Legal Resourse

Judge Burke takes Pope to task on abuse issue

Tue, 03 Aug 2010 05:06:36 +1000

Tag: usa

By GREG ERLANDSON

Judge Anne Burke of the Illinois Supreme Court has had extensive experience with the sexual abuse crisis in the Church. She served as interim chair of the National Review Board, monitoring the Church's response to sex abuse in the wake of the Dallas Charter and the series of reforms endorsed by the U.S. bishops.

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Judge Burke became a blunt critic of the bishops at times, scolding those who she felt were not cooperating fully with the review board, but she had words of praise for Cardinal Joseph Ratzinger. Cardinal Ratzinger was one of only a few Vatican officials who was willing to meet with her as interim chair, In a subsequent interview, she praised the cardinal "for being far more open to meeting with members of the national review board than our own bishops and cardinals. He took in everything we had to say and answered our questions. And we pulled no punches."

In an article in the June issue of U.S. Catholic, Judge Burke expressed dismay with how the Vatican was handling the latest phase of the abuse crisis,criticizing Rome's "siege mentality." But she still had kind words to say about Pope Benedict: "Benedict has done many good things, and on clergy sex abuse his record is better than he is given credit for."

Now, in an interview with David Gibson on the blog Politics Daily, Judge Burke has ratcheted up her criticism, suggesting that the Pope trade in his fancy papal vestments for simple black clerical garb. He has to do "something extremely dramatic" as a sign of penance. Her suggestions:

"The pope's red shoes should go to a museum, replaced by flat black brogues."

"Fur in all its uses should be set aside demonstrating a change of heart on the pope's part."

"The pope should urge members of the hierarchy to demonstrate similar simplicity by giving up the vestiges of privilege. They should show externally how seriously they are taking the scandal of abuse."

"The pope should invite clerics and hierarchy to spend one day each week in fasting and prayer -- as an expression of public sorrow for failing to safeguard the safety of generations of minors."

Judge Burke said she had written to the Pope in the spring offering to share her expertise with the Vatican, and last month received a letter back from Cardinal Tarcisio Bertone simply suggesting that she contact the Vatican's lawyer in the United States, something not possible given her role in the judiciary. Gibson wrote that "Burke doesn't necessarily blame Benedict for the Vatican's current problems; she hopes he is still the same man she and her colleagues met in 2004 -- a cardinal willing to listen, dressed in plain black cassock without a hint of red and no outward sign of his ecclesiastical rank."

http://www.osv.com/PopeBenedictXVIand...issue.aspx

Priest was under investigation months before removal from school

Tue, 20 Jul 2010 04:15:48 +1000

Tag: usa

By Sharon Smith

CHARLOTTE, NC (WBTV) - It's a situation any church or school may have to confront: an employee is accused of sex crimes against a child. The police investigation can take months to bring charges, let alone a conviction. At what point should an employer remove the accused from his or her position with children?

The Diocese of Charlotte is dealing with that same situation now.

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In September, an alleged victim came forward to police saying Father Joseph Kelleher molested him as an alter boy. The year was 1977 in the small town of Albemarle.

Fast forward 33 years, Kelleher is out on bond and facing charges for the crime.

Although the investigation started months ago, Kelleher was not placed on administrative leave by the Diocese of Charlotte until July when he was arrested.

For the past 11 years, he's worked as the chaplain at a Catholic high school in Winston-Salem.

The Diocese says it became aware of the allegations in January and contacted the Department of Social Services in Stanly County.

"What we had back in January was an anonymous allegation. I don't know if you would consider if fair to remove someone based on an anonymous allegation," said David Hains, spokesperson for the Diocese.

"We have a fairly long record in the Diocese of dealing with these things directly," he said, once they decide an allegation is credible.

By comparison, officials with Charlotte Mecklenburg Schools say they will suspend an employee immediately after sexual abuse allegations surface, even before charges are filed.

"It's definitely a difficult line to walk," said Anne Pfeiffer with Pat's Place in Charlotte, an agency that works with abused children.

"I always want to err on the side of making sure children are safe," she said.

Pfeiffer says it's common for children to report abuse months, or even years after it's taken place.

"I think in a lot of ways, we're lucky our system is built so somebody can come forward even years later and allegations can be investigated," she said.

Pfeiffer said there's often a trust dynamic between children and their abusers which can be difficult to overcome, especially when that abuser is a member of clergy, a teacher, or relative.

Hains said tougher policies have been put in place since 2002 to protect children who attend churches within the Diocese.

As for this case, Kelleher will have a bond hearing in August.

Tag: charlotte

http://www.wbtv.com/Global/story.asp?S=12839473

2 Men in 2 Different Moral Universes

Fri, 16 Jul 2010 22:49:17 +1000

Tag: usa
Tag: european_union

By ALAN COWELL

PARIS — As far as is known, or even likely, there is no formal link between Roman Polanski and the bishop of Bruges beyond the coincidence that both men, now in their 70s, were embroiled long ago in sexual abuse yet enjoy a measure of freedom.

But, in recent weeks, the juxtaposition of their unrelated cases has offered a starting point to ruminate on such questions as conflicting standards of moral judgment in Europe and the United States and whether celebrity, art, money or power might offer exemption from ordinary justice.

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Last Monday, after restricting Mr. Polanski’s movements in various ways for nine months, the Swiss authorities rejected a U.S. request for his extradition on charges related to his flight from sentencing in 1978. Bernard Kouchner, the foreign minister of France, where Mr. Polanski, 76, is a citizen, said he was “delighted” at the ruling.

