Unholy Immunity

Pope’s Claim To Be head Of State May Help With Legal Defense In Abuse Lawsuits, But It Raises Troubling Church-State Questions

The documents leaked to The New York Times in March were shocking.

A collection of internal church papers outlined how, over the course of 24 years, a Roman Catholic priest molested nearly 200 boys at a school for deaf children in Wisconsin – and how church officials learned about the abuse but did nothing to hold the abuser accountable.

The Rev. Lawrence C. Murphy left a trail of misery and anger at St. John’s School for the Deaf in St. Francis. Yet church officials who knew about his misconduct never punished him. In 1974, Murphy was transferred to Superior, Wisc., where he continued to work with children. He died in 1998, never having been charged with a crime or defrocked.

The story sounds remarkable. But what’s even more amazing is that it came to light at all. Church officials have fought for years to keep documents such as this secret. Determined to shine the light of public scrutiny on this ugly matter, Jeffrey R. Anderson and Mike Finnegan, two attorneys representing five men who lived at the home as children, turned the papers over to The Times.

The newspaper reported that the documents “include letters between bishops and the Vatican, victims’ affidavits, the handwritten notes of an expert on sexual disorders who interviewed Father Murphy and minutes of a final meeting on the case at the Vatican.”

With a track record this long and detailed, it would seem that the attorneys for the men who were abused as boys have an open-and-shut case. Yet it’s far from clear that they will ever receive justice in an American court.

If the leaders of a corporation or secular non-profit had behaved this way, they would most likely be in prison by now and their operation shut down. Some victims of abuse have won judgments against church dioceses through civil cases, but the denomination’s top leadership has remained beyond reach. The release of incriminating documents has embarrassed the pope and other church leaders, generating a flurry of apologies and papal statements marked by various forms of verbal judo – but it hasn’t yet held the church’s leadership accountable.

How can this be possible?

As the wide-ranging scandal over child sexual abuse has played out over the years, church officials have increasingly relied on what they see as their ace in the hole to protect the Vatican, the pope and top church officials: the concept of immunity.

The Holy See, the institutional headquarters of the Roman Catholic Church in Rome, is considered a sovereign state by most other nations. It has full diplomatic relations and exchanges ambassadors with 170 countries, including the United States, and enjoys permanent observer status at the United Nations – the only church so classified.

A top Vatican official reiterated the papal claim of immunity last month.

Giuseppe dalla Torre, head of the Vatican’s tribunal, told the Italian newspaper Corriere della Sera that the pope is immune from the actions of foreign courts.

“The pope is certainly a head of state, who has the same juridical status as all heads of state,” dalla Torre said.

But the Vatican official may be interpreting the law too broadly. It’s difficult, though not impossible, to sue another country in American courts. Those seeking to do so must contend with a complex piece of legislation known as the Foreign Sovereign Immunities Act (FSIA) of 1976.

FSIA bars most lawsuits against sovereign nations in U.S. courts. But it does recognize a handful of exceptions. One of them deals with cases where an employee or an official of a country does harm to a U.S. resident on American soil.

David Clohessy, national director of the Survivors Network of those Abused by Priests (SNAP), noted that claims of immunity are just the latest in a long list of techniques church officials have used to block lawsuits over molestation of children.

“Immunity is just one in a long, long series of seemingly endless legal arguments church individuals make to avoid having to disclose the truth,” Clohessy told Church & State. “I think it has prevented many, many lawsuits against the Vatican. It hasn’t been invoked as often as one might think, however, because the very notion of going up against what is perceived to be a sovereign state is so daunting to so many.”

Added Clohessy, “The sad truth is, church officials want to have their cake and eat it, too. They want to posture as compassionate shepherds but behave in court like any cold-hearted CEO. Immunity is just one more weapon in their arsenal.”

But that weapon may be losing some potency. Recently, attorneys representing victims of clerical abuse have made legal headway citing the exception in FSIA that deals with actions by employees. They have argued that since priests are church employees, the Vatican can be held liable for their actions.

Two federal appeals courts have ruled recently that lawsuits against the Vatican in Oregon and Kentucky may move forward. Neither court has ruled yet that the Vatican is liable for anything – merely that the legal challenges may proceed.

In a decision handed down in November of 2008, the 6th U.S. Circuit Court of Appeals ruled in O’Bryan et al v. Holy See that the plaintiffs had demonstrated that church officials “had knowledge of the alleged sexual abuse of priests and that they failed to act on that knowledge,” thus meeting the terms of the exception found in FSIA.

Victims’ attorneys consider these rulings important victories and say they may be helpful in ongoing efforts to subpoena documents or take depositions of church officials, including Pope Benedict XVI.

Attorneys want to question Benedict because he may have played a key role in covering up the scandal. From 1981-2005, Benedict, then Cardinal Joseph Ratzinger, headed a Vatican office known as the Congregation for the Doctrine of the Faith, which had jurisdiction over allegations of sex abuse by priests. Attorneys for the victims believe he may have signed off on orders reassigning molester priests or covering up their deeds.

As reports of clerical abuse rocked Europe in March, Benedict was forced into a defensive position. On March 21, clergy across Ireland read a pastoral letter from Benedict acknowledging sexual and physical abuse of children in Irish church-run institutions.

Critics complained that the letter did not go far enough and did nothing to address a culture of secrecy within the church. Benedict, for example, did not promise to end the church’s practice of reassigning offending priests to new locales – where many assaulted more children.

