Defending the Holy See against abuse claims in U.S.

In recent years, lawyers for victims of Catholic clergy sex abuse have tried to make the case that not just dioceses are liable for sexual abuse claims, but that the Holy See is as well. To do that, though, the courts in the United States would have to take jurisdiction over the Vatican, which is a foreign state recognized by the United States. 

Currently, there are three cases in the United States against the Holy See, each with a different theory. In the Murphy case in Wisconsin, the plaintiff says the Church is so much like a “commercial” operation that the court should take jurisdiction. In the Doe case in Oregon, plaintiffs’ theory is that a priest who committed the abuse was an employee of the Holy See. And, finally, in the O’Bryan case in Kentucky plaintiffs say bishops are employees (or officials) of the Holy See. 

Representing the Holy See in all of them is attorney Jeffrey S. Lena, a 51-year-old sole practitioner in Berkeley, Calif., who began representing the Holy See in cases in the United States in 2000 after a career trajectory that included teaching university-level history in the United States and comparative law in Italy. 

Our Sunday Visitor: You’ve said that you’re motivated in these cases by two things: because it is simply factually incorrect that the Vatican was involved in or caused the harm suffered by the victims in any of these cases, and also because it is important to defend the rights of foreign sovereigns in United States courts. Sovereign immunity seems to be the cornerstone of your defense. Why is it so important for the Holy See to insist on it? If the accusations are false, why not just address them directly? 

Jeffrey S. Lena: In a legal action, before you get to what are called the merits of a case — basically “what happened” — a court must examine a different and more fundamental question: Does the court have the power to hear the case? This is known as “jurisdiction,” and it is an especially sensitive question whenever the courts of one country try to take jurisdiction over another country. The circumstances when this can take place are very limited and the law imposes strict guidelines. 

In these cases against the Holy See, it is our view, and our defense, that U.S. courts do not have jurisdiction. The principle is an important one, and it runs in both directions: Clearly, the United States also believes that jurisdiction against it in foreign courts should only be taken in very limited circumstances. 

The plaintiffs’ attorneys would like to essentially get past this step as soon as possible to try to examine the inner workings of the Holy See in regards to things that really do not have anything to do with these individual cases. I think that is just wrong under the law. 

As for the merits of the cases, it is important now for the press to turn a searchlight on plaintiffs’ attorneys and ask this question: What concrete evidence do you really have of Holy See involvement in decisions in the dioceses that led to abuse? In the Doe case in Oregon, for example, it would be fair to ask, isn’t it true that the Holy See never even knew who the priest who committed the abuse was, and never made any decisions about him whatsoever? 

OSV: Both your legal friends and foes describe you as having a retiring courtroom style, but say you aggressively defend your client’s interests, making every possible motion and objection, like insisting that documents served on the Vatican be prepared and served correctly. That is obviously your job, but some question whether this approach is consonant with a Church that is largely about mercy and reconciliation. How do you reconcile your job duties with your client’s mission? 

Lena: Let me start out again with the international relations/sovereign immunity point: The Holy See requests no more than what the United States requests in its own dealings with foreign authorities. Non-lawyers — and some plaintiffs’ attorneys — view a defense like service of process as merely “technical.” It is not. In fact, the United States has been very specific in saying that serving process on a foreign sovereign correctly is a rule designed to help the foreign sovereign understand the nature of the action against it and to prevent “irritants” in foreign relations, and also to encourage the foreign sovereign to appear in U.S. court and defend the action. So, standing up for the importance of proper service is really a part of ensuring that plaintiffs’ attorneys are following the rules of international relations created by the United States itself. After all, the Vatican deserves just the same respect as other sovereign states from the courts of the United States, and the same respect that the United States deserves from other sovereigns. I don’t see that as in any way inconsonant with the values of the Church. 

There are a couple more points to be made, I think. First, every person or entity is entitled to the defenses that the law affords. And second, when cases are brought based on false theories and with a lack of evidence, it is doubly important to defend them. Nobody is saying that people who have brought these cases were not harmed.  

But the legal question is a different one — is the Holy See really the responsible party here? And I say, with all due respect to the victims in these cases, that the answer is no. I do not doubt the sincerity of victims’ belief that the Holy See is responsible, but I believe that they are mistaken. 