On that same day, Bishop Roger Vangheluwe of Bruges, Belgium, was reported in the International Herald Tribune to be in seclusion at a Trappist monastery in Belgium after resigning last April when he admitted molesting a minor decades earlier, later identified as his nephew. There is no record of any European politician expressing delight at even an appearance of sympathy for an abusive cleric: this, after all, is an old and world-weary continent, given to compromise, seeing shadings of gray where Americans prefer stark monochrome.

The cases, of course, are different. Mr. Polanski fled the United States after pleading guilty to unlawful sex with a 13-year-old, Samantha Geimer. He had spent 42 days in psychiatric evaluation at Chino State Prison but, he said, feared that a judge, now deceased, would impose a harsher sentence. In any event, Mr. Polanski’s supporters argue, Ms. Geimer has emerged publicly to urge closure.

There is an argument, too, that Mr. Polanski’s behavior was a product of a wild era and of his own narrative — a child survivor of Nazism and the Holocaust in Poland, who later escaped Communism to reach the West only to see his own wife, Sharon Tate, murdered by the Manson Family in 1969. Could it be that his actions were tinged with the torment, and hubris, of an extraordinary life and times?

In the bishop’s case, the trauma is less known. The nephew he abused has not permitted himself to be publicly identified. Nor has the victim, now in his early 40s, offered forgiveness. And, just as Mr. Polanski’s crime was set in a particular era, so too the bishop’s hidden life was lodged in a secretive Vatican culture built over centuries.

But there are common conclusions and questions: does the status of an Oscar-winning moviemaker like Mr. Polanski soften the focus of opprobrium reserved for priestly abusers like Bishop Vangheluwe? If this is in part a morality tale — permissiveness corrodes virtue, illicit urges undermine restraint — is morality itself a relative concept?

That question seemed likely to be asked more searchingly this week after the Vatican issued new rules about the handling of priestly abuse, listing pedophilia in a catalog of other supposed grave crimes including “the attempted ordination of women.”

“What I did, supporting the ordination of women, they saw as a serious crime,” said the Rev. Roy Bourgeois, an American priest excommunicated less than two months after he participated in a ceremony ordaining women. “But priests who were abusing children, they did not see as a crime. What does that say?”

Irrespective of the answer, it has become clear that societies once condemned to collective silence over priestly abuse, such as Belgium or Ireland or Austria, are no longer prepared to remain mute, or to offer a tacit statute of limitations.

The world has moved on. The church is on the defensive. Sexual abuse is widely understood to be an enduring burden for the victims, whose forgiveness may send the wrong signal. It is society’s task — through its courts, not through closed ecclesiastical conclaves or individual acts of grace — to determine redemption and punishment.

Time does not alter that message. Neither does geography. What was punishable more than three decades ago in the United States remains so elsewhere: under an international warrant issued in the United States, Mr. Polanski could still risk arrest outside Switzerland, France or Poland, where he also holds citizenship.

Is that destiny too harsh? Society had different levels of tolerance in the 1970s. Mr. Polanski has been punished enough, his supporters say, effectively exiled from the Hollywood mainstream, held in the 1970s for a period agreed by due process, detained last September in Switzerland then ordered into house arrest at his chalet in the ski resort of Gstaad.

And, surely, his canon of work should be weighed alongside the legalities? Maybe not.

“The many artists and intellectuals who haughtily dismissed what Polanski had done on the basis of his talent and achievement” were thinking of his films, Richard Cohen wrote for The Washington Post. “They should have thought of their own daughters.”

By contrast, Bishop Vangheluwe, 73, has not been tried or punished. A Trappist monastery is no Swiss chalet, but neither is it a prison or a psychiatric ward. It is place of peace, contemplation, prayer. His nameless nephew is “scared” to talk. “And the church has a lot of power,” the man told Doreen Carvajal and Stephen Castle of the International Herald Tribune.

That power is built in part on secrecy, in part on the once-unchallenged mystique of its clerics and to a large extent on its frayed claim to offer moral certainty and rectitude. Those values might not always extend to Hollywood, yet, in significant ways, Mr. Polanski’s actions have had far more of a public airing than those of the clergy.

The intellectualized debate should not, of course, camouflage the reality. Abuse is about the betrayal of trust, the violation of fragile bodies and souls, the imposition of adult cravings on young people unable to discern or refuse the manipulation of their abusers until it is too late.

It is no more than an aside, but Mr. Polanski’s latest movie, “The Ghost Writer,” is based on a novel by Robert Harris published initially in 2007 as “The Ghost.” If victims’ advocates have their way, the haunting will not end as definitively as the movie does.

http://www.nytimes.com/2010/07/17/wor....html?_r=1

A New Angle on the Catholic Church Sex-Abuse Issue

Fri, 02 Jul 2010 01:36:51 +1000

Tag: usa

A recent AP report added a new insight into the Roman Catholic clergy abuse scenario that few have been willing to consider. Under John Paul II the church was recovering from a notable loss of priests, many of whom were leaving the priesthood to get married in the 1970s.

John Paul made it harder for priests to leave the priesthood as one of several papal responses to the crisis.

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Since entering the priesthood involves a sacramental oath, and the reception of holy orders, leaving it for laicization requires what is often a lengthy church trial. This trial was often shortened, following Vatican II, making it easier for a priest to leave. But all this changed in the late 1970s when John Paul II changed course. These facts are not really debatable as much as I have been able to perceive from my study of the issue. (I am open to understanding this response better since I have no axe to grind here at all.)

