Can Ex-Pope Benedict be Sued for the Sex Abuse Cases?

by Peggy McGuinness

Andrew Sullivan raises the stakes on the legal effect of the Pope’s retirement decision. As the Pope emeritus, can he now be sued in connection with his role in the sex abuses cases against the Catholic Church?  I can already see a lot of problems such a suit would present, and I am writing on the go today, but what do OJ readers think?  Does an ex-Pope retain head-of-state immunity?

For a full take on the canon law implications of the resignation, see my colleague Mark Movsesian’s analysis at CLR Forum here.

http://opiniojuris.org/2013/02/11/can-ex-pope-benedict-be-sued-for-the-sex-abuse-cases/

7 Responses

  1. I have seen some of the reports briefly today about Pope Benedict resigning.  Some of the reports are referring to the priest abuse cases.  I want to draw people’s attention to the filing in September of 2011 of the Survivors Network of those Abused by Priests with the International Criminal Court with regard to five or six top Vatican officials (including the Pope)  seeking an opening of an investigation and prosecution for crimes against humanity.  SNAP – founded in Toledo – with the Center for Constitutional Rights did programs here and at Harvard in the Spring of 2012 about their legal strategy. I can well remember great skepticism in some quarters (including here at opiniojuris.org) about that approach of filings.  The filing received international attention and I believe SNAP heard from people in 120 countries about the abuse they had endured at the hands of priests. 
     
    One result was SNAP decided to organize a worldwide meeting of those abused by priests which is scheduled to occur at the end of April in Dublin.  The Pope stepping down now ahead of that meeting I think is not just a coincidence.
     
    So I think a thought might be given to Pam Spees at the Center for Constitutional Rights and Barbara Blaine head of SNAP in terms of Justice and ATJ – heroes and heroines.
     
    Several SNAP media statements on the Pope’s resignation are available at http://www.snapnetwork.org/.
     
    I would look to their complaint to the ICC of September 2011 and their update of April 2012 available on the SNAP website for their rationale under the ICC statute.
     
    Best,
    Ben
     

  2. Don’t be ridiculous!

  3. Joost, the Pope’s a head-of-State. International Law applies to him. And times are changing. You’ll never know.

  4. Per Rome Statute Art 27, even before his resignation Benedict XVI could theoretically have been tried before the ICC in respect of Art 5 crimes occurring since 1 July 2002 on the territory of a state accepting the Court’s jurisdiction (like Germany).
     
    As for prosecutions in national courts, under the approach set out in the Pinochet case, Benedict as a former head of state would no longer enjoy absolute immunity and instead only have immunity in respect of his official acts performed while in office.  Any allegedly criminal conduct by him occurring before he became Pope would clearly not be the subject of this immunity, and so he could in theory be prosecuted before any national court having jurisdiction.

  5. I think the simplest thing is to again refer all to the Survivors Network of those Abused by Priests information/complaint filed with the ICC. The link is above to the SNAP webpage.The facts alleged were very much more than “lack of due diligence” . The facts alleged are simply appalling.

  6. ‘Abi Saab’ – I agree it’s a bit of a stretch, but not that much and probably not for the same reasons you think.  The argument would run that Benedict is responsible as a superior (Art 28(b)) or an aider and abettor (Art 25(3)(c)) for the crime against humanity of rape (Art 7(1)(g)).
     
    I apologise if I’m repeating what you already know, but a person can be liable under 28(b) for crimes within the Court’s jurisdiction committed by subordinates as a result of the person’s failure to exercise control over their subordinates, provided:
    (1) the superior knew or consciously disregarded information about the crimes;
    (2) the crimes concerned activities that were within the effective responsibility and control of the superior; and
    (3) the superior failed to take all necessary and reasonable measures to prevent or repress the commission of the crimes or to submit the matter to the competent authorities for prosecution.
     
    If, as alleged, Benedict was involved in transferring and covering up for paedophile priests, that does seem to tick all the boxes for Art 28(b) superior responsibility.  It would also obviously amount to aiding and abetting under 25(3)(c).
     
    The main problem relates to the crime itself.  Certainly individual victims were raped as that crime is defined for Art 7(1)(g), but to qualify as a crime against humanity the abuses must be knowingly committed as part of a widespread or systematic attack directed against a civilian population.  It would certainly be ambitious to characterise the acts of individual paedophile priests acting alone as a widespread or systematic attack on a civilian population, but not I think totally out of the question.

  7. I seriously doubt that the pedohile cases can count as a Vatican policy, so no recourse to ICC there. However, that doesn’t mean he can’t get sued under domestic law in several countries all at once and for a myriad of cases.

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