign role.” 

Far worse, in July 2017, Ladaria was accused of covering up for Fr. Gianni Trotta. The CDF received complaints against Trotta in 2009 and took three years to find him guilty of child sex abuse in 2012. Trotta was removed from the priesthood but the CDF did not contact the civil authorities. In fact, Ladaria wrote to Trotta’s bishop in 2012 instructing him not to divulge the reasons why Trotta had been laicized “so as to avoid scandal.”

Trotta continued to dress as a priest and became the coach of a youth soccer team.

Already convicted of sexual violence against an 11-year-old and sentenced to eight years in prison by a civil court, Trotta is now standing trial for nine other alleged cases of sex abuse against boys that occurred in 2014. “Trotta allegedly raped five, abused others in his home individually or in groups, photographing them during sexual acts.”

“If Ladaria had informed the police, these children would have been safe,” journalist and Vatican expert Emiliano Fittipaldi noted.

In September 2017, Msgr. Carlo Capella, “a high-ranking priest working in the Vatican’s embassy in Washington was recalled to the Vatican after U.S. prosecutors asked for him to be charged and face trial in a child pornography investigation …. The State Department said it had asked the Vatican to lift the official’s diplomatic immunity on Aug. 21, and said the request was denied three days later. For the State Department to make such a request, its lawyers would have needed to be convinced that there was reasonable cause for criminal prosecution,” the AP reported.

Pope Francis had posted Msgr. Carlo Capella to Washington D.C. in 2016. “Granted, this priest is not known to be accused of directly abusing children. But if he is in possession of child pornography, as the United States alleges, he might as well be, since child pornography is almost always filmed under horrific circumstances,” noted journalist, Barbie Latza Nadeau.

Capella was “secretly swooped back to Rome” where “he won’t face any secular charges any time soon because he is safely inside the fortified walls of Vatican City,” Nadeau reported.

The next month, police in Windsor, Ontario, accused Capella of “accessing, possessing and distributing child pornography.” Robert Talach, an Ontario lawyer, said Capella should be extradited back to Canada. “If Pope Francis has been nothing but a PR exercise this will prove it,” he said.

Last June, Capella pleaded guilty to possession of child pornography at a Vatican court. He was fined $5,800 and sentenced to five years in a Vatican prison which I’m sure is preferable to a Washington D.C. or Ontario prison.  Besides, we have no assurances that anyone is making sure he serves his complete sentence.

Archbishop Josef Wesolowski, the Vatican nuncio (ambassador) to the Dominican Republic, was accused of soliciting poor street boys for sex. Pope Francis was informed in July 2013. He dismissed Wesolowski in secret from his post but left him a free man.

The archbishop was finally arrested by the Vatican in September 2014 and brought inside the Vatican City State only after “there was a serious risk that the nuncio would be arrested on Italian territory at the request of the Dominican authorities and then extradited,” reported the Italian newspaper, Corriere della Sera. The archbishop was found with more than 100,000 computer files of child pornography, a “key ingredient” in sex trafficking.

Wesolowski died mysteriously while he was under house arrest in the Vatican on the eve of his trial which would have brought unwanted publicity.

Any Chance of Success?

Will the two lawsuits just filed against the Vatican be successful? We’ll see. However, if they can generate enough negative publicity by calling attention to the direct involvement of Pope Francis and his government in thwarting justice for the victims of child sex abuse, the pontiff may be forced into taking effective action to protect our children. That also might be a victory.

* There are five lawsuits Americans have brought against the Holy See. None have succeeded.

John V. Doe v. Holy See lawsuit was filed in federal court in Oregon in 2002. “The threshold question of law in the case is whether the Foreign Sovereign Immunities Act allows the Holy See, a sovereign state in international law, to be sued for acts of American Catholic clergy.”

Judge Michael W. Mosman dismissed the lawsuit in 2012. Mosman “decided that under the Foreign Sovereign Immunities Act (FSIA) there was insufficient evidence to decide that the Vatican has both directional and operational control over priests in the United States,” according to the attorney for the plaintiff, Jeff Anderson.

O’Bryan v. Holy See, filed in 2004, “focused on Rome’s relationship with local bishops. It asserted that the bishops are ‘employees’ or ‘agents’ of the Vatican, and hence the Vatican is liable for their negligent supervision of abuser priests …. Since it’s generally considered easier to connect the dots between Rome and the decisions of a diocesan bishop, as opposed to Rome and the behavior of an ordinary priest, many analysts felt the O’Bryan case posed a significant legal challenge to the Vatican,” noted the experienced reporter, John L. Allen Jr.

However, attorney William McMurry said he couldn’t “offset the costs of litigation, even if the lawsuit had prevailed. And so the lawsuit was dropped,” reported Allen.

John Doe 16 v. Holy See, filed in 2010, asserted that the Vatican and Pope Benedict XVI failed to take action when told that a priest at St. John’s School for the Deaf in Wisconsin had sexually abused students.

“The defendant, the Holy See, has known about the widespread problem of childhood sexual abuse committed by its clergy for centuries, but has covered up that abuse and thereby perpetuated the abuse,” the suit said. Pope Benedict XVI was named as a defendant because he had the ultimate authority to remove priests when he was head of the Congregation for the Doctrine of the Faith, the Vatican department that decides clerical sex abuse cases.

“Lawyers for the plaintiff in John Doe 16 v. Holy See filed a notice of voluntary dismissal Feb. 10, 2012, bringing the case effectively to an end” as explained here.

Alperin v. the Vatican Bank as an unsuccessful class action suit by Holocaust survivors brought against the Vatican Bank (“Institute for the Works of Religion” or “IOR”) filed in San Francisco on November 15, 1999. Part of the complaint against the IOR was dismissed in 2007 on the basis of sovereign immunity.

The remainder of the claim was dismissed on the ground that the gold looted from the plaintiffs by the Croatian Ustase and deposited in the IOR took place outside the U.S., a decision confirmed in February 2010 by the Court of Appeals for the Ninth Circuit.

In Dale v. Holy See a.k.a.Vatican City State, five state insurance commissioners brought a RICO (Racketeer Influenced and Corrupt Organization) suit against the Holy See for “civil conspiracy, common law fraud, and aiding and abetting fraud.”  As guarantors, the commissioners had been forced to use 200 million tax-payer dollars to pay creditors, policyholders and shareholders for their losses suffered due to “a conspiracy to fraudulently acquire and loot the insurance companies.” The Vatican moved for dismissal based, in part, on its claim of immunity under FSIA.

According to the RICO suit, two lawyers, three priests, two monsignors, one bishop, one archbishop and four cardinals – in fact every single Vatican employee or person with close ties to the Vatican approached to participate in the fraud – were willing to act without hesitation or moral reservation.

Eventually, the commissioners moved on to other positions and their successors lost interest in continuing the lawsuit.