What does this have to do with the clergy sex scandal? Well, in Illinois a priest named Alvin Campbell was convicted in a court of law. His bishop recommended that he be removed from the priesthood. The court records, now made public, show that then Vatican refused to defrock this priest based on the request of the priest himself. The case went to the Vatican where Cardinal Joseph Ratzinger, now the pope, ruled that “The petition in question cannot be admitted in as much as it lacks the request of Father Campbell himself.” This statement occurs in a July 3, 1989 letter to Bishop Daniel Ryan of the Diocese of Springfield.

It is no surprise then that AP refers to changes in the Vatican which “hamstrung U. S. bishops struggling with an abuse crisis that would eventually explode.”

I have several observations: (1) The response of the Vatican was not an obvious attempt to cover-up the sex scandals. (2) This response was wrong and reveals just how the Catholic doctrine of the priesthood can still leave it less than fully open to public scrutiny and (at times) proper corrective discipline of its own priests. Thankfully, this is being changed but “it is long after the cows were out of the barn” as a farmer friend once put it. (3) Nothing has convinced me that Cardinal Ratzinger covered up sexual predators but a lot of this does show that the institutional life of the church provided a series of problems that make it very hard for the Catholic Church to deal the modern world in the way that seems natural and completely straightforward. Critics will seize on everything they can and there is material here to be seized upon. Sadly, unless you have listened to the victims of these sexual crimes you have not anguished deeply enough with the “little ones” to be a credible source of correction. This is what troubles so many of us, both in and out of the Catholic Church.

Vatican II opened the door to new understanding of the priesthood, stating that the priesthood did include all the faithful. But Vatican II also said that there were still essential differences between the ordained priesthood and the common priesthood, which is Rome’s doctrine of the priesthood of all Christians. But Vatican II clearly did not go very far in specifying what constitutes this difference. Ecumenical conversation has forced further Catholic thought on the matter, which I particularly welcome as a non-Catholic. But I think there is still a long way for the Catholic Church to go in this conversation. I pray that this scandal will ultimately prove to be a means of purification and reformation. I think most of my Catholic brothers and sisters agree, though some will still defend the church in the face of obvious moral error.

http://johnharmstrong.typepad.com/joh...issue.html

Between Law And Responsibility

Fri, 02 Jul 2010 01:00:22 +1000

Tag: nigeria

Nobel Laureate Wole SOYINKA alerts the nation once more on the dangers of elevating individual religious doctrines above the protocol that binds the multi-religious Nigeria together…

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The entire world knows today of the history of horrendous abuse of that same social investment – youth - by Roman Catholic priests across the world – from Germany, where the present Pope was born, to the United States and undoubtedly even across continents where new revelations may be imminent even as we speak. These revered and trusted ministers of God, charged with the spiritual upliftment of impressionable youth, abused the trust of their wards, choirboys or school pupils, inflicting on their victims unspeakable trauma. Bishoprics have been sued for millions, some diocese forced into bankruptcy and the Bank of the Vatican placed under severe strain through payouts for the degradation of what we have described as society’s prime asset. Some of these clerics have been charged to court for crimes committed decades ago. The Pope has issued public apologies, personally, the Vatican has issued encyclicals rebuking its ministers for bringing the Church into disrepute, keeping this long rot hidden, often acting in a complaisant manner that encouraged the spread of the contagion. World media, needless to say, has been even more unsparing. By contrast, from the Supreme Council for Sharia, we encounter defiant conduct in favour of the unacceptable.

Another instructive observation: Nowhere, absolutely nowhere has it been reported that even one of these criminals sought to justify his act through any institutional shield. They accepted full responsibility and expressed contrition. Not one has been heard to say that he was perfectly entitled to sodomize young boys because there is no law set down in the gospels, no chapter and verse in the Christian bible that expressly forbade the buggering of young boys. Nowhere has any accused priest attempted to interpret Christ’s ‘Suffer little children to come unto me’ as an invitation to bring their children for his sexual gratification, turning unripe bodies, male or female, into submissive sex objects. Not one of these sick individuals within the Roman Catholic Church has shot back at his accusers and declared: The law of the Bible is superior to any constitution – I am ruled only by biblical dictates, not by secular law – show me where the Bible expressly forbids copulation with under-age children. Now that is where even the most grievously lapsed individual, however placed, may yet earn a modicum of redemption and mercy through acceptance of responsibility. Even as we speak here, the Los Angeles Justice department is considering bringing legal action against the soon-to-retire Archbishop Mahoney of the California diocese. He has not been accused of the basic criminality, but evidence has emerged that he engaged in some cover-up, thereby becoming potentially guilty of conspiracy, obstruction of justice and perjury. He has denied this. He has not pleaded that it is Church policy to simply send offenders for counseling, or taken refuge in that Christian dictum: let him that is without sin cast the first stone. No, he is consulting his lawyers and issuing denials. I don’t know what position Yerima holds in the Sharia hierarchy, but it can be no higher than that of Cardinal Mahoney within the Roman Catholic hierarchy.

The issue is a simple one. If, within a multi-religious society, that is, a non-theocratic society, one religious text claims superiority to the constitution that supposedly serves as the common protocols of association, then let feel free to declare the same and act the same. I stand here to proclaim that The Book of Ifa stands superior to the Nigerian constitution, subject only to the interpretations that its acknowledged priests, the Babalawo, choose to give its tenets. For all followers of orisa, the Law of Ifa stands sacrosanct and supreme.

