Holding Pope Benedict Responsible

The other day, The Wife read a headline to me: “Richard Dawkins: I Will Arrest the Pope.”  Well, that’s certainly an attention-getter and for a lover of criminal procedure the idea that a private citizen could arrest a visiting head of state in Britain was certainly news to me.  In fact, the Times article reveals that Dr. Dawkins and cohort Christopher Hitchens had something a little bit different in mind:

RICHARD DAWKINS, the atheist campaigner, is planning a legal ambush to have the Pope arrested during his state visit to Britain “for crimes against humanity”.

Dawkins and Christopher Hitchens, the atheist author, have asked human rights lawyers to produce a case for charging Pope Benedict XVI over his alleged cover-up of sexual abuse in the Catholic church.

The pair believe they can exploit the same legal principle used to arrest Augusto Pinochet, the late Chilean dictator, when he visited Britain in 1998.

The Pope was embroiled in new controversy this weekend over a letter he signed arguing that the “good of the universal church” should be considered against the defrocking of an American priest who committed sex offences against two boys. It was dated 1985, when he was in charge of the Congregation for the Doctrine of the Faith, which deals with sex abuse cases.

Well, come on. This is a publicity stunt. Law enforcement authorities in the UK are quite obviously not going to arrest the Pope for something he wrote twenty-five years ago in Italy even if it did result in a cover-up of a heinous crime in the United States.  Which is the only thing out there with Benedict’s name (well, his former name) on it or which could be fairly traced back to him.

What’s more, covering up the crimes is not a “crime against humanity.”  Covering up a crime is, in fact, a crime, and don’t think I’m trying to excuse it morally.  But is it really the same thing as torture or genocide perpetrated on tens of thousands of people from a position of governmental power?  I step heavily here where angels fear to tread because a) child molestation is a really bad thing, and b) people get pretty hysterical about it. 

But let’s recall that Benedict is not accused of personally molesting a child.  It’s fair to point out that Benedict knew, or should have known, that the priest who was asking to be defrocked (apparently the man lacked the personal courage to resign) would likely molest more children if placed in proximity to them.  Instead of turning the priest over to law enforcement authorities, Benedict suggested that he be transferred into another diocese, and the letter hints that the new diocese ought not to be told of the man’s history.  Once re-assigned, the priest wound up assigned to a youth ministry, placing him once again on contact with children and presumably he could not resist his own pathology and struck again.

Let’s bear in mind also that within the mythology of Christianity, and particularly within the sub-mythology of Catholicism, clerics who have assumed holy orders are charged within ministering to the faithful and that includes indoctrination to the idea that priests have the power to forgive sins, and indeed that dispensing this forgiveness is one of a priest’s primary job functions.  What’s more, priests come into knowledge of these sins of others through this sacrament of penitence and reconciliation. Information priests receive in confession is privileged from disclosure to law enforcement authorities pretty much the world over, and the Christian mythology tells the priests that they are required by their religion to hold the information they get in the confessional confidential separate and apart from any duties or privileges the law might set up.  Finally, they are taught, and teach, that all humans are sinners and imperfect, a description which includes priests.  So given all of this, a Catholic priest could easily have come to the conclusion that when one of his colleagues confesses to him about taking liberties with the altar boys, the priest hearing this revelation might treat it as an act of contrition by a penitent sinner, and treat it that way even if he was morally shocked by what he had heard, because he lacks training in the right real-world response to something like that — his only training and experience, and years of indoctrination and study, would have told him to handle this real-world problem within the context of his mythology.

Which doesn’t forgive a cover-up, but it does explain the seeming pervasiveness of stories about Catholic clergy concealing the misdeeds of their colleagues.  To be sure, a higher-up within the hierarchy of the Church learning of a rank-and-file priest’s molestation of children would not have come across that information in the context of the confessional — but I’m suggesting that such a person would have reverted to that training and background from a combination of lack of training otherwise as well as the other understandable-if-not-exactly-forgivable impulse I’m about to describe.

Specifically, that is the reflexive bureaucratic maneuver of “circling the wagons.”  Benedict’s priority was that of a bureaucrat, attempting to protect his institutional employer, precisely because he was a bureaucrat.  His response to the problem he was presented is bureaucratic in intent, tone, and effect.  While his letter paid lip service to the harm of the victims, he is certainly guilty of a callous disregard to them.  Benedict was not the molester.  He failed to do something that could have prevented future molestations and made it difficult for the authorities to detect and punish the actual perpetrator.

As publicity stunts go, accusing the Pope of “crimes against humanity” is certainly eye-catching, but it’s just not accurate.  What Benedict stands accused of would be something on the order of “aiding and abetting the commission of a felony,” or “obstruction of justice.”  Make no mistake, I say that these things are crimes and that they ought to be crimes.  But they are ordinary crimes.  Covering up someone else’s crime is not the breathtakingly shocking act of a monster which justifies a suspension of ordinary rules of law the way they did at Nuremburg or with Pinochet.

I hesitate to say, “Keep it in perspective, people,” because this is precisely the sort of thing that people will not keep in perspective.  What I will say is that I am not excusing what happened, I’m not trying to minimize or divert attention from the harm done to the victims here.  The perpetrator, the one who actually molested the children, deserves the full measure of justice that the laws of the states where he committed his crimes (California and Texas, as I recall) has on the books for him — and as I understand it, this man is being imprisoned and is unlikely to ever be free again.  I offer no opinion in this post about civil compensation for the victims, aside from noting that the Church’s institutional responsibility for that is a very serious issue as well.

As for Benedict, well, like it or not, he is the head of a state.  The UN doesn’t recognize the Holy See but both the UK and the USA do.  That means that Benedict travels under the cloak of diplomatic immunity because if heads of state could be arrested when they make visits to other nations, it would be impossible for diplomacy to be conducted in any meaningful way.  What’s more, the statutes of limitations for the actual crimes Benedict committed — aiding and abetting the molestation of children by suggesting that a known molester be transferred elsewhere rather than reported to the authorities and failing to suggest that he be removed from contact with children when a reasonable person would have made that suggestion, and obstructing justice by concealing evidence of crimes already committed — have very likely expired; and assuming he is guilty, he committed those crimes from an office in Rome or the Vatican, affecting crimes in the United States.  There would be no contact of any kind with the UK and I can’t see how the UK would have jurisdiction over any of this.

The result of that is that Benedict is not a proper subject, personally, for a for-real criminal prosecution.  But he can certainly be called out in public for his past misdeeds, and the entire church can be made to suffer the embarrassment of having such a man as its head.  It can suffer a diminishment in its authority to dispense moral guidance to the rest of us.  The world can look at the Church and see a hierarchy of hypocrites.  Given all the circumstances, that is possibly a deeper and more serious punishment to the institution as a whole than prosecuting one man for something bad he did twenty-five years ago could ever be.