A famous American Jewish lawyer would seem an unlikely defender of the Pope, but Harvard Law Professor Alan Dershowitz is just that.
Dershowitz was brought to Australia recently to debate human rights lawyer Geoffery Robertson QC, who is leading a secular humanist campaign to prosecute Benedict XVI for the sexual abuse of children by Catholic priests. The big debate, at the Festival of Dangerous Ideas at the Sydney Opera House, was kept low key, thanks partly to Robertson’s insistence that it not be televised — apparently so as not to steal the limelight from a second debate planned to be held in London.
But Dershowitz put his arguments on public display on national television, speaking on the Australian Broadcasting Corporation’s Lateline program. “I think Pope Benedict has probably done more to protect young children since becoming Pope than any previous Pope,” he declared.
Dershowitz went on to insist that non-Catholics should not get deeply involved in the governance of the Church. “It relates to issues of separation of Church and State,” he said. “I think it would be a terrible mistake to put the Pope on trial.”
Dershowitz’s position contrasted heavily with much of the media commentary following the launch of Robertson’s book The Case of the Pope, which lists 245 criticisms of the Holy See, including its right to sovereignty and the Pope’s right to immunity from prosecution by international courts. Most commentators have treated Robertson’s views with respect, with the notable exception of the editor of online magazine Spiked, Brendan O’Neill, who has written that the Pope’s claims to infallibility seem “almost meek in comparison”.
Dershowitz has risen to prominence partly through his defence of high-profile clients like Claus von Bulow, Mike Tyson and O.J. Simpson. (On Lateline he made it clear that he defended Simpson because, as a civil libertarian, he is opposed to the death penalty and that he is no friend of Simpson’s, nor does he approve of his behaviour.)
Dershowitz can’t be written off as some kind of papal groupie. In the past he has been critical of the church and the behaviour of a number of cardinals. In fact he actually sued Cardinal Glemp, the primate of the church in Poland, for what he saw as “virulent anti-Semitism”.
But he expressed admiration for Benedict XVI’s refusal to try to shift blame for the scandal of priestly paedophilia outside the church: “He’s blamed the scandal on the Church itself, on bishops, on priests, he’s sought forgiveness, he’s taken steps to change everything. And I think today, being a young Catholic altar boy is a very safe place to be — not in the 1970s and ’80s, but today the Church has taken real responsibility and is looking forward.”
Such a realistic appraisal of what has been taking place in the Catholic Church under Pope Benedict has been missing from most media discussion of the scandal, particularly among the Church’s critics. Asked if as a lawyer he thought there was any merit at all in the case that Robertson has been making so vocally on the world stage, Dershowitz answered bluntly: “No, I don’t.”
He also made an obvious point that has been left out of much public discussion of paedophilia in the Catholic Church — that there have been comparable abuses in other religious institutions, in schools, and in families. “It’s a very widespread problem,” he said. “We’re beginning to come to grips with it and understand it. It is one of the most under-reported crimes in history, child abuse. It’s also an over-reported crime. There are people who are falsely accused. And I’m very concerned that Geoffrey Robertson, who is a great lawyer, is a little insensitive to the rights of priests and others falsely accused, and there have been many such cases as well. There has to be a balance struck.”
Robertson’s view has been very different. He asserts that the Pope has protected perpetrators in a way that amounts to a criminal offence under international law. “He’s wrong,” said Dershowitz. “International law deals with war crimes, it deals with systematic efforts by governments, for example, in the former Yugoslavia and Rwanda, in Darfur and Cambodia. This is not in any way related to that. And I think, I’m afraid to call this a war crime or some kind of international crime [because it] will water down the very important concept of crimes against humanity. This is not a crime against humanity, this is a series of crimes by individual priests and others throughout the world and failures by institutions to come to grips with it quickly enough. But it’s very different from systematic attempts to use rape or murder as part of a genocidal program.”
Lateline’s anchor, Tony Jones, persisted, asking: “What about the cover up part of it? It may not be a crime against humanity, but it’s a presumably crime in most countries.”
“It’s not,” Dershowitz said. “It’s a crime in very few countries to fail to report a crime… It’s almost never prosecuted. The crime occurs when you take explicit steps to try to prevent law enforcement from finding the criminals, and there are some priests who did that, who pushed people from parish to parish. And they should be prosecuted, but there’s no evidence that that came from the very top and that was in any way attributable to the Pope.”
Dershowitz has previously said that there are important traditions that made it difficult for the Church to move quickly and aggressively in response to complaints of abuse. He explained: “One of them is obviously confidentiality. The confidentiality of the priest-penitent relationship is very crucial to the Church. Now, Geoffrey Robertson doesn’t like that, but as non-Catholic — we’re both non-Catholics — we’ve no right to tell the Church how to conduct its business. It’s also a Church that believes very strongly in rehabilitation, reconciliation, forgiveness and ultimately leaving it to God to judge. And third, it’s a Church that moves very, very slowly. It’s the old story of when Mao was once asked ‘Was the French revolution a success?’, he said ‘Well, it’s too early to tell.’ And the Church deals with issues not by years or even by decades, but by centuries and millennia. And to expect the Church to move as quickly as other more facile institutions is to misunderstand the nature of the Catholic Church.
Asked to comment on the fact that some priests had escaped prosecution and punishment for their crimes, Dershowitz said that in these cases it was largely the fault of law enforcement: “Law enforcement had no barriers to going in and aggressively prosecuting these crimes. And many prosecutors just refused to do it. They may have been afraid of the Church, they may have been afraid of their constituents, but you don’t blame the Church when law enforcement fails to prosecute. When you had bishops or cardinals, if there were any, who took efforts, took steps to get priests from one jurisdiction into another, that would be criminal conduct.”
Robertson has claimed that as head of the Congregation for the Doctrine of the Faith, the then Cardinal Ratzinger protected abusers through the Church’s canon law and that he ignored the victims. But Dershowitz said he didn’t think that view was right. “I think that many people who know him very well think he that he had a real wake-up call when he took that job and he saw how extensive the abuse was within the Church and throughout society, and he took steps, took steps that a churchman should be taking, steps to try to rid the Church of people, he changed the rules as to reporting these things to civil society and I think on balance he did a fairly commendable job.”
If you are interested in reading the full transcript, you will find it here.
Dershowitz’s defence of the Pope came across as being more effective than anything that most Catholics have managed to date. It seems a little peculiar that someone who could be seen as a possible antagonist is able to mount a better defence of the institution than its friends.