However, the Law recognizes the relevance of a man’s background and prior record, so we do have a duty to refer to a significant chapter in the career of this present law-giver and former executor of the nation’s laws. I refer to the killing fatwa issued against a young woman, a journalist. True, Ahmed Yerima did not initiate the original fatwa - to his deputy belongs that singular dishonor, his superior being away from the country at the time. No sooner did the latter hear of it however than he backed and reinforced it with the full weight of his authority as governor and unconsecrated mullah. Obviously even a learned one, since he is not without knowledge of precedents as he seeks to impress upon us, poor ignoramuses:

“I am merely following in the footsteps of the Prophet Mohammed” he declared. We shall return to that theme in a moment.

Madame Uwais, writing from ‘within’, and obviously well versed in the tenets and injunctions of Islam and the Quo’ran and a Justice in her own right under whatever system, has frontally tackled what we, on our part, have always deplored as the abuse of a fundamentally humane religion, and the backward interpretations given it by some of its exponents and practitioners. She writes:

“Shari’a is …. a dynamic law, measuring and moderating its impact on the development of the human condition.”

The acknowledged dynamism of Islam and the Shari’a serves as a social touchstone, a non revolutionary control that enables us to confront those who advertise Islam – or indeed any religion - as a rigid, inflexible Law-unto-itself, since it throws its practitioners back to the court of social and moral responsibility that makes human interaction possible. That evolved code of social responsibility may, but need not, also form the concern of religion, since it emerges primarily from deductions of one’s obligations to fellow creatures and environment. Before religion, community was. We can date religions, but social scientists are still grappling with the time-line of the evolution of social man. Again, a code of responsibilities may also coincide with the law directly, or operate outside it – that is, operate where the Law is silent.

“All the things that Allah said we should do, and all the things that the Prophet said we should do, I have tried to do them”

All the things? We need some emergency schooling. We would like to be instructed where the Koran or the Prophet mandates Yerima to break the laws of Egypt – a Muslim nation – or of Nigeria, a multi-religious society, both members of the Africa Union. We demand to be schooled as to what portions of the Quo’ran fly in the face of the realities of a 13 or 14 year old girl child’s anatomy, permitting her to be snatched from her place as a protected asset and turned into a sex facility – there is no other expression for it – for a 50-year old pervert.

For all reflective cohabitants of the Nigerian nation space, ex-governor, sitting Senator Yerima’s impudent self-defence, applauded by a number of his fellow senators and the Supreme Council for Sharia, transcends the act itself. Once again, this time on a scale that overtakes even his insertion of a divisive wedge within the Nigerian polity through his sectarian imposition of the Shari’a - which, as has become evident – is Ahmed Yerima’s personal, cultic, and convenient version – looms the very definition of nation being. There hangs a truly mind-boggling bundle of contradictions that must be boldly disentangled in the process of nation-becoming. For far too many years, these contradictions have been swept under the carpet through cynical and opportunistic political calculations, despicable compromises and, most disturbingly, sheer moral cowardice. From time to time however, an opportunity comes to compel the people of any nation space to confront the obstacles in the way of an honest interrogation of a vision of oneness. Such moments should be welcome.

Such moments should be seized upon, indeed explored and exploited because there is nothing immutable about a nation’s existence, and not even a collective will-to-existence makes it so. History flatly contradicts such expectations, teaches that it is only work, real hard work and social negotiations within a framework of practicable, basic common denominators that can lay the basis for a single nation. Acting against that obvious negotiation of interests, however defined, and in whatever field of interactive undertaking, is the habit of loose, and therefore porous compromises, the privileging of one group claims over another, and a lack of moral rigour in the adoption, and honest application of basic rules of co-existence throughout every component hamlet within the desired polity. This principle in no way vitiates the organization – even collective - organization of differences, of group interests, undertaken on a principle of mutual assistance and collaboration with others.

The recent national affront – a mere high-profile exposure of a number of deeply entrenched decadent traditions in parts of the nation – has brought to the fore the fragile nature of the protocols that supposedly bind the nation space known as Nigeria together. Unilateral tinkering with, indeed arrogant flouting of, these protocols time and time again, by those who mouth their commitment to a unified entity, is such evident contradiction that one can only wonder why they do not boldly announce their own comprehensive set of protocols, present them to the rest of the nation as a basis for discussion and negotiation. What we witness today is that such people thrive through having their cake and eating it. They benefit, indeed prosper, under the set of protocols but proceed to deface those pages that they find inconvenient, substituting their own preferences by a casual act of declaration – or plain sight deed. The binding protocols, including criminal laws, become relative – we have grown accustomed, even complaisant, about this. It has become so commonplace that it draws little attention to itself. However, we enter increasingly dangerous grounds when the habit becomes openly declared as the ground rule, and with a self-ascribed religion based hierarchy in a society of multiple religions.

This is intolerable proceeding. When we are dragged into a realm of relativism, where, paradoxically, relativism arrogates to itself a bedrock stature that upholds any act that may affect, or deny the equally ‘relative’ claims of others within the same society, then everything falls to pieces, the entire social fabric is ripped apart. At such a point, we find ourselves confronted with only one choice - to return to base, throw these protocols into a basket, shake them up, and then tackle what is left that we can thereafter refer to as the irreducible commonalities that enable us to see ourselves as one nation. This phase has been recorded several times over, the line has been crossed again and again but, rather than confront the moment of truth structurally and re-group as free beings, we only hear the sing-song –‘the sovereignty of the nation is non-negotiable’. Permit me to enter a dissenting view: not just the sovereignty, but the very concept of the nation is, and must be negotiated. All else is falsity, complacency, self-deception, a bequest to future generations of gilded skyscrapers erected on quicksands.