The pattern in Ireland looks familiar to anyone who has followed the scandal in the United States. In one notorious case that has captured headlines, two children accused the Rev. Brendan Smyth of abusing them in 1975. A bishop interviewed the children and then swore them to secrecy. Irish church officials did not contact law enforcement or defrock Smyth.

Smyth was reassigned. Over the years, he abused children in other parts of Ireland, Northern Ireland and the United States. He was eventually imprisoned after four Irish women began pressing for legal action in 1993. He died in prison.

The church’s response in the Wisconsin case was similarly anemic. The Times reported that in 1996, Milwaukee Archbishop Rembert G. Weakland wrote two letters to Ratzinger’s office, seeking guidance about Murphy. Eight months passed before Vatican officials ordered that the priest be secretly tried by an ecclesiastical court.

But even that procedure was halted after Murphy wrote to Ratzinger, insisting he had repented and claiming to be in poor health.

Attorneys for the victims say correspondence such as this is evidence that church officials knew about abuse and did nothing to punish those who had committed it – or even engaged in cover-ups. They seek to interrogate church officials under oath to find out what else might lurk behind the Vatican’s veil of secrecy.

“I want to know what the Vatican knew and when they knew it,” William McMurry, an attorney who is representing three Kentucky men who were victimized as children, told The Washington Post.

Added McMurry, “We’re trying to get what’s never been uncovered before: documents only the Vatican has. That’s the linchpin of liability.”

SNAP’s Clohessy agreed.

“Without access to the records and the decision makers, the crisis continues to be depicted as tens of thousands of bad-apple priests,” he said. “The documents, depositions and discovery are really the only way to understand the root causes and to deter future recklessness, callousness and deceit by many powerful decision-makers, secular and religious.”

David J. Nolan, director of communications for Catholics for Choice, a progressive movement of church members, said he thinks it’s unlikely the pope will ever be successfully subpoenaed. Even if a judge issued a subpoena, Nolan said, the U.S. government might take steps to shield the pope from appearing in court.

Nevertheless, attorneys for the victims are moving forward. Following the publication of The Times article, McMurry filed a motion in U.S. District Court for the Western District of Kentucky seeking permission to take a deposition from Pope Benedict.

In St. Paul, Minn., attorney Anderson has also expressed an interest in questioning the pope. Anderson and his legal team have been very successful in suing individual priests, bishops and dioceses over child sexual abuse, winning millions in civil judgments, but they say the magnitude of the scandal will not be exposed until top officials testify.

Anderson is overseeing a case in Oregon involving an anonymous plaintiff who says he was abused by a priest in 1965 or ’66. The priest, the Rev. Andrew Ronan, was transferred to Chicago and then St. Albert’s Church in Portland after being accused of molesting boys in Ireland.

In court documents, Anderson maintains that the Vatican had to have approved Ronan’s transfers; he is demanding documents related to that case. Church officials say FSIA shields them from providing the material.

In addition, the Vatican has used its influence with the U.S. government to help squash the lawsuits. In 2005, the National Catholic Reporter ran a story saying that a top Vatican official, Cardinal Angelo Sodano, had appealed to then-Secretary of State Condoleezza Rice to help block McMurry’s Kentucky litigation.

Rice was reportedly cool to the idea, but later that year the U.S. Justice Department filed a legal brief in a similar Texas case, arguing that the action should be dismissed because the pope holds immunity as a head of state.

Increasingly, the pope’s sovereignty claim is being questioned.

Last month, Kal Raustiala, professor of law and director of the Burkle Center for International Relations at the University of California-Los Angeles, and Lara Stemple, director of graduate studies at UCLA’s law school, wrote an opinion column for the Los Angeles Times arguing that the Holy See’s alleged statehood status has had negative effects.

Raustiala and Stemple opined that “the Catholic Church isn’t truly a sovereign nation” and that “to allow it to play one on the international stage perverts the meaning of statehood.”

Asserted the two, “Moreover, the church’s claim to statehood gives it even more political influence than it would otherwise wield and grants outsized power to only one of the world’s many religions. And its claim is particularly worrisome now that the church – embroiled in a disturbing scandal that has reached from Boston to Berlin – is claiming the sort of immunity enjoyed by prime ministers and presidents.”

The church’s “fictive statehood,” they assert, “allows it to promote its retrograde views on gender and sex in diplomatic settings and during treaty negotiations.”

They added, “Now, the unfolding sexual abuse scandal reveals another dark side of the Holy See’s claim to statehood: the extraordinary immunities claimed by the pope in the face of conspiracy accusations that span the globe.”

The situation in U.S. courts might be less difficult for victims of abuse if the nation did not recognize the Holy See as a state. However, the United States established full diplomatic relations with the pope in 1984, a move pushed by President Ronald W. Reagan.

Americans United for Separation of Church and State filed a lawsuit challenging the special U.S. relationship with one church as an obvious violation of the Constitution. The federal courts, however, rejected the case, insisting that AU and an array of allied religious groups and leaders did not have standing to sue. (See “Nominal Nation?,” May 2010 Church & State.)

A long history of diplomatic maneuvering has so far provided the church with the trappings of a state, enabling it to shield the pope and its leaders from the pedophilia scandal. But will it last? No one knows the answer to that question.

Immunity may shield the pope from civil claims and criminal prosecution, but it won’t stop all legal action against the church. SNAP director Clohessy said victims will continue to press for justice. He pointed out that many victims considered litigation as a last resort and undertook it only after being rebuffed by the church.

“The irony here,” he concluded, “is that if the bishops would act with a modicum of honesty and compassion, very few victims would sue. But victims feel driven to take legal action when they are deceived and rebuffed and ignored by the men who claim to be God’s representatives on Earth.”