British barrister
Neil Addison has studied the Vatican documents relating to the investigation of
complaints of child abuse and come up with some interesting insights about criminal conspiracy and secrecy.


General
introduction

It has been
suggested in various newspaper articles, media interviews, blogs etc that documents
revealed during the Catholic Church child abuse scandal have implicated the
Church in general and Pope Benedict in particular in a criminal conspiracy to
facilitate child abuse or alternatively to obstruct justice by failing to
report allegations of child abuse to public authorities.

In looking at
these allegations I shall principally rely on broad legal principles drawing on
examples within English Common or statute law and international law. Though
every country has its own particular laws and legal system and the details
differ from country to country it is the case that legal broad principles are
generally the same across civilised legal systems. In addition by definition if
something done by the Church could be held to constitute a crime within one
country only by reason of the specific wording of the law of that country then
by definition it can hardly constitute an international criminal conspiracy
spread across several countries.

The Church
Documents I shall deal with are “Crimen Solicitonis” issued to all Bishops of
the Church in 1962 and “De Delictis Gravioribus” also issued to all Bishops of
the Church in 2001 and signed by the then Cardinal Ratzinger; this document was
accompanied by a covering letter Sacramentorum Sanctitatis Tutela signed by
Pope John Paul II. I shall refer to these documents as the “1962 letter” and
the “2001 letter”. As a side point I note that the 2001 letter was published in
the 2001 issue of the Vatican Year Book Acta Apostolicae Sedis for 2001 which
is a document that has always been publicly available and not secret, and the
2001 letter specifically refers to the 1961 letter


Conspiracy etc

In English Statute
Law the crime of conspiracy requires two or more persons to agree to carry out
a course of conduct which “will necessarily amount to or involve the commission
of any offence” whilst the Common Law definition of conspiracy accepted by the
US Supreme Court involves “an agreement to commit an unlawful act” and the
Canadian Criminal Code requires “an intention in common to carry out an
unlawful purpose”

In his Guardian
Article suggesting that the Pope should be arrested
when he visits Britain
Geoffrey Robinson QC accused the Pope and the Church of “aiding and abetting
sex with minors.”. Under English Law “aiding and abetting” requires the accused
person to perform “an act capable of encouraging or assisting the commission of
an offence” either “intending” or “believing” that the act will “encourage or
assist its commission”  similar
provisions apply in the criminal laws of Canada Australia and the USA.

Therefore in order
to have the basis for a criminal prosecution either of conspiracy or aiding and
abetting it is necessary to prove that the defendant (in this case the Pope
and/or other Church officials) did acts (actus reus) which helped sex offenders
to commit their crimes and/or to evade justice and that the intention (mens
rea) of the Church was to assist in the commission of those crimes or the
evasion of justice. In order for there to be a conviction for criminal conspiracy
or aiding and abetting, under English law,there must be a deliberate intention
that a crime should be committed and my reading of the law in USA Australia and
Canada is that the rules are the same in those jurisdictions.

The importance of
intention to assist in a breaking of the law (mens rea) was emphasised in the
House of Lords case of Gillick v West Norfolk and Wisbech Area Health Authority
where the House of Lords held that supplying contraceptive advise to under 16
year old girls did not constitute the criminal offence of aiding and abetting
unlawful sexual intercourse even though (from a lay point of view) that would
be the natural and inevitable consequence of the doctors actions

Therefore in order
to prosecute the Pope or the Church on the basis of the 1962 or 2001 letters it
is necessary to show that the intention behind the letters was to assist crime
and careful reading of both letters show that they were in fact mainly aimed at
dealing with acts which were not criminal


1962 and 2001 letters:
general points

When examining the
two letters it is important to bear in mind that they apply to the Church
throughout the world and as such attempts to apply consistent internal Church
rules to countries with a range of different legal rules and cultures. In the
2001 letter for example the age of a minor is set as up to 18 whilst across the
world the legal age of consent for sexual intercourse can range from 13 in
Spain or Nigeria to 18 in Swaziland or Idaho; similarly whilst consensual
homosexual sex between adults is legal in most countries it is still illegal in
many countries and indeed was illegal in England until 1967

More importantly
the two letters only deal with the internal procedures to be adopted by the
Church in deciding whether a Priest accused of acts (which might or might not
be criminal in the country in which they occur) should be disciplined by the
Church and possibly removed from the priesthood. Nowhere in the letters is
there any instruction that the civil authorities (Police) should not be told
about allegations of criminal behaviour.