Try as I can, I do not recall any individual precedent that offers itself as an opportunity for some serious soul-searching, reaching backwards into the beginnings of the ongoing consolidation of the Nigerian nation space, even at its rawest, external administrative phase. The human cost has reached unacceptable dimensions, and it is within that context of the cycle of waste of human assets that I invite us to take our minds some years back, and make a comparison of the following two utterances, and the consequences for the nation, that have attended both.

The first was by the briefly mentioned female journalist from THISDAY, the year 2002. The circumstance: preparations for a Beauty Queen parade and exhibition in a city that was expressly situated as a symbol of unity, and guarantee of the mutual co-habitation of varied peoples and cultures – Abuja. Some Yerimites – let’s call them that, as distinct from genuine believers - objected to this pageant as an act of impiety and indecency, threatened fire and brimstone if it was held, never mind that there were contestants who were also fielded by their own Islamic nations – but that is totally irrelevant, just a useful passing observation.

http://www.independentngonline.com/Da...x?id=16322

Without its immunity, can the Vatican survive?

Thu, 01 Jul 2010 01:07:02 +1000

Tag: usa
Tag: vatican

By Chiara Albanese

A US supreme court decision could have serious implications for the Holy See, historically protected by its sovereignty

This week the US supreme court issued a decision against the Vatican the importance of which has been compared by one lawyer to the fall of the Berlin Wall.

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That may sound like an exaggeration, but the court's decision that the Vatican does not have legal immunity in a claim of sexual abuse by a Catholic priest could have far-reaching ramifications for the church.

The case, John V Doe v Holy See, has been filed by a plaintiff (using a pseudonym) who claims to have been sexually abused on several occasions in the mid-1960s by a Roman Catholic priest called Andrew Ronan . The claim was filed back in 2002, and thanks to the court's decision last week, it can finally proceed against the Vatican – allegedly liable because it acted as the priest's employer.

Jeffrey Lena, the US-based lawyer who is defending the Vatican, has argued that the Holy See should not be regarded as an employer of priests because it does not pay them any salary, or benefits, and does not exercise a day-to-day control on their activity.

But the real issue in the case has been immunity. The Vatican attempted to invoke the Foreign Sovereign Immunities Act (FSIA) of 1976, under which foreign states cannot be sued. The supreme court refused to allow this.

The decision last week was, coincidentally, delivered on the same muggy summer's day in which Rome and the Vatican celebrate the feast of Saints Peter and Paul, patrons of Rome.

The religious holiday sees the city shut down and attracts a flood of tourists in St Peter's Basilica, one of the strongest symbols of the terrain power of the Vatican. Many who visit the city learn of the time when, on 20 September 1870, the Pope has lost his temporal power as the Italian army breached the Aurelian Walls at Porta Pia to conquer Rome.

Despite its turbulent history, the political and economic influence of the Vatican has never ended. Avvenire, the Italian bishops' newspaper, predictably describes the supreme court rejection of the immunity claim as "a non-decision". But in reality it is a decision, and a controversial one with the potential to shake the Vatican's foundations and have far-reaching financial and reputational consequences.

In the legal community, the debate on immunity rages on. Most Italian commentators tend to agree that the Vatican is a sovereign entity as it has a marked territory, with Latin as the official language, an independent legal system and its own police body, facts which tend towards giving it the same immunity as states. One of Italy's most famous lawyers, Franzo Grande Stevens, has published an open letter in the newspaper La Stampa saying that the Vatican clearly has an immunity.

But there are others who argue that it is not a member of the United Nations (it has a permanent observer status) and that religious leaders do not usually enjoy an immunity status.

The US supreme court decision paves the way for other suits to be filed against priests accused of paedophilia, which will in turn involve the Vatican. Jeff Anderson, the lawyer representing the claimant, is already understood to have more cases against the Holy See in the pipeline. The combination of potentially thousands of victims in numerous jurisdictions, and the economic incentive for lawyers seek-out cases (particularly in America where so-called "ambulance-chasing" is rife), could result in enough cases to have devastating implications for the church.

The Vatican's response so far has been to deny liability, and last week it said it would prove it can't be held responsible for the priest's actions. But how the law will deal with such strong political, religious and economic powers challenging what is in legal terms an uncertain and evolving area, remains to be seen.

Chiara Albanese is a freelance legal journalist

http://www.guardian.co.uk/law/belief/...n-survive?

Archdiocese official argues that safeguard audits are insufficient

Sat, 26 Jun 2010 00:26:57 +1000

Tag: usa

By Annysa Johnson of the Journal Sentinel

Catholic dioceses in Wisconsin and across the country often tout their annual audits by the U.S. Conference of Bishops as proof that they are protecting children from sexual abuse by clergy.

The audits ensure a diocese has in place such safety measures as training, a code of conduct, background checks and a child sex abuse review board, all required by the so-called Dallas Charter, a 2002 document drafted by the bishops conference in response to the clergy sex abuse scandal.

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But a canon lawyer and vice chancellor in the Archdiocese of Milwaukee alleged this week that the audits are insufficient, saying parameters the bishops conference imposed limit their scope in a way that could endanger children.

"I'm very disappointed," said Father James Connell, who noted that the audits cover only compliance with the Dallas Charter and not the Vatican's essential norms that dictate the procedures for reviewing sex-abuse cases involving children.

The danger, he said, is that priests could be returned to ministry who should not be.

"People in the pews expect that the audit covers everything, and it doesn't," said Connell, a Sheboygan priest who last week issued an open letter to Catholics nationally, accusing the La Crosse Diocese of violating canon law in the way it vets child-abuse claims.

