Could the Vatican face racketeering charges for harboring abusive clergy?

RIO DE JANEIRO, Brazil — Earlier this year, federal prosecutors in Manhattan made history by arresting officials at the Federation Internationale de Football Association, or FIFA, on charges of racketeering and money laundering.

The case, a groundbreaking example of US authorities policing far beyond America’s borders, raised an interesting question: If prosecutors could target FIFA — an organization headquartered outside the US — could they also take aim at the leaders of another sprawling international enterprise, say, the Roman Catholic Church? 

The sex crimes that Catholic priests have committed across the globe are arguably far more harmful than anything FIFA executives are accused of. Thousands of priests been accused of destroying the innocence of society’s most vulnerable individuals: children. And in many cases, the church hierarchy has looked the other way, or even obstructed justice — a crime punishable under racketeering statutes. Yet throughout decades of abuse, the Holy See — the church’s central government, housed at the Vatican — has evaded legal consequences.

Objectively, the sex abuse crisis has been destructive for the church. Billions of dollars have been paid out to survivors of sexual abuse by clergy, leading some of the largest Catholic dioceses in the United States to declare bankruptcy. Dozens of priests have been criminally convicted and thrown in prison. But all of this has played out at the local level.

Despite aggressive efforts to put the pope and his senior leadership on trial for concealing priests’ sex crimes, to date not one Vatican official has been successfully sued or jailed, and the Vatican’s coffers have remained untouched — largely thanks to esoteric legal arguments and diplomatic immunity.

The Vatican remains a legal fortress for anyone suspected of aiding predator priests. In some cases, survivor advocates say the Rome-based enclave of Vatican City has even served as a literal sanctuary for prelates: Archbishop Josef Weselowski, for instance, was whisked off to the Vatican following allegations that he abused young boys. The move sheltered him from prosecution in the Dominican Republic.

Leading legal experts tell GlobalPost that there are three main strategies in seeking justice against the Holy See:

• Suing in civil courts: Attorneys, primarily in the US, have filed civil lawsuits directly against the pope and the Holy See, attempting to make the church pay up for the sins of abusive clergy. Although international organizations and corporations are successfully sued all the time, so far the church has prevailed in all cases.
• Seeking justice at the International Criminal Court and United Nations: Given the Holy See’s unique status as something between a country and a multi-national organization, lawyers have tried to put church leaders on trial in the International Criminal Court (ICC) in The Hague. Those efforts have failed, but the United Nations has taken a stern approach to the Holy See’s management of sexual abuse cases.
• Prosecuting in criminal courts: With the political will, an ambitious US Attorney could attempt to bring criminal charges against Holy See officials or even the pope, in an action akin to the FIFA prosecutions. This hasn’t happened yet, and for political reasons, it’s unlikely to happen anytime soon.

Let’s take a closer look at each of these.

Civil liability: Targeting the Vatican’s fortune

Much of the legal action against the Catholic Church in recent years has been about money.

Spurred on by angry abuse victims, attorneys in the US, Europe and elsewhere have successfully brought huge lawsuits against individual priests and their dioceses or religious orders. In the US, the church has paid more than $3 billion in compensation to victims, according to BishopAccountability.org, driving several large dioceses, including San Diego and Milwaukee, into bankruptcy.

Historically, US courts have extracted large payouts from organizations that have gravely harmed the public. An obvious example is the $200 billion settlement between tobacco companies and state attorneys general in 1998. But, so far, no attorney has successfully argued that the Holy See should pay for priests’ transgressions.

Survivor advocates say that’s unfair, considering the church’s history of transferring predator priests from parish to parish, diocese to diocese — and even country to country, as GlobalPost showed in a yearlong investigation. They say Vatican leaders aided and abetted predator priests, protecting them and exacerbating the harm to victims.

David Clohessy, national director and spokesman for the Survivors Network of those Abused by Priests, or SNAP, said the church’s liability shouldn’t end at the borders of a diocese.

“It’s disingenuous at best and downright immoral at worst for church officials to claim they can’t compensate victims of horrific childhood sexual violence because the crimes happened on one side or another of an internal church boundary,” Clohessy said.

So why haven’t attorneys been able to tap into the Holy See’s incomparable wealth?

The church’s defense

Suing the pope, personally, isn’t really an option.

“If you were to try and sue the pope in the United States, you would get absolutely nowhere, even if you could show that he was directly implicated,” said Joseph Dellapenna, a law professor at Villanova University in Pennsylvania who specializes in suing foreign governments.

Under US law, the pope has absolute immunity from civil lawsuits because he’s a sitting head of state, Dellapenna said. The same is true in most countries, he said.

Not that people haven’t tried.

In 2005 a Texas lawyer named the pope as a defendant in a sexual abuse lawsuit against a local diocese. The judge ruled the pope had immunity, citing a motion filed by the US Justice Department in the pope’s defense.

That leaves the Holy See, whose defense benefits from its quasi-nation status. The general rule across the developed world is that you can sue a nation or state only for its commercial or private actions, and not for its sovereign or public actions, Dellapenna said.

The crucial question, therefore, is whether the Holy See has direct day-to-day control over its far-flung dioceses and priests. Does it act like a corporate boardroom, exercising control from the Vatican? Or is it simply a spiritual advisory body with no real input from day to day?