There is, of
course, the criticism that neither letter gives direct and clear instructions
that the civil authorities must be informed however that ignores the fact,
already mentioned, that many allegations may be criminal in one jurisdiction
but not criminal in another and many of the acts mentioned in the 1962 and 2001
letters are not criminal in any jurisdiction. For example a Priest who has sex
with a 14 year old girl in Spain does not commit a crime but would in England,
a Priest who has an adulterous heterosexual relationship would not commit a
crime in England but would commit a crime in Iran which could lead to him and
the woman being stoned to death, similarly with homosexual behaviour by a
Priest. All of those would be regarded by the Church as offences contrary to
the two letters but would be regarded in entirely different lights by law
enforcement officials in different countries.

It is also
important to remember that the 1962 letter was issued in 1962, when
Communism ruled much of the world and when for it to be known that a person
attended Church could lose them their job. It was only 4 years before the start
of the Cultural Revolution in China and only 6 years after the crushing of the
Hungarian uprising and 6 years before the crushing of the Prague Spring. In
those circumstances it is hardly surprising if Church instructions did not
require that State authorities be automatically informed of any allegations


Criminal
Conspiracy

Though the main
attention on the 1962 letter has concentrated on the issue of Child Abuse any
suggestion that it is intended to assist in a conspiracy of child abuse has to
take account of the fact that the 1962 letter primarily deals with
“Solicitation in the Confessional” which would not constitute a criminal
offence in most legal systems. The letter then mentions in para 71 Homosexual
relationships, and deals in para 73 with sexual relationships with minors or
with animals and applies the same rules to those offences as it has applied to
the (non criminal) practice of solicitation in the confessional.

Therefore if the
1962 letter is to be regarded as evidence of a criminal conspiracy that is
inconsistent with the fact that its primary focus is on an activity which is
not criminal because if the primary focus is on an activity which (though
reprehensible) is legal then there is no evidence that the intention of the
document or the drafters of the document was to aid unlawful acts.

This particular
analysis is strengthened by the 2001 letter which besides the offences listed
in the 1962 letter also deals with such non-criminal acts as “the taking or
retaining for a sacrilegious purpose, or the throwing away of the consecrated
species (Host)” (Art 2 1.1 “consecration for a sacrilegious purpose of one
matter (ie bread or wine) without the other in a Eucharistic celebration “ Art
2.2. In simple terms it is impossible to establish a case of criminal
conspiracy based on a document which is primarily focused on dealing with acts
which are not in themselves criminal.

Secrecy

An important part
of the allegations involving the 1962 and 2001 letters involve the “oath of
Secrecy” required of those who give evidence or participate in one of the
Churches own Courts dealing with allegations against a Priest. As a lawyer in
the Anglo Saxon Common Law tradition I can understand that criticism however
once again it is important to remember that both letters apply throughout the
world and therefore to countries with vastly different legal traditions. In
Portugal for example Article 86 of the Portuguese penal code imposes “Judicial
Secrecy” on all witnesses in a criminal investigation, a legal rule which
seemed incomprehensible to the British Media during the Madeleine McCann case

Similarly in
England prior to a trial there are extensive legal restrictions on what the
media can report but no such restrictions apply in the United States

More pertinently
perhaps it must be remembered that in general Church Tribunals have no legal
standing within their individual countries and without a promise of secrecy it
may be difficult if not impossible for them to operate. If, for example, a
Priest was facing an allegation of sexual abuse which, for whatever reason, was
not being prosecuted in the state courts then witnesses who gave evidence could
potentially be sued by him for slander or, in some countries, possibly even
prosecuted for criminal libel. In other jurisdictions the party making the
complaint could possible face execution (if the evidence related to an
adulterous or homosexual relationship) or social ostracism. Requiring an oath
of secrecy can therefore be justified as providing both witnesses and also the
accused with some protection for their reputation and, in some countries, their
personal safety.

In England Police
Disciplinary Tribunals sit in secret. In April 2010 it was discovered that 12
years previously a Police Constable had been convicted of assaulting a suspect
but had not been dismissed, he subsequently went on to seriously assault a 19
year old female suspect. Though there was criticism of the Police there was no
suggestion that the decision by the (secret) Disciplinary Tribunal was in any
way illegal.

Neil Addison
is a barrister in the north west of England. He was a Senior Crown Prosecutor
for a number of years

Michael Cook

Michael Cook is the editor of MercatorNet.