"I actually feel somewhat deceived by the bishops conference," he said.

Teresa Kettelkamp, executive director of the Secretariat of Child and Youth Protection for the Washington-based council, said the bishops are likely to take up Connell's concerns, but she could not say when.

She agreed with Connell's assertion that the audit is limited, but declined to comment on his claim that those limits could leave children vulnerable to abuse.

"I'd rather not be second-guessing the canonical application with regard to determining suitability for ministry," she said.
Lower standards

The La Crosse Diocese has denied in a statement that children are at risk there.

According to Connell, the limits of the audit are illustrated in La Crosse, which has passed its audits despite a written policy that he says contradicts Vatican law on how preliminary reviews of child-abuse claims are conducted.

Vatican law requires that any case in which a "semblance of truth" to a claim exists - a low standard akin to "probable cause" in civil law, according to Connell - be referred to the Congregation for the Doctrine of the Faith in Rome.

But, according to its website, La Crosse directs its review board to use a higher standard known as "moral certitude," the canonical equivalent, he says, to "beyond a reasonable doubt."

That creates a higher bar, which makes it more difficult for victims to prevail at the review board, Connell said.

"If La Crosse did it wrong, maybe there are other dioceses that have it wrong," said Connell, who sits on the Milwaukee Archdiocese's review board. (Connell said Milwaukee uses "preponderance of evidence," a lower standard often described in civil law as a slight tipping of the scale.)

"Whether it's on purpose or inadvertent, somebody ought to be checking to see that the appropriate law is followed," he said.
Red herrings

Kettelkamp, whose office oversees the audits by the consulting firm the Gavin Group, confirmed that the audits cover only the provisions of the charter, and not the Vatican norms.

Assessing review standards and the efficacy of their outcomes "would be a huge task and beyond the scope of the charter," she said.

In La Crosse, she said, what matters is the standard used by the bishop, not the review board, which is advisory.

A May letter from the diocese to the bishops' National Review Board said the La Crosse bishop uses a standard of "sufficiently confirmed," but conceded the language is ambiguous and the diocese said it intended to clarify it.

Canon lawyers said Connell raised legitimate concerns, but one questioned whether he had the legal standing to do so.

"The focus on compliance with the charter is a red herring," said Tom Doyle, a retired priest and canon lawyer who has testified against the church in sex abuse trials around the world.

"All the audit does is determine that a diocese has procedures in place. It doesn't look at how those are applied," he said.

Father Phillip J. Brown, associate professor of canon law at The Catholic University in Washington, said the norms are enforceable but not by the bishops conference.

"It would have to be by the universal church authorities," and Connell lacks standing to bring it to them, he said.

"It would have to be someone affected by the matter he's complaining about."

Tag: cannon_law
http://www.jsonline.com/features/reli...08219.html

Archdiocese official argues that safeguard audits are insufficient

Fri, 25 Jun 2010 00:24:52 +1000

THE PRIEST SEXUAL ABUSER: CANON LAW, CRIME AND FITTING PUNISHMENT

Wed, 16 Jun 2010 21:46:41 +1000

Tag: usa

By abyssum

Canon Law, Crimes, and Fitting Punishments
Lawyer Reflects on Pros and Cons of Even the Worst Sanctions

WASHINGTON, D.C., (http://Zenit.org).- The Church’s law provides for various punishments when her sons or daughters go astray, but in the case of priest sexual abusers, perhaps the most serious canonical punishment is not always the best one, according to one canon lawyer.

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This suggestion was made by Father John Beal of the Diocese of Erie, Pennsylvania, when he addressed participants at a one-day seminar May 25 on canon law and sexual abuse.

Father Beal cautioned that turning a priest-sexual predator loose in society by separating him from the clerical state might solve the internal problem for the Church, but could serve to worsen the issue as a whole, particularly when the chance of a successful civil trial is minimal.

The canon lawyer made this observation during the question-and-answer session that followed his address on “Crime and Punishment in the Catholic Church: An Overview of Possibilities and Problems.”

He was the third canon lawyer to address the seminar, which was sponsored by the U.S. episcopal conference and the Canon Law Society of America. Sponsors explained that the event was “held in response to media interest in clergy sexual abuse.” Videos and texts of the four speakers’ presentations, the questions-and-answers sessions, and a panel discussion are available online. ZENIT is this week providing commentaries on the talks.

3 goals

Father Beal noted how those who mete out punishment in the Church — as in a civil legal proceeding — have the challenge of making the punishment fit the crime, a task that is anything but clear-cut and rarely garners unanimous support.

Nevertheless, the Church teaches that penal sanctions in an ecclesial context have essentially a three-fold aim: “repair the scandal, restore justice, reform the offender.”

The priest gave an overview of the possibilities of punishment for addressing the crime of sexual abuse by members of the clergy: “These measures are: medicinal penalties or censures, expiatory penalties, [...] and penal remedies. There are also two non-penal strategies which may be useful in addressing the issue.”

The first of these, medicinal penalties, are “deprivations of spiritual goods,” privations which are theoretically temporary, and whose “primary aim is to impress upon the offender the seriousness of his crime and thereby prompt him to repent and reform,” he said.

The present Code of Canon Law includes three such censures: excommunication (c. 1331), interdict (c. 1332), and suspension (c. 1333).

Regarding excommunication, Father Beal clarified that it does not expel a person from the Church, though he is forbidden to “participate ministerially in the Mass or any other liturgical rite, to celebrate or receive the sacraments and sacramentals, to exercise the functions of any church office or ministry, and to perform acts of church governance.”

