Putting The Pope On Trial


Cicero tells a story about a raggedy and no doubt vicious pirate who was dragged before Alexander the Great. The conqueror asked the pirate by what right or warrant he infested the seas with his little ship. The pirate was something of a philosopher, says Cicero, and an uninhibitedly insolent philosopher (a type too rare in modern times). As St Augustine later retold Cicero’s story, the pirate replied, "The same right as yours, in infesting the earth! But because I do it with a tiny craft, I’m called a pirate: because you have a mighty navy, you’re called an emperor."

St Augustine used the story of the pirate and the conqueror to ask, "Remove justice, and what are kingdoms but gangs of criminals on a large scale?". If a villainous gang can acquire enough territory and subdue enough people, the gang is given the title of state and the status of impunity. If the head of a criminal gang can somehow acquire the title of ruler, his actions become immune to prosecution.

The doctrine of sovereign immunity to which the pirate was alluding has, however, been greatly eroded since its high point in the theory and practice of the medieval papacy. As applied to states, the doctrine has also been subject to serious challenges in the last 60 years in terms of international law and human rights protections. The heart of what justice now protects is not the standing and privileges of the rulers of the world, but the dignity of the human person.

That states and their officials and their citizens continue to engage in widespread violation of that dignity would, of course, only be denied by a fool. But there are very few people now who will openly and publicly praise such acts, least of all when they are directed at the weakest and most vulnerable, such as children. There are many more people, however, who offer excuses for these acts, or seek to cover up their commission. Allegations have been made and evidence has been offered that among those people is Pope Benedict XVI.

It is against this background that Geoffrey Robertson has suggested that the Pope could be prosecuted in the International Criminal Court (ICC) for crimes against humanity. Robertson notes that the ICC statute counts rape as a crime against humanity, along with other forms of grave sexual violation.

Christopher Hitchens and Richard Dawkins have instructed a team of lawyers, which reportedly includes Robertson, to prepare a case for when the Pope visits England later this year. Hitchens and Dawkins separately point to Benedict’s role in the cover-up of abuse, as well as his having institutional responsibility as head of the Catholic Church.

There is some dispute as to whether the Pope may claim immunity to prosecution or civil suit in these matters, whether in terms of sovereign or head of state immunity. In which forums such immunity might apply is not settled either.

What is not in dispute, however, is the legitimacy of making a case for those proceedings. To ridicule the making of such a case as a "stunt" or "undignified" is but one more attempt to deny justice to what has been established by both perpetrators and victims as terrible instances of violation, which flout civil as well as religious law. Those who claim a wrong has been done, and on the basis of largely undisputed evidence, have a right to be heard at law, and to apply for redress — just as those who are accused of the wrong also have a right to due process of law.

When those claims are heard, however, it is important to be clear about what counts as a relevant explanation, or an excuse. Much has been made of the connection of the rule of celibacy with the commission of acts of violation of children by priests. In a widely circulated article in the New York Review of Books, for example, Hans Küng has argued that "the rule that Catholic priests must be celibate is responsible for the crisis in the Church".  Küng is a prominent Catholic priest whose authority to teach theology has been rescinded. He argues that "free and open discussion of the rule of celibacy" should now be permitted in the Church as "reparation for the abuse that has taken place".

There is certainly a discussion to be held on the causes of the sexual violation of children, and of the reasons for its institutional cover-up. But the idea that the rule of celibacy has responsibility here, in the sense that its discussion should form part of a reparation for abuse, is nonsense. It is commonly repeated nonsense, however, even at the highest levels of law and justice.

Take for example the case of Vincent Gerard Ryan, who pleaded guilty to many acts of sexual assault against young boys over a long period when he was a priest in Newcastle. Ryan appealed his sentence as it did not take into account evidence of his "character, reputation, positive works and achievements". Ryan appeared to claim that his holding and discharge of a position of trust was a defence to his abuse of that position. When Ryan sought leave to appeal at the High Court, Justice Kirby raised the question of whether Ryan was "a situational paedophile", given that "he was in a situation where he was denied marriage, denied ordinary human contact and he then committed impermissible and criminal acts".

Such considerations about the rule of celibacy have no place in explaining or assessing the wrong of sexual violation by priests. And if Geoffrey Robertson’s case goes forward, such considerations about celibacy should be seen as simply one more pathetic excuse.

Nuns also submitted to the rule of celibacy, and whatever other wrongs might have been committed by them, there is no suggestion that there was widespread paedophilia among nuns, situational or otherwise. Indeed, perhaps it is the travails of masculinity, not the rule of celibacy, that should be acknowledged at any process that seeks to understand the sexual violation of children.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.