ALECOMM

One way Pope Francis could move ahead with his aim of curbing clergy sex abuse in the worldwide Catholic Church would be to insist that the Holy See comply with the international human-rights treaty it signed to protect the rights of the child. Since nearly every country in the world (other than the United States) has signed the United Nations Convention on the Rights of the Child, the 1989 treaty sets a clear international standard for Catholic bishops everywhere. 

The treaty requires this: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Responding to complaints from survivors of sex abuse in the United States, Mexico, Australia, and Western Europe, the United Nations Committee on the Rights of the Child determined that the Holy See had violated that standard. “The Committee is particularly concerned that in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above the child’s best interests, as observed by several national commissions of inquiry,” it said in a 2014 report.

Five years later, the passage of time shows how deeply flawed the Vatican’s response was. The Vatican asserted that it had “carefully delineated policies and procedures designed to help eliminate such abuses and to collaborate with respective State authorities to fight against this crime.” It’s clear those policies were porous and follow-through was sluggish. Today, Vatican officials are still looking for the elusive “turning point.” Hopes are now pinned on February’s Vatican summit with the presidents of bishops’ conferences, and on subsequent measures Pope Francis has announced.

In the meantime, the Papal Commission for the Protection of Minors made the Convention on the Rights of the Child the foundation of guidelines that, in 2016, it sought for adoption by bishops’ conferences and religious orders around the world. But Marie Collins, a former member of the papal commission, said in an email interview that Vatican authorities would not permit the guidelines to be sent directly to the bishops’ conferences. “The Commission was told [the guidelines] could be put on the websiteand recommended as a resource,” she said, adding that this fell short of what the commission intended: that bishops be required to use the guidelines as a template for their procedures to protect children from sexual abuse.

The papal commission still promotes the UN document on its website, underlining the sentence “The Holy See is a signatory to this Convention.” At the same time, the UN committee’s criticisms continue to be explained away at the Vatican, and the Holy See has missed the UN’s deadline to respond to questions its experts still have.

Despite some recent progress, the reforms Pope Francis has made in the five years since the UN report was issued—in March, he required that clergy and religious report sex-abuse allegations to church authorities, and in 2016 he set out how church law could be used to remove negligent bishops—fall short of the changes UN experts urged. These experts called for the Vatican to comply with the treaty by creating clear rules for mandatory reporting of sex-abuse allegations to law-enforcement authorities, and ensuring “that all victims obtain redress and have an enforceable right to compensation.”

The Holy See Press Office and the papal nuncio at the UN in Geneva, who represents the Vatican in the UN human rights inquiries, did not respond to requests for comment. But I asked the Rev. Hans Zollner, who has been a point person for Pope Francis on the issue of clergy sex abuse, about the UN Convention on the Rights of the Child after he gave a presentation in New York on March 26.

Why can’t the pope just require that bishops around the world adopt the standards set in the UN Convention on the Rights of the Child, which have been accepted by nearly every country in the world? “You don’t need to repeat that because this is in the Gospel,” Zollner responded, adding, “the Catholic Church in India, in Africa, in Asia is the one promoter of child dignity more than any other institution.”

I asked again whether it would make sense to require that bishops adhere to certain basic standards. Zollner, who has responded to attacks on Pope Francis from all sorts of critics, and who has to cope with varied levels of support from different Vatican offices, sounded a touch exasperated. He maintained that the standards already exist. “The point is, how do you live up to it?” he said. “And this you cannot enforce by policing. Ultimately that is the challenge. We have everything set. We don’t need a new tribunal for charging the negligence of bishops because it is there. We can already do that. The point is: do you really want to do that, and how do we do that, and how do we communicate it because it has been done, but it has not been communicated.”

The German Jesuit has traveled to dozens of countries and helped organize two major conferences in Rome to get the world’s bishops on board in the effort against clergy sex abuse of minors. He has been trying to convince bishops in parts of the developing world that this is not simply a Western problem.