So far, the Holy See has argued successfully that each diocese acts as a separate legal entity, rather than branches of a central organization.

“If the Archbishop of Philadelphia does something bad, the Archbishop of Chicago has no legal responsibility,” said Dellapenna. By extension, the church’s defense is that legal culpability therefore doesn’t continue to the Vatican, he said.

The idea that the Catholic Church — with its shared dogma, symbolism, supreme leader and justice system — isn’t akin to a single corporation “doesn’t make any sense,” said Patrick Wall, a victim’s advocate, former priest, and author of a book on the Catholic sex abuse crisis.

“They want to prevent us from piercing the corporate veil,” he said.

On the one hand, Wall said, the US church argues that it’s a loose-leaf organization that merely takes recommendations from the pope with no connection between the dioceses. But on the other hand, the US church has programs like national insurance policies that collectively protect those dioceses, he said.

“People forget about Catholic Mutual Insurance,” Wall said. “If the cathedral in Orange, California falls into a sinkhole, that’s a risk they all share together. At that point, all 195 dioceses would get together, kick in the money and replace the structure.”

Still, for the time being, the Holy See’s argument that it doesn’t share a single corporate structure and doesn’t exercise day-to-day control over priests is winning the battle in America’s courtrooms.

International law and the International Criminal Court

Prominent British barrister Geoffrey Robertson argued in a 2010 column in the Guardian that the ICC is the proper place to “put the pope in the dock.”

“If acts of sexual abuse by priests are not isolated or sporadic, but part of a wide practice both known to and unpunished by their de facto authority then they fall within the temporal jurisdiction of the ICC,” Robertson wrote in the Guardian.

In 2011, the Center for Constitutional Rights, a legal advocacy group in New York, filed a complaint at the ICC against then-Pope Benedict XVI and several high-level Holy See officials, on behalf of SNAP.

It read: “The International Criminal Court is the appropriate forum to ensure accountability for the longstanding and pervasive system of sexual violence within the church given the magnitude, scope and global reach of these crimes.”

But two years later, the court declined to hear the case.

The court’s prosecutor said it didn’t fall within the ICC’s primary jurisdiction, defined by the court’s governing rules as "the most serious crimes of concern to the international community as a whole, specifically genocide, war crimes, crimes of aggression and crimes against humanity.”

Vatican spokesman Federico Lombardi told the Religion News Service at the time that he "never doubted this would be the response [of the ICC], given the total groundlessness of the accusation."

Attorney Pam Spees, who filed the ICC complaint, told GlobalPost that the court remains the only adequate forum to hear a case against the pope and the Vatican.

“With these different attempts in the US, everyone’s just trying to touch one part of the elephant and describe what it is, but they can’t see the whole thing,” Spees said. “There are all of these layers of protection that advocates have had to chip through, to get at what’s really going on.” 

The United Nations steps in

While the criminal case didn’t proceed at the ICC, Spees said it helped bring the Catholic Church to the attention of the United Nations.

The Holy See abides by two UN Conventions relevant to child sexual abuse: The 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the 1989 UN Convention on the Rights of the Child.

These conventions are overseen by independent committees with the power to call representatives of countries before them for questioning.

Last year, the UN Human Rights Committee on the Rights of the Child and the UN Committee Against Torture lambasted senior Holy See officials in public hearings and issued brutal reports criticizing the Vatican’s handling of child sex abuse cases.

“The Holy See has consistently placed the preservation of the reputation of the church and the protection of the perpetrators above children’s best interests,” Kirsten Sandberg, a chairperson of the rights committee, told reporters.

The Holy See immediately defended itself, saying the committees had a “grave misunderstanding” of its role. Church officials argued that the Holy See is only responsible for enforcing the UN conventions within the walls of the Vatican itself, which is home to just 900 or so people.

SNAP’s Clohessy said the committee actions were warmly welcomed by victims.

“This gives tremendous validation and hope to survivors while literally educating millions about how crimes are covered up in the church even today,” Clohessy said.

But while symbolically important, the dressing-down from the committees didn’t have any legal impact. Nobody from the Vatican went on trial. Nobody received a penny in compensation.

Criminal investigation

Earlier this year, in a landmark prosecution, the US Department of Justice charged several officials at Swiss-headquartered FIFA with racketeering, wire fraud and money laundering.

The charges, brought under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act, were an extraordinary assertion of American justice over an international and foreign-headquartered organization.

The RICO Act was designed to combat organized crime groups like the Mafia. But a growing number of advocates in the US see the FIFA investigation as a precedent for a possible criminal investigation into the Holy See’s role in child sexual abuse cases.

“I don’t think that’s far-fetched at all,” said New Jersey attorney Steve Rubino, who filed a lawsuit against a local Catholic diocese in 1993 alleging civil violations of the RICO Act. “There’s always some straw that breaks the camel’s back.”

But Wall, the advocate from Minnesota, stressed that the church is a far more politically sensitive institution for US prosecutors to investigate than a Swiss soccer organization many Americans have probably never heard of.

The Holy See and the pope engage in crucial diplomatic roles considered vitally important to America’s interests, Wall said. Indeed, Pope Francis was heavily involved in brokering the recent historic thawing of relations between Cuba and the United States. And just look at the "rapturous" reception the pope has had in Washington this week.

“I just don’t think there’s the political will to do it,” Wall said. “The Vatican helps out the United States a lot."