Analysis: Are legal reforms in the Vatican designed NOT to work?

Catholic Herald [London, England]

February 28, 2021

By Christopher Altieri

A Vatican City criminal court heard two days of frequently gruesome testimony last week, in the trial of two clerics: 28-year-old Fr. Gabriele Martinelli and 71-year-old Fr. Enrico Radice. Martinelli, a former student at the St. Pius X minor seminary in the Vatican, is charged with sexual abuse of a junior boy when Martinelli was a senior pupil at the school. Radice is charged with enabling Martinelli – allegedly one of Radice’s favorites – and covering for him.

The criminal trial will turn on questions of fact, and possibly on questions of law: Can prosecutors prove to judges that Martinelli did the things he is alleged to have done, and did Fr. Radice enable the abusive behavior and/or cover for the abuser? If the court finds that Martinelli did the things, were the things he did crimes at Vatican City law when he did them?

It’s crazy to think that an abuser might skate on a technicality, but Martinelli wasn’t a cleric at the time he is alleged to have abused the student – identified by his initials, L.G. – and these guys can be quite rigorously precise in the application of the law when they have a mind for it.

The big picture

More broadly, the testimony on Wednesday and Thursday painted a picture of deep dysfunction and cultural rot within the St. Pius X minor seminary. It is a picture of men in leadership positions, who frequently appeared ready to go to significant lengths not to see the rot, and anxious not to be responsible for what they could not fail to see.

Just two specific examples are the apparent confusion regarding who was responsible for the place, which is maintained and managed by the Diocese of Como through its Don Folci association. According to testimony last week, it took a direct appeal to the Cardinal Secretary of State to clarify the question. Cardinal Parolin decided the seminary was Como’s problem, even though it is inside the Vatican and serves among other things St. Peter’s Basilica.

Keep in mind: the Holy See has fought tooth-and-nail to make sure that every laundry list and pizza order receipt that travels between a Vatican embassy (nunciature) and the Secretariat of State in the Vatican, is protected by the diplomatic immunity that is an extension of the Holy See’s rights as a sovereign actor. When there’s trouble literally inside the house, the answer is: Not our monkeys, not our circus.

The devil in the details

The former archpriest of St. Peter’s Basilica, Cardinal Angelo Comastri, also came under the lights last week, in connection with the alleged abuse and rot in the minor seminary: What did he know, when did he know it, and what did he do about it?

Cardinal Comastri admitted years ago to ordering the seminary to conduct two internal investigations. How Comastri could order such action – even as coverup – and also not be in charge of the place, is not immediately apparent. Then again, we are dealing with men for whom 2+2 may come to 5 on any given day.

In any case, neither of Cardinal Comastri’s investigations found anything amiss.

Cardinal Comastri eventually also asked then-Bishop of Como, Diego Coletti, to investigate. According to the version of things that Comastri gave to Italy’s ANSA news agency in 2017, Coletti took about six months to prepare a four-page report that also found nothing to substantiate the allegations. Comastri told ANSA that Coletti “proposed that the case be archived,” but also insisted that he didn’t take that advice. Instead, Comastri said he ordered one boy dismissed from the seminary and returned to Como. Comastri also saw to the replacement of senior seminary staff: “In order to be even more tranquil,” Comastri told ANSA in 2017, “so that there would be fresh air.”

Vatican City prosecutors may want to take a look at Comastri, but it remains to be seen whether they can apply recent changes to the Vatican’s criminal law in order to prosecute any failures they discover. Even if prosecutors can establish the facts of the matter – and that is a big if – will they be able to convince judges that the facts were criminal at the time they transpired?

Prosecutors the world, over, are concerned with their ability to convince the court – whether a panel of judges or a jury or both – to agree with their version of things. What they know or believe has little to do with it. The last thing they’d want is to put a cardinal in the dock and then see him walk. That alone makes it unlikely Comastri will face criminal charges in Vatican City.

What about Vos estis lux mundi?

Pope Francis could decide to use his sweeping reform law, Vos estis lux mundi, to begin a canonical criminal investigation of Comastri and / or the seminary.

Then again, he could have used that law to open an investigation at any time since it came into effect. “[Vos estis] applies as from June 1, 2019 for the reporting and investigation of misconduct whenever [it] may have happened,” Archbishop Charles Scicluna of Malta – the Church’s leading sex crimes expert – told the Catholic Herald in May of 2019, when the law was introduced. That was nearly two years ago, and it is more than three years since the seminary scandal exploded in the Italian press.

If Francis has investigated under Vos estis, we’ve heard nothing about it.

It would not be the first time the pope apparently ignored “notorious facts” and sidestepped his own signature reform law. In the Diocese of Buffalo, Pope Francis sat on a growing mountain of evidence against the erstwhile Bishop of Buffalo, Richard Malone, and eventually decided to send Bishop Nicholas DiMarzio of Brooklyn to conduct an Apostolic Visitation to the troubled see.

One reason frequently proffered for the choice both inside Church circles and by outside observers has been possible reticence on the part of the pope and the Vatican to launch any investigation that would run parallel to civil jurisdictions’ own – and in the Diocese of Buffalo, both NY State prosecutors and US attorneys are interested in the place.

Said bluntly: that doesn’t hold water.

Vos estis investigation might benefit from the results of a completed civil sphere inquest, but would not need the results of civil sphere investigators’ efforts in order to get off the ground. A Vos estis investigation could also conceivably work in tandem with civil sphere investigators. What a Vos estis investigation could not do is keep its own results quiet. The law itself is crafted to make the gagging of witnesses basically impossible.

When it comes to interjurisdictional collaboration, one also images the pope’s and the Vatican’s reticence to make their own investigators the ones to read civil sphere prosecutors into their own inner workings. The camel’s nose may get under the tent eventually, but don’t expect the pope or the Vatican to lift it for the beast.

Who’s on first?

Part of the problem with Vos estis is structural-mechanical: Lots of people can order or request a Vos estis investigation, but nobody must order or request its activation. In other words: if the law has a trigger, lots of fingers may be on it but none of them have to pull it. That creates a situation in which everyone in a position to do anything can wait for somebody else to do something.

That the St. Pius X minor seminary scandal is unfolding in the pope’s own living room makes one thing clear. If nothing happens, it will answer the question: Who didn’t give the order.