But survivors of clergy sexual abuse have criticized what they regard as foot-dragging at the Vatican, and the UN has been open to their petitions. “Rape and torture are crimes around the entire world, so I don’t think this is a question of cultural values,” said Katherine Gallagher, an attorney at the Center for Constitutional Rights who has been active in bringing the survivors’ petitions to UN human rights agencies since 2010, representing the Survivors Network of Those Abused by Priests (SNAP). 

Since the Holy See’s immunity as a sovereign state has made it difficult to hold the Vatican accountable in national courts, Gallagher first brought a case to the International Criminal Court and later to the UN committees that monitor the Convention on the Rights of the Child and the Convention against Torture.

At UN sessions held in Geneva, the chief assertion from the Vatican has been that the two human-rights treaties it signed apply only to Vatican City and papal diplomats, not to church operations around the world. “All State Parties should be troubled by the fact that the Committee, contrary to the Treaty and basic principles of international law, has attempted to expand, in a unilateral and systematic way, its mandate, and, in turn has created new treaty obligations for State Parties,” the Secretariat of State told the UN’s Committee against Torturein 2015. It argues that implementing the treaty outside Vatican City “could constitute a violation of the principle of non-interference in the internal affairs of States.”

In May, officials at Great Britain’s Independent Inquiry into Child Sexual Abuse expressed frustration that after six months of prodding the Secretariat of State for information, it remained unclear whether it would comply or hide the Vatican’s role behind a veil of diplomatic immunity. In a May 23 hearing, the committee counsel said the investigation will consider “the culture of  the Roman Catholic Church; the role of the Holy See; and future safeguarding arrangements within the Roman Catholic Church.”

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse faced similar constraints in 2014 when it sought “documents related to the extent to which Australian clerics accused of child sexual abuse had been referred to the Holy See (in particular, the Congregation for the Doctrine of the Faith) and the action taken in each case.”  

The Vatican handed over information on some specific cases but the big picture remained obscured. In a letter sent through diplomatic channels, the Vatican Secretariat of State said that an across-the-board request for information on all cases involving Australian priests intruded on its confidential judicial process. It added that the “substantial burden of locating, reviewing and copying all files regarding every accused Australian cleric appears inconsistent with international practice.”

The UN Committee against Torture said in 2015 that this conflicts with the Convention against Torture, which requires states to “afford one another the greatest measure of assistance” in investigating conduct that violates the convention, “including the supply of all evidence at their disposal necessary for the proceedings.”

Contrary to the Vatican’s protests, international law has been developing to view human-rights treaties as covering not only what happens inside a country’s borders but also other places where it exercises “effective control”—for example, the detention center the U.S. government runs in Guantanamo. The United Nations Human Rights Committee established this a decade before the 2014 decisions that the Vatican contests as unfair.

“These treaties talk about jurisdiction and not just territory,” said Beth Van Schaack, a visiting professor of human rights at Stanford University Law School and a former deputy in the U.S. State Department’s Office of Global Criminal Justice. She said the law is clearly moving toward holding states accountable for actions beyond their borders. 

By that reasoning, the “jurisdiction” is wherever a country exercises “effective control,” which can be beyond its borders—for example, when Cuba downed two small civilian planes in international air space in 1996. But another key part of the Vatican’s legal argument is that it doesn’t really have authority over local churches—it lacks “effective control” over diocesan bishops.

And yet, various national investigative panels have found that it’s not possible to understand the clergy sex-abuse scandal without accounting for the Holy See’s influence over local bishops. An Irish commission’s 2011 investigation of the Cloyne diocese noted that the Vatican’s negative reaction to a set of standards the Irish bishops adopted in 1996 “was entirely unhelpful to any bishop who wanted to implement the agreed procedures,” making it easier for prelates who were so inclined to ignore it.

It is true that in church teaching—reflected in theology texts, canon law, and magisterial documents—bishops do not report to the pope as if they were ecclesial branch managers. But in practical terms, the Vatican arguably exercises “effective control” over what bishops can or cannot do to protect children from sexual abuse. The Holy See sets church law and determines when it is broken. It controls the disciplinary process for priests and its secret records. It runs tribunals that decide when and how to recommend discipline for bishops, a power reserved to the pope. And it has used its veto power to redraw bishops’ plans for responding to the outcry over sexual abuse.

