|Shrill Polemics Can't Excuse Qc Fudging the Facts to Prosecute Benedict Xvi: Porteous
September 22, 2010
A poor case against Vatican power: the argument mounted by Geoffrey Robertson QC
By Bishop Julian Porteous
Auxiliary Bishop of Sydney
Geoffrey Robertson QC is well known to Australians. He is a barrister of international standing. He is also a capable media personality.
On the basis of his public reputation and standing his new book, The Case of the Pope: Vatican Accountability for Human Rights Abuse, no doubt timed to coincide with the visit of Pope Benedict to England for the beatification of John Henry Newman, deserves attention and response.
For a lawyer of some standing the claims made in his book exhibit many errors of fact.
It contains many dramatic and false claims that need correcting. Robertson is known to be polemical in style. It has been his way in many issues over the years. Polemics cannot excuse from accuracy in fact.
Robertson claims in his book: ''While there can be no objection to an organisation disciplining members for a breach of arcane rules, there is every objection when those breaches amount to serious crimes and the organisation claims the right to deal with them internally without reporting them to the police"(SMH 9 Sept 2010). This comment needs to be challenged.
Firstly, does the Church protect paedophile priests? No. In the Church's first Code of Canon Law published in 1917, sexual offences against children were considered crimes and the Church provided processes to punish those crimes.
The revision of the Code in 1983 gave Bishops the tools needed to deal with these crimes. In recent years, in light of the focus of sexual crimes committed by priests against children, the Church has continued to issue laws designed to protect children and to punish offenders.
One example is that the age of consent has been raised from sixteen to eighteen. In other words, any sexual contact between a priest and anyone under the age of eighteen is a crime.
In 2002, Pope John Paul II transferred the jurisdiction to prosecute these crimes from local bishops to the Congregation for the Doctrine of the Faith, which was then under the direction of Cardinal Ratzinger.
This signalled a new commitment on the part of the Church and Cardinal Ratzinger to deal with this terrible crime and remove any offending priest from ministry.
Robertson's assertion regarding the Church's response to these crimes, that the Church "claims the right to deal with them internally without reporting them to the police" is a distortion of the reality. The Church deals with these crimes using its own laws and procedures, but it does not claim an exclusive jurisdiction.
The Church completely accepts the fact that the State has competence to deal with the crimes of clerics when they breach civil law.
The Church's purpose in conducting its internal processes is to protect the community by removing the priest from his ministry, the State's purpose is also to protect the community but it will do so by imposing a sentence of imprisonment. From the Church's perspective, both systems of law work together for the good of the community.
Does the Church, however, protect clerics, as Robertson argues? Tragically, this may have happened in individual cases in the past but for many years the Church in countries like Australia and the United States has encouraged victims of clerical abuse to take the issue to civil authorities to have it investigated by the police and then brought before a civil court.
Some victims, however, choose not to go to the police and ask the Church to investigate the crime.
The Church, through the Congregation for the Doctrine of the Faith, has affirmed the importance of crimes being reported to the police.
An official statement made on April 11 this year said, "Alongside concern for victims we must continue to implement, decisively and truthfully, the correct procedures for the canonical judgment of the guilty, and for collaborating with the civil authorities in matters concerning their judicial and penal competencies, taking the specific norms and situations of the various countries into account". The Church at the universal level is committed to this path. It is important to note that there are practical reasons for referring such crimes to civil authorities: the State has more resources than the Church to investigate any crime, particularly one that may have been committed many years ago.
The police have more authority and more experience than a Church investigator in the matter of interrogating witnesses.
Civil discovery laws empower police and lawyers to subpoena documents. The State's resources are better able to investigate a case so that the truth will emerge and so that a just outcome can be reached.
The Church will, however, continue to deal with the crimes of priests against children and young people internally so as to be able to remove offending priests from ministry for the protection of children and the good of the Church.
The Church cannot impose the sorts of penalties that the State's criminal law provides for such crimes. It has very limited capacity to coerce an offending priest.
The Church can, for example, impose an order on a priest to live in a certain place but cannot compel him to do so.
Where a crime against a child has been established using the Church's canon law, the case is referred to the Congregation for the Doctrine of the Faith and that priest will be removed from the priesthood and will no longer be able to minister on behalf of the Church.
That is a very serious outcome for a priest, but it's quite different to a prison sentence that the State can impose.
When Robertson states that this is "no punishment worthy of that name", he seems to have no understanding of just how serious this outcome is for a priest. In most cases, too, the priest will also be dealt with and punished by civil law.
Robertson claims that: "Canon law has no sex offenders' registry." Perhaps not in the way in which such registries exist in various civil jurisdictions, but the Church co-operates with civil law in screening anyone who may be in touch with children at a parish or school level. Church bodies will access such registries when appropriate to ensure that no one working for the Church will be a danger to children.
Robertson states, ''The worst that can happen, other than an order to do penance, is 'laicisation'; that is, defrocking, which permits the paedophile to leave the Church and get a job in a state school or care home, without anyone knowing of this conviction."
Some Bishops are now proposing the idea that it would be in the best interests of the Church and the wider community for a priest convicted of a crime against a child not to be laicised so as to maintain some minimal supervision over him which would not be possible if he was laicised.
This is a very difficult and perplexing decision, but every Bishop will now be doing his utmost to protect children and others from a predator priest.
In the matter of priests transferring to other dioceses, canon law requires both bishops to communicate with each other about any impediment to the priest working within a new diocese, particularly working with children.
Those priests who have not been laicised will not be able to transfer to a new diocese or parish.
Robertson has joined his voice to a cacophony of shrill criticism of the Pope.
This shrill criticism is embarrassing to some fellow secular humanists like Brendan O'Neill.
While he says in a piece in Spiked (7 September, 2010) that he has no intention of holding a candle for the Church, he goes on to say, "These Pope-protesters threaten to drain the last drop of decency from old-fashioned humanism, turning a once-principled outlook into little more than a requirement to hate religion".
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