An interdict, the second medicinal censure, “prohibits a person from ministerial participation in and reception of the sacraments and sacramentals.”

And the third, suspension, is a punishment that can only affect members of the clergy. Depending on circumstances and degrees, it prohibits the clergy from “some or all acts of the power of orders” and the “power of governance,” (such as performing the sacraments or administering Church property), or from “some or all rights or functions attached to their offices” (such as witnessing marriage.)

Father Beal proposed that censures are unlikely to be effective punishments for priest abusers.

He explained: “Since they can only be imposed after a warning, there must be evidence of an incident of abuse or at least suspicion that a particular cleric is prone to such abuse before a censure can even be threatened. Sad experience of the recent past suggests that even the sternest warnings and threats are unlikely to be effective in deterring abusive clerics from repeating their offenses. Even when a censure has been imposed, it must be remitted once the offender evidences repentance — and, as many bishops have learned to their chagrin, sexually abusive clergy can make very convincing displays of repentance when they are confronted with evidence of their offenses.”

Priestly powers

Abusers can also be punished with expiatory penalties, which are: a prohibition from living in a particular place or an order to live in a specific place (Father Beal compared it to house arrest); a deprivation of a power, office, function, right, privilege, faculty, favor, title or insignia (these deprivations have a wide range, including prohibition to preach or hear confessions, for example, or having the papal honor of monsignor removed); a prohibition on the exercise of powers, office, functions and rights; a penal transfer from one office to another; and finally, dismissal from the clerical state.

Father Beal took time to spell out this last penalty. He clarified the “ontological” change that comes with holy orders, making a priest a priest forever. What is not permanent, however, are his faculties as a priest — his permission to act as a priest, saying Mass, hearing confessions, etc., and the “juridic or legal status that is known in canon law as the ‘clerical state.’”

“These appointments and empowerments can be lost as can the clerical state itself. The clerical state can be lost by the declaration that a person’s ordination was invalid, by the grant of the favor of a dispensation by the Holy See, and by the imposition of the penalty of dismissal following an administrative or judicial process,” he explained. “A cleric who loses the clerical state is thereby stripped of any offices, ministries or delegated power he may have still had, loses the rights proper to the clerical state and is relieved of its obligations — save for the obligation of celibacy — and is prohibited from exercising the powers of his order.”

The canon lawyer noted a practical consequence as well, at least in the United States: the priest also loses his financial support, the possibility of a pension, and health insurance.

More choices

Father Beal then considered penal remedies and penances. The first is a formal warning given when there is grave suspicion of offense but a lack of sufficient evidence for a penal process. A penance, on the other hand, can be given when there is substantial evidence but the penal process is barred because of some other circumstance, such as age or infirmity. A penance like this could be barring the priest from ministry and requiring him to retire to a life of prayer and penance.

Finally, the canon lawyer looked at the two non-penal remedies: an administrative procedure leading to a dispensation from the obligations of the clerical state and return to the lay state, and a declaration of an impediment to the exercise of orders.

This first “remedy” involves a request made to the Holy See to return to the lay state, a request that comes either from the priest himself, or from the priest’s bishop or superior who sees an “urgent need for expeditious action.”

The declaration of an impediment deals with those who have psychic illnesses. “When a priest clearly has committed offenses with minors but is judged too mentally unbalanced to be held criminally culpable, the declaration of the impediment might be the most expeditious way to distance him from public ministry and the risk of future offenses,” Father Beal opined.

Step by step

The canon lawyer gave a brief overview of the process for dealing with a priest accused of sexual abuse. The task of handling this process is reserved to the Congregation for the Doctrine of the Faith.

If a bishop receives an accusation that seems plausible, Father Beal explained, he conducts a preliminary investigation and forwards the results and his recommendation to Rome. The Congregation for the Doctrine of the Faith then determines how to proceed.

Father Beal added: “If the Congregation decides that a process possibly leading to the imposition of penal sanctions is called for, it has several options. First, the Congregation can order the initiation of a penal trial either at the Congregation itself or in the diocese where the complaint originated. The trial proceeds in two stages, the first to determine guilt or innocence and the second to apply the appropriate penalty.

“Second, the Congregation can order the initiation of an administrative process at the local level. In this process the bishop serves as decision-maker and the accused must be given the basic elements of what we would call ‘due process.’

“Third, when evidence of the accused’s guilt is clear and there is an urgent reason to proceed expeditiously, the Congregation can take the case to the Holy Father ‘ex officio’ and request that the accused be dismissed from the clerical state as a penalty.”

Not foolproof

Father Beal concluded his address with some considerations regarding sentencing.

“When searching for the just balance of the aims of canonical penal law, the most important consideration for decision-makers in the Church is not how best to punish the offender for past crimes but how best to protect the vulnerable from future abuse,” he said.

In this context, keeping the priest from ministry that entails contact with a vulnerable population is key. The most sure way of ensuring this is leveling the most serious sanction: dismissal from the clerical state.

“As far as ministry in the Church is concerned,” Father Beal said, “the penalty of dismissal is the ecclesiastical equivalent of the death penalty.” And it might “help to dispel scandal by making it clear both to the faithful and to the broader public that, as Pope John Paul II said, ‘there is no room in the priesthood for those who abuse children.’”

Nevertheless, as the priest extrapolated in the question-and-answer session, “penalty of dismissal does little, if anything, to contribute to the rehabilitation of the offender.”