In a letter published April 10, Pope Emeritus Benedict XVI acknowledged that as early as the 1980s, the Vatican rejected requests from U.S. bishops to let them take tougher action against priests who abused children. “Rome and the Roman canonists at first had difficulty with these concerns; in their opinion the temporary suspension from priestly office had to be sufficient to bring about purification and clarification,” he wrote. “This could not be accepted by the American bishops, because the priests thus remained in the service of the bishop, and thereby could be taken to be [still] directly associated with him.”

The pope emeritus said it didn’t become possible to expel a predator priest from the priesthood until authority over priests’ offenses was moved from the Congregation for the Clergy to the Congregation for the Doctrine of the Faith (which he headed) in 2001. “But both the dioceses and the Holy See were overwhelmed” by the number of cases that had to be processed, he wrote. “Because all of this actually went beyond the capacities of the Congregation for the Doctrine of the Faith, and because delays arose which had to be prevented owing to the nature of the matter, Pope Francis has undertaken further reforms.”

The former pope’s letter demonstrates how the Vatican has stood in the way of its treaty obligation—“the best interests of the child shall be a primary consideration”—as well as a biblical obligation that Benedict notes: Jesus’ mandate to protect “the little ones” (Mark 9:42). In legal terms, this dysfunction within the Curia—within the walls of Vatican City—violates the UN treaties.

“There is a direct chain of command and if the Vatican says something, it will get done,” said Van Schaack. 

The Vatican has posed a very dense thicket of religious, civil, and international laws that obscure efforts to hold it accountable for its part in clergy sex abuse. For example, one first has to define what the Holy See is: the government of a city-state that is smaller than a golf course, or the seat of the universal church. Many a scholarly article has delved into the Holy See’s unique international status; the takeaway for abuse survivors is that the Vatican’s highly technical legal positions are contrived and steeped in clericalism.  

“It’s really the Holy See that acceded to the Convention on the Rights of the Child, and then they narrow it down to ‘and that means that we’re just responsible for reporting what goes on within the walls of the Vatican City state,’” said Helen McGonigle, an American attorney and sex-abuse survivor who filed papers in the UN proceedings and attended hearings in Geneva. “And that’s where I just said, ‘You’ve got to be kidding me.’ And that’s the way the commission reacted.”

The case of McGonigle’s abuser, the notorious Belfast-born priest Brendan Smyth, reflects how the clergy sex-abuse scandal so often crosses national borders. Smyth sexually abused McGonigle while assigned to duties in Rhode Island. He also abused children in Northern Ireland, the Irish Republic, Scotland, and Wales. McGonigle said that Smyth had sexually abused a boy in Italy while studying before he was ordained; his superior in the Norbertine order was based in Belgium. “Everybody kind of knew…that he was a problem,” she said of Smyth. In her complaint to the UN in behalf of a group of European survivors, McGonigle said that the Holy See had issued a decree in 1968 that ordered Smyth not to hear confessions and not to leave his abbey unattended. But the decree was not enforced—even though a priest contacted the papal nuncio to Ireland about Smyth’s further abuse—and he continued to abuse children until Christmas Eve of 1993. Smyth died in 1997, a month into a twelve-year prison term in the Irish Republic.

While the Vatican resists, the UN human-rights committees have been prodding other countries to do more to stop Catholic clergy from abusing minors and to investigate earlier abuses. That includes prompting Ireland to investigate the Magdalen laundries; urging Italy to review the 1985 revision of its Lateran pact with the Vatican, which specifically exempts ecclesiastics from divulging information to the authorities; and noting to Belgian officials that their own investigative commission found that clergy abuse of minors is “persistent.”

The process moves slowly, and the legal morasses it creates are numbing. But Gallagher, the Center for Constitutional Rights attorney who brought SNAP’s complaint to the UN, says she’s seen much change since she got involved with the sex-abuse issue in 2010. “There’s a great evolution of the reaction” she gets, she said. In the beginning, few saw the abuse as a global issue, and it wasn’t necessarily considered rape. She added: “The surprise or questions I would have gotten nine years ago I wouldn’t get anymore.”