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Can the Pope Go to Jail?

A new wave of sex scandals and allegations he personally covered for an abusive cardinal have Pope Francis under fire. But is he in trouble?

by Alex Norcia
Sep 6 2018, 3:07pm

Left Photo: Giuseppe Ciccia/Pacific Press/LightRocket via Getty Images. Right Photo: Juan Camilo Bernal/Getty Images

In August 2013, Józef Wesołowski, the Vatican's ambassador to the Dominican Republic since 2008, abruptly abandoned his island home. He'd been a staple on the waterfront in Santo Domingo, the capital city, where—often dressed like he was out for a jog—he assumed a laid-back and less-than-holy presence. The shoeshiners knew him casually as "the Italian," because of the way he spoke Spanish with a distinct accent. (He was actually Polish.) He often had beers in the sun at a popular restaurant. He seemed, well, normal.

But when he was done drinking, as the New York Times reported, Wesolowski was said to routinely pay young boys for sex—in one instance allegedly preying on an epileptic child's desperate need for medicine. By the time Nuria Piera, a local TV journalist, began to air the sordid allegations in September 2013, however, it was too late for the Dominican authorities to act—Pope Francis had already recalled Wesołowski to Rome.



The Vatican's handling of the case—eventually charging Wesolowski with a crime—ultimately represented something of a novelty in its approach to sexual abuse. Still, Yeni Berenice Reynoso Gómez, then the district attorney of Santo Domingo, echoed local rage when she told the Times "the case should have been prosecuted in the Dominican Republic." Months later, in January 2014, after Wesołowski's native country of Poland tried to extradite him for the alleged crimes, the Church responded by stating that "Vatican law [did] not allow for his extradition." In August of that same year, though, the Vatican stripped him of his diplomatic immunity.

The accused cleric was soon faced with at least two trials. The first was a canonical one led by the Holy See, the governing body of the Church, which ultimately removed his rights to function as a priest, effectively rendering him just another Catholic. The second was a criminal proceeding in the city-state of the Vatican: In June 2015, a local prosecutor charged Wesołowski for possessing child pornography and other child sex offenses, at least nodding toward the broader range of horrific allegations against him. Wesolowski would have been the highest-ranking leader of the Roman Catholic Church to face a Vatican trial for sex crimes—but he died right before it got underway. (He was never extradited for prosecution elsewhere.)

The saga came more than a decade after the Boston Globe's Spotlight team revealed that priests in the predominantly Catholic American city had been abusing young boys in their parishes, and that high-ranking officials like Cardinal Bernard Law systematically covered it up. Several were later defrocked, and some priests were actually convicted in Massachusetts and sent to prison there—because, unlike Wesołowski, they were not citizens of the Vatican and therefore subject to US law. (The number of priests in that city alone accused of abuse eventually reached into the dozens.) The Dominican scandal also came about 15 years after Pope John Paul II replaced Cardinal Hans Hermann Groër, the archbishop of Vienna, after allegations surfaced that he abused children. And it came more than two decades after survivors came forward in the 1990s, in Ireland, causing a crisis in a veritable redoubt of modern Catholicism.

Controversy over sexual abuse in the Church, in other words, is nothing new—jokes about creepy priests have been baked into the crust of American culture for most of our lives. But after a fresh onslaught of Church sex scandals this summer, and in a society still grappling with the #MeToo movement, it's fair to wonder whether—and how—the reckoning could ever reach the highest levels of the most powerful stand-alone religious institution on the planet.

In the past few months, Americans saw Cardinal Theodore McCarrick—the former archbishop of Washington—become one of the highest-ranking clergy members ever to be removed from the ministry, and resign from the College of Cardinals. They learned that at least 300 priests had allegedly abused 1,000 children since 1947 in just parts of the state of Pennsylvania alone. Some followed Pope Francis's recent trip to Ireland that devolved into a sort of apology tour through the increasingly secular country, a visit that was topped off with the release of a 7,000-word letter by Archbishop Carlo Maria Viganò—a former top Vatican diplomat and conservative critic of his apparent progressivism—accusing Francis of knowing about McCarrick's record of abuse. Viganò demanded Francis resign, but the pope responded by not responding. "I will not say a single word about this," he told reporters. "I believe the statement speaks for itself. And you have the sufficient journalistic ability to make your conclusions. It's an act of trust."

The questions posed by decades of Catholic Church abuse are all too familiar. If Viganò's allegations are accurate (some argue his timing was politically motivated), would the pope stepping aside—like the pope before him, the first to do so in 600 years—actually represent justice? What if it is in fact true that Francis or his predecessors or underlings have been covering up, or at least have known about the cover up, of these priests? Who can even theoretically judge a pope? Can someone other than God actually send him or his subordinates to jail? How infallible is the guy at the top of the pyramid?

The pope, at least, seems effectively immune to prosecution of any kind.