He noted that “dismissing a person from the clerical state also cuts him loose from whatever imperfect systems for monitoring and control the Church may have and leaves him free in society.” And in any case, the Church cannot physically restrain a priest from continuing to “minister,” even if he no longer has the authority of the Church. As a case in point, Father Beal pointed to the example of Archbishop Emmanuel Milingo, or the online service “RentaPriest”

He continued: “Our understanding of the psychodynamics of sexual abusers is quite limited, much more limited than we once thought, but it does seem clear that those prone to compulsive or addictive behavior are most likely to ‘act out’ when they are under stress, lonely, and cut off from a social support network — precisely the situation in which dismissed clerics are likely to find themselves.

“The Church might benefit society by removing abusive clerics from ministry but stopping short of dismissing them from the clerical state so that it can at least attempt to monitor their behavior.”

“Balancing the aims of restoring justice, removing scandal and reforming the offender is not an easy task,” Father Beal concluded. “Efforts to achieve a just balance among these ends will open Church authorities to criticism from all sides just as efforts to find a balance in the secular arena has resulted in sharp criticism of secular judges, including the justices of the Supreme Court. But, in an imperfect world, one does what one can. And if we do what we can, perhaps we shall achieve in time that object all sublime of letting the punishment fit the crime.”

Tag: cannon_law

http://abyssum.wordpress.com/2010/06/...unishment/

Sins of the past - child abuse in the Catholic Church

Thu, 10 Jun 2010 00:44:13 +1000

Tag: usa

By Richard Scorer in Abuse Cases

An article I've written for New Law Journal this week:

There has been worldwide publicity recently regarding child abuse scandals in the Catholic Church. In the UK, Catholic abuse cases have already featured in the media for over a decade, and the courts here have become very familiar with civil claims for child abuse.

The Catholic Church (in the form of its constituent dioceses and orders) has vigorously contested damages claims and has sought to utilise every available line of defence. How has the law developed in response to these cases, and what issues remain to be clarified?

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Since civil claims for child abuse first came before the courts in the late 1990s, two areas of contention have stood out. The first is limitation. As Sedley LJ said in the Ablett case in 2000, “It is in the nature of abuse by children that it creates shame, fear and confusion, and these in turn produce silence. Silence is one of the most pernicious fruits of abuse. It means that allegations commonly surface, if they do, many years after the abuse has ceased”. Hence, civil claims for abuse frequently raise limitation issues, perhaps no more so than in Catholic cases where the authority and power of priests can act as a strong deterrent to disclosure. However, after a decade of appellate court litigation, the limitation position in abuse cases is now fairly settled. In the Hoare decision in 2007, the House of Lords unified the limitation regimes applying to cases of direct assault and cases of negligence. Both causes of action are now subject to a primary limitation period of 3 years with discretion for the court to waive the limitation bar in certain circumstances – something courts have shown a willingness to do even up to several decades after the abuse occurred, provided a fair trial can still take place. Whilst the Catholic Church continues to plead a limitation defence to many claims, in reality the scope of this defence has been narrowed by the Hoare decision.

The second main area of contention has been vicarious liability – to what extent is an employer of an abuser liable for abuse committed in the context of employment? Until 2001, no vicarious liability could attach to sexual abuse- it could not be regarded as a mode of carrying out the employee’s duties. Claimants had to prove that the employer was negligent – i.e. that he knew or ought to have known about the abuse or ought to have suspected it. This changed with the decision of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The House of Lords held that vicarious liability could attach to the employer where the employee’s misconduct “was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable”. From the point of view of claimants, this was a significant advance in the law. In many cases, it would no longer be necessary for the claimant to prove negligence by the employer- the simple fact of employing the abuser would be sufficient to create liability.

With a limitation regime relatively favourable to claimants and the principle of vicarious liability now beyond doubt, it was perhaps inevitable that the Catholic Church, facing hundreds of claims for historic abuse, would try to unearth other lines of defence. The main one which has been employed in recent cases is to contest the ambit of vicarious liability. In other words, whilst the principle of vicarious liability cannot be disputed post-Lister, the scope of the principle provides much opportunity for argument, especially given the formulation of the test in the Lister judgement (“so closely connected with employment that it would be fair and just to hold the employer vicariously liable”).

A good illustration of the arguments now being deployed is the recent case of Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256. Maga, a non –Catholic, became friends with a paedophile priest, Father Clonan, through a shared interest in sports cars, was invited by Clonan to the church disco, and was paid by Clonan to do various jobs like cleaning the presbytery at Clonan’s church, although other jobs were unrelated to church activities. The Claimant was sexually abused by Clonan including in the presbytery. At first instance, the court held that the Archdiocese was not vicariously liable for Clonan’s conduct with this claimant- the claimant was not a Catholic. The Court of Appeal overturned the decision, emphasising the priest’s duty to evangelise, which involved befriending non Catholics and gaining their trust: vicarious liability would therefore apply. In the words of Longmore LJ: “For centuries the Church has encouraged lay persons to look up to (and indeed revere) their priests. The church clothes them in clerical garb and bestows on them their title Father, a title which Father Clonan was happy to use. It is difficult to think of a role nearer to that of a parent than that of a priest. In this circumstance the absence of any formal legal responsibility is almost beside the point”.

Disclosures of abuse in the Catholic Church show no sign of abating, and claims are likely to continue in large numbers. With limitation settled, and the principle of vicarious liability beyond argument, it seems likely that the Catholic Church will continue to try to contest the scope of the vicarious liability doctrine in further cases. As Maga demonstrated however, the courts may have little sympathy for the church’s attempts to escape liability on this basis.

Richard Scorer, Head of Personal Injury, Pannone LLP

http://blog.pannone.com/personal-inju...hurch-407/