Vatican opposes interrogation of pope in sex abuse case

by John L. Allen Jr.

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On the same day that Belgian police raided church offices to seize documents in a sex abuse probe, the Vatican found itself in the courts of another country, this time the United States, trying to fend off attempts to interrogate the pope and other senior Vatican officials in another case involving clerical sexual abuse.

Vatican attorneys filed a brief on Thursday in U.S. District Court in Kentucky in the case of O’Bryan v. Holy See, opposing requests from lawyers representing three sex abuse victims for depositions of four figures at the very top of the church’s power structure:

•tPope Benedict XVI
•tItalian Cardinal Tarcisio Bertone, the Vatican’s Secretary of State
•tAmerican Cardinal William Levada, Prefect of the Congregation for the Doctrine of the Faith
•tItalian Archbishop Pietro Sambi, the Vatican’s nuncio, or ambassador, in the United States

The requests, the Vatican lawyers argued, are “unprecedented – akin to a foreign plaintiff seeking a foreign court order compelling the depositions of the United States President, Vice President, Secretary of Defense and ambassador.”

Such a move, the brief warns, could have dangerous foreign policy implications.

If an American court allows such proceedings, Vatican lawyers state, “Foreign courts could feel emboldened to order depositions of the President or Vice President of the United States regarding, for example, such issues as CIA rendition.”

Lawyers for the victims are also seeking a wide swath of documents from the Vatican, including communications with all bishops in the United States on sexual abuse issues for the last ninety years, and any documents related to more than 3,300 American priests against whom accusations of abuse have been lodged.

California-based attorney Jeffrey Lena, who represents the Vatican in American litigation, argued on Thursday that the requests are unjustified for two reasons: First, because the Vatican wasn’t involved in decisions on sex abuse cases in the United States, and it had no policy forcing bishops to cover up abuse; and second, because the pope and other Vatican officials enjoy immunity under international law from being forced to give testimony.

Among other things, the brief is the first time that Vatican lawyers have claimed that the personal immunity enjoyed by heads of state applies not just to the pope but also to the Vatican’s Secretary of State, on the grounds that the Secretary of State “is the equivalent of the Holy See’s Prime Minister.”

The O’Bryan case was originally filed in 2004, and is unique in that to date it’s the lone lawsuit against the Vatican to focus primarily on the role of bishops in covering up abuse rather than the priests who committed it. A federal appeals court ruled in 2008 that the case could proceed under an exception to the Vatican’s sovereign immunity, if the plaintiffs could show that:

•tAmerican bishops who engaged in what civil law calls "negligent supervision" were acting as employees and/or agents of the Vatican;
•tThe bishops were following official Vatican policy, as opposed to exercising discretionary judgment.

In a request filed on March 30, attorney William McMurry argued that taking depositions of Vatican officials is necessary to illustrate “the Holy See’s extensive control over clergy in the United States” and its “policy prohibiting clergy from telling anyone about known or suspected instances of child abuse.”

McMurry cited the case of Fr. Lawrence Murphy in Wisconsin, a priest accused of abusing more than 200 deaf children from 1950 to 1974. His case was referred to the Congregation for the Doctrine of the Faith in 1996, but Murphy was not formally laicized prior to his death in 1998.

Documents in the Murphy case, McMurry stated in his March 30 filing, “unequivocally link Pope Benedict XVI, formerly Cardinal Joseph Ratzinger, to child sexual abuse cases in the United States,” proving that the Congregation for the Doctrine of the Faith on his watch “discouraged prosecution of accused clergy and encouraged secrecy to protect the reputation of the church.”

The pope, McMurry argued, “is the most knowledgeable living person” regarding files in the Vatican and policies imposed by the Vatican on the sexual abuse crisis.

Aside from the personal immunity of the pope and other Vatican officials, Lena’s opposition pivots on the assertion that the Vatican wasn’t involved in any decisions related to abuser-priests in the Kentucky cases, and that no Vatican policy directed bishops to cover up that abuse.

Lena points out that in a 2002-2003 lawsuit against the Archdiocese of Louisville, the same attorneys now suing the Vatican conducted 21 depositions of church officials and acquired 7,500 pages of church documents – enough, according to one of those attorneys, to occupy “91 feet of shelf space” in their offices. Yet, Lena argues, that material has never been cited in the O’Bryan case, because it “makes clear that personnel matters related to priests – including allegations of child sexual abuse – were handled at the discretion of the local archbishop and archdiocesan personnel.”

“There is no hint of Holy See involvement with regard to any priest in the archdiocese, the evidence contradicts the notion that the archbishop was following any ‘mandatory’ Holy See policy, and the archdiocese repeatedly affirmed under oath that it never sent documents to the Holy See,” Lena’s brief states.

On the Murphy case in Wisconsin, Lena says the fact that the Vatican didn’t learn about it until twenty years after the abuse occurred “is profoundly inconsistent with the notion that the Holy See exercised day-to-day control over the handling of child sexual abuse allegations in the United States.”

Lawyers for the victims in the O’Bryan case have cited a Vatican document titled Crimen Solicitationis, first issued in 1922 and again in 1962, as a “smoking gun” proving that Rome directed bishops not to report abuse. Lena, however, says there is no evidence that the canonical procedures laid out in the document were ever followed in the Kentucky cases at issue in the O’Bryan lawsuit.

Observers say a decision on the requests for depositions is expected in November.

At present, it’s unclear what might happen if the Kentucky court were to order depositions of Vatican officials. Legal experts say that if such an order were issued and Vatican officials refused to comply, the court could assume their testimony would be damaging and decide the case on that basis.

To date, no Vatican official has been subjected to a deposition about the Vatican’s role in a sex abuse case. Levada was deposed in 2006 in an Oregon case, but that inquiry related only to his time as Archbishop of Portland from 1986 to 1995.

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