So, I guess I would say in conclusion to your question that those who are saying that the Holy See’s defense of itself against false claims is somehow inconsistent with the teachings of the Church are being unfair and unreasonable. Even the Holy See is entitled to fair treatment by a court. 

OSV: Some atheists in Britain have announced they’ve asked human rights lawyers to look into ways to get an arrest warrant for Pope Benedict XVI when he travels there this year. They claim he doesn’t have diplomatic immunity because “he is not the head of a state recognized by the United Nations,” despite the fact he’s on a state visit 

Lena: First off, of course the fact that the people with these ideas may be atheists is not germane to the legal question. They are simply wrong as a matter of law. The pope is a sitting head of state recognized as such in both the United States and Great Britain. Both countries entertain normal and cordial relations with the Holy See, and the Holy See performs critical diplomatic roles throughout the world. It is a real and important participant in international relations, despite the Vatican’s diminutive size. 

The claim of “universal jurisdiction” to which these people refer requires criminal activity in violation of international law. That is simply not credible. Such ideas express political beliefs or critical views of the Church rather than sound legal thinking. 

They have a right, of course, to their beliefs, but they’re disseminating misunderstandings of the law itself, and that is no public service.

John Norton is OSV editor.

Smoking Gun? Vatican’s Infamous 1962 instruction (sidebar)

At the root of allegations against the Vatican in the Kentucky and Wisconsin cases is a 1962 document known as Crimen sollicitationis , addressed to bishops, that contained confidentiality provisions to be applied in particular cases of clerical sex abuse, including against minors. Plaintiff’s lawyers think that the document is proof that the Holy See ordered bishops not to report clerical sex abuse of minors to civil authorities, even in jurisdictions where reporting was required. 

But in a declaration prepared in defense of the Holy See’s motion to dismiss the Kentucky suit, Edward N. Peters, a professor of canon law at Sacred Heart Seminary in Detroit, says that not only is there no evidence that Church officials there were even aware of the 1962 document, but the document would not have prevented them from reporting abuse to police in any case. 

  •  The document provides optional norms to bishops for handling clerical sex abuse cases under canon law, an ancient legal tradition that shares with its modern civil counterparts in Europe a requirement of confidentiality, not unlike the U.S. model of grand juries, in order to ensure fairness and the ferreting out of the truth. 
  • Canon law assumes that crimes that are “mixed forum” — offenses both for the Church and civil society, like rape, murder, theft, sex abuse — will be handled both by ecclesiastical authorities and civil authorities, but it is untrue that there is a necessary choice between the forums or that canon law can trump the civil law. 
  •  Even bishops who were aware of the confidentiality requirements of the canon law and the 1962 document always remained free to alert civil authorities before Church proceedings took place.

Bishops are Pope's Employees? (sidebar)

In Kentucky, plaintiffs are trying to draw the Vatican into U.S. courts by saying that bishops are the pope’s employees or officials — making him ultimately liable for their mishandling of abuse cases. 

The Vatican’s lawyer, Jeffrey S. Lena, argues that even by U.S. legal standards, they’re not. After all, the pope doesn’t pay bishops salaries, withhold taxes, provide them tools or a place to work, exercise day-to-day oversight or give them an employment contract, and perhaps most fundamentally, he notes, bishops in no sense work “on behalf of” the pope. 

But it is also wrong from the Church’s own historical, legal and theological understanding of the relationship between the “Supreme Pontiff” and the “successors of the apostles,” according to canonist Edward N. Peters.

  •  The Second Vatican Council explicitly says bishops are not “to be regarded as vicars of the Roman Pontiff.” 
  •  Out of the 1,752 canons of Church law, hundreds “reflect and reinforce the discretionary responsibilities and capacities of the diocesan bishop” as having “ordinary,” “proper” and “immediate” authority in his diocese — meaning it is they who have responsibility for the priests in their diocese and their conduct. 
  • The pope’s “supreme, full, immediate, and universal ordinary power” under canon law is limited and primarily serves to ensure unity in faith in the Church, not an administrative model. Note that Church law “requests” that bishops tender their resignations to the pope at 75 or when they find themselves unable to fulfill their duties, in contrast to the bishops’ power to remove priests from parishes.