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Witness for the prosecution

Every person is entitled to claim the right to religion, and to manifest it in community with others by "teaching, practice, worship and observance".

The corollary of this right is that churches must be free to propound the tenets of their respective faiths, but always subject to laws necessary in a democracy to protect public interests and the rights and freedoms of others.

Church leaders and personnel are not only subject, like everyone else, to the laws of the nation where they live, but to international criminal law.

How, then, can one religious leader be above all laws, whether national or international and whether civil or criminal?

His Holiness, Pope Benedict XVI -- who next week makes the first Papal visit to the UK since that of John Paul II in 1982 -- is unaccountable as well as infallible, as asserted by his followers and diplomats.

This issue has arisen in the context of the evidence of clerical sex abuse which has emerged in court cases in the US; in the Murphy Report into clerical child abuse in the Dublin Diocese; and in similar patterns lately emerging in Europe and Australia and Canada.

The facts, as Church leaders admit with apologies that are now profuse, are shameful and scandalous. But they have consequences far beyond the reputational damage to the Church.

The evidence establishes that, at the direction of the Vatican, wrongdoers were dealt with in a manner that protected them from exposure, silenced their victims, aided and abetted some to move on to commit further offences, and withheld evidence of their serious crimes from law enforcement authorities.

In effect, the Church has in many countries been running a parallel system of criminal justice, in which the guilty went unpunished and the lips of their victims were sealed.

This alternative system of "justice" was overseen for almost a quarter of a century by Cardinal Ratzinger (who in 2005 became Pope Benedict XVI); that so much wrongdoing happened on his watch raises serious questions about his competence as an administrator and a leader.

Now he is the commander of the Vatican and he is head of the Holy See, a sovereign state.

Most national criminal laws make it an offence to conceal evidence of serious crime, and civil law has vicarious liability for those whose negligence has caused or contributed to human suffering. On what basis can it be said that the Pope and the Holy See can avoid investigation for these different forms of legal accountability?

The sexual abuse of children is an outrage -- bad enough in ordinary cases of "stranger- danger" paedophilia, and worse when teachers or Scout masters or babysitters or parents abuse the trust placed in them and molest their charges.

But worst of all are priest offenders, who groom their victims in the confessional or on retreats or otherwise through the spiritual power vested in them.

This is why the Vatican's responses to the child-abuse scandal, has been woeful.

It has never -- even today -- faced up to the central fact that the church, for many years under the guidance of Cardinal Ratzinger as head of the Congregation for the Doctrine of the Faith (CDF), had become a law unto itself. The Church's response is that hierarchical sex abuse occurs in all religious institutions and in secular schools, and it is wrong to "stereotype" the Roman Catholic priesthood.

But the evidence does reliably show a markedly higher level of abuse in Catholic institutions, and in any event the defence misses the point -- namely that this Church, through its pretensions to be a state, with its own non-punitive canon law, has actually covered up the abuse and harboured the abusers.

By the age of seven, very often, Catholic children are taking communion -- an awesome experience for them in which the priest performs before their eyes the transubstantiation miracle of changing the bread and wine into the body and blood of Christ. Then, at the same age, the impressionable and nervous child is made to confess his sins -- the priest, god-like, dispenses forgiveness. "Catholics are indoctrinated from their childhood that priests take the place of Jesus Christ and are to be obeyed at all costs, and never questioned or criticised," says Father Tom Doyle, an outspoken critic of the Vatican's stance on abuse.

A church that puts its children from this early age under the spiritual control of its priests, has the most stringent of duties to guard against the exploitation of that obedience.

That includes the duty of handing over those suspected of child sex abuse to the secular authorities for trial and, if convicted, for punishment.

It is this duty that Cardinal Ratzinger, aka Benedict XVI, has for the past 30 years adamantly refused to accept.

Everyone knows that subjecting a child to sexual molestation is a crime deserving of punishment, irrespective of whether it is also a sin requiring penitence.

But the Catholic Church has treated such behaviour by its priests as a sin deserving only of penance, and has done its best to hide malefactors from the arrest, public trial and sentences of imprisonment that befall most other child molesters.


What moral blindness has made a church renowned for its benevolence so reluctant to root out and punish all the child abusers in its midst, and even willing -- as the evidence clearly shows -- to move them on to greener pastures?

The plain facts now emerging show that sexual abuse of children by Catholic priests has been at a level considerably above that in any other organisation, and that it has been covered up by many bishops with the support and at the direction of the Vatican.

The cover-up has included an almost visceral refusal to call in the police, the swearing of complainants and witnesses to secrecy, and proceedings under a clandestine canon law biased towards the priests.

Transgressors likely to reoffend have been moved to parishes where their record is not known: some 60pc of US priests were "reassigned" after the first report that they were child abusers. The "traffic" of paedophile priests to and from the US is well authenticated.

No explanation has been forthcoming for why this was tolerated at the highest levels of the Church, especially during the Papacy of John Paul II and the prefecture of Cardinal Ratzinger at the CDF.

Then, of course, there is the question of forgiveness or, more specifically, who should do the forgiving, and when?

The sexual abuse of children is a serious crime, and whether or not it is a sin (as most serious crimes are) does not matter, on Earth in any event.

But the Catholic Church insists on forgiving its criminal priests when they have confessed and claimed to be repentant and said prayers or done a few charitable works, and that forgiveness has come with a determination to protect them from arrest and trial.

The problem was highlighted by the Pope's pastoral letter to his Irish faithful in March. While condemning the sin he could not bring himself to damn the sinners -- thrice he told the perpetrators that forgiveness was theirs for the asking.

There are few recorded instances of attempts to hold the Vatican, or its pontiff, liable for the Church practices of hiding paedophile priests, or covering up their crimes.

In some countries there have been civil actions for damages against the direct employers of the offending priests, ie the bishops and their dioceses. These have mainly been settled by insurers, usually on "hush money" terms.

The payments have been considerable and in some cases massive (especially in the US with its class-action suits).

These settlements are unsatisfactory for many victims, because they do not provide the closure that comes from catching the "big fish", ie holding the Vatican accountable for directing the perpetrators' escape route through the parallel justice system of canon law.

It is in this context that the Pope and the Holy See have been proposed as defendants in civil actions. But the US State Department has intervened, issuing a "suggestion of immunity" (not a "suggestion" at all, but a direction that American judges are bound to accept).

Since the Holy See is a state, says this certificate, the Pope has "head of state immunity": he can never be sued, nor prosecuted, and the Holy See has state immunity, which (with certain exceptions) removes its liability for civil wrongs.

The Catholic Church must be answerable for the way it has sheltered paedophile priests: its pretensions to statehood should not give it immunity in international law. The clerical sex abuse scandal has most visibly raised these issues.