September 19, 2014
Diplomatic immunity – that is, a foreign diplomat’s insulation from a host country’s civil and/or criminal legal actions – is something perhaps discussed more often in popular media than actually witnessed.
But rest assured: diplomatic immunity continues to protect foreign statespersons even today. Just last month actually, a Polish archbishop accused of child sex abuse in the Dominican Republic was defrocked by a Roman Catholic tribunal and further stripped of his diplomatic immunity, thereby raising the possibility of extradition to and criminal prosecution by the Dominican Republic.
While foreign dignitaries are typically insulated from minor offenses, this sort of revocation of immunity is not uncommon in cases where the diplomat is charged with serious violations of the host country’s laws. Often, the host country’s government will request the home country to waive immunity of the alleged lawbreaker so that he or she may be subject to the host’s laws and courts. If the home country refuses to waive immunity, the host country has the discretion to (and often does) cancel the diplomat’s visa, effectively causing the individual to withdraw from his or her duties.
There are some circumstances that the U.S. State Department requests that a certain foreign diplomat retains his or her immunity, despite the egregiousness of the alleged crime. Nine years ago today, on September 19, 2005, the State Department made such a request related to the immunity of Cardinal Joseph Ratzinger – more commonly known as Pope Benedict XVI – in the form of a “Suggestion of Immunity.” The was the first instance of diplomatic immunity officially being extended to Pope Benedict XVI in the U.S.
“Suggestion of Immunity” is a bit of a misnomer for the pleading, since the U.S. Supreme Court has held that the Executive Branch’s suggestion of immunity outright binds the federal court to which it is submitted to surrender jurisdiction. In other words, the filing of such a “suggestion” requires the court to recognize the diplomat’s immunity.
The lawsuit for which this suggestion was submitted was John Doe I v. Roman Catholic Diocese of Galveston-Houston, which involved the alleged sexual abuse of three unnamed plaintiffs in the mid-1990s by seminary student Juan Carlos Patino Arango. According to the complaint, this abuse was actively concealed by the Archdiocese of Galveston Houston, several church officials, and Cardinal Ratzinger himself, who was, at the time, Prefect of the Congregation for the Doctrine of the Faith (CDF), making him responsible for dealing with sexual abuse allegations against Catholic clergy. According to the plaintiffs, the CDF published the Crimen Sollicitationis, which is
a virtual ‘trial manual’ on the manner of conducting secret, exculpatory, sham-trials of priest-perpetrators in such a manner as to denigrate the victim’s testimony through a series of self-incriminating leading questions that make it virtually impossible for any priest ever to be convicted of the crime of sexual assault of children by a secret church tribunal.
This Crimen, the plaintiffs claimed, was part of the CDF’s policy of covering up sexual abuse of minors by clergy, which Cardinal Ratzinger, as the CDG’s Prefect, advanced.
Although it should come as no surprise that the U.S. government would seek immunity for the sitting pope, the plaintiffs actually had some bad luck in the timing of their lawsuit: at the time of its filing on March 25, 2005, Pope John Paul II was still alive and acting as pope; he didn’t die until April 2, 2005, and Pope Benedict wasn’t elected until April 19. Thus, less than a month after filing the lawsuit, one of its most prominent named defendants became the head of state for the Vatican – entitling him to the strongest levels of diplomatic immunity.
Unsurprisingly, presiding Judge Lee Rosenthal agreed that the court was bound by the Executive’s suggestion of immunity, and that Cardinal Ratzinger – known as Pope Benedict XVI at the time of the ruling – must be removed from the case.
Despite the enjoyment of his legal immunity, as pope, Benedict had been forced to regularly deal with the Catholic Church’s sexual abuse issues until his resignation last year. So while his immunity certainly spared him any direct legal liability, it didn’t make the problem go away.