"Respectful of the nature of the Church as willed by Christ, no mechanism of canon law provides for the removal of a pope from office," Edward Peters, the chair of faculty development at Sacred Heart Major Seminary in Detroit who runs a popular blog on canon law, wrote recently.

"It's just kind of a fantastic scenario," Gladden Pappin, an assistant professor of politics at the University of Dallas and senior adviser of the Center for Ethics and Culture at the University of Notre Dame, told me over the phone when I asked him if he could imagine any situation in which a pontiff might actually be prosecuted. "The pope is the supreme legislator, the supreme judge, the supreme governor of the Church. It's a monarchy. So he cannot be arrested. The ecclesiastical power is his to wield. Even from a secular standpoint, but arguably even in the international sphere, except under very limited conditions, he enjoys sovereign immunity, being the head of the state."

"No one can hold him accountable," agreed Kurt Martens, the ordinary professor of canon law at the Catholic University of America, when I presented him with the same hypothetical. "Because of the system that's in place, the pope, once elected, has supreme power in the Church and over the Church. And people may call for his resignation, but the only one who can make the decision about his resignation is the pope himself."

My inquiry was, admittedly, something of a spectacular one. But it gets to the heart of the dilemma facing modern Catholics and the Church: utter miscommunication—both from the Church and within it—about what the Church is and how it acts. About the distinction between the Holy See (the church's governing body) and the Vatican (a city-state and political actor). About the pope as the leader of a nation and a religion. Justice, according to Martens, must not only "be done... but seen."

In the opinion of Father Patrick Gilger, who recently penned a critical essay about the Church's abuse for Vox and who distinguishes between the Vatican's legal proceedings and living as a good Catholic within the community, change itself is often misunderstood as well.

"What [it] means for someone who lives fully in the secular world—we all live in that world, in some respect—but what they mean is you change the legal structures of the institution," he told me over the phone. "It means reform. To me, there's no worry about that: Of course. That does not help us, though, live into a new pattern of life together."

But what if we don't even know what we're supposed to be looking for because of the opacity of the institution? That puts us in a position where, enraged at the Church and the powerful men within it who have done wrong, we explore the most far-fetched scenarios we can imagine.

"What one could say," Pappin told me, "is that there's definitely confusion caused in the public mind by the fact that the Church exercises certain types of jurisdiction over its clergy and other types it doesn't. It isn't like other churches. It's an independent civil society based in the Vatican city-state, and is part of the whole world. And those who join it as priests subject themselves to that jurisdiction—in certain cases, certain elements, and certain points of their lives."

Throughout history, Pappin reiterated, referencing the feud between Thomas Becket and King Henry II, "there's always been a kind of struggle between ecclesiastical and secular authority over jurisdiction over priests."

In regards to cardinals and bishops, what tends to happen in the modern era, when evidence has been accumulated via journalism or some other means, is they resign—and then, typically, disappear into obscurity.

"The only one who has authority over them is the pope," Martens told me. "And it belongs to the pope to make a final judgment in such cases. And thus far we’ve handled that only with resignations."

If the accused person is a nuncio, like Wesolowski, they usually undergo the same dual processes of punishment: from the canon law of the Church, which mainly involves being stripped of their titles and certain powers, and criminal law, which the Vatican can claim to administer for many high-functioning clergymen (usually through a tribunal) because they are typically foreign diplomats of the Holy See. Which just happened, by the way: The Vatican recalled Monsignor Carlo Alberto Capella to Vatican City and sentenced him, at the end of June, to five years imprisonment. It was the the first Vatican-imposed sentence of its kind. (The Church refused a request from the US to drop Capella's diplomatic immunity in that case.)

Then there are men like McCarrick, who does not have any such diplomatic immunity because he's just an American guy working for the Church. And as with almost every sex crime that has been alleged in the #MeToo era, the statute of limitations snag looms.

After the Pennsylvania report detailed horrors but noted they were almost exclusively too old to prosecute, attorneys general throughout the US—in Illinois, Missouri, New York, and Florida—suggested they were pursuing, or thinking of pursuing, their own investigations into priest abuse. Some parts of Australia, a country that has been notably aggressive in pursuing predatory priests, have passed controversial laws that demand priests break the seal of confession. More broadly, there have been countless calls for the Church to be transparent in its actions, by professionals and laypeople alike.

After all, "the Church is the kind of institution," Pappin pointed out, "in which it could appear that nothing is happening, and something could be happening behind the scenes."

Which seems like precisely the problem. The Roman Catholic Church certainly has had a lot to be sorry for over the centuries—its attitude toward slavery and colonialism, the Inquisition, its general silence during the rise of fascism, among many other disgraces. But to move forward, Catholics—and their fellow citizens—need the pope and those around him to do much more than apologize.

"You know what I would love to see?" Martens told me, when I asked him about possible future outcomes. "Some form of 'truth commission,' like after Apartheid in South Africa."

But, he continued, "the only way for something like that to move forward is for people to be able to speak the truth. If you want fix the system, you'll have to go to the bottom of everything."

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