The Vatican is launching a legal defense that it hopes will shield the pope from a lawsuit in Kentucky seeking to have him answer attorneys’ questions under oath.
Court documents obtained by The Associated Press show that Vatican lawyers plan to argue that the pope has immunity as head of state, that American bishops who oversaw abusive priests weren’t employees of the Vatican, and that a 1962 document is not the ”smoking gun” that provides proof of a cover-up.
This is the first U.S. case to reach the stage of determining whether victims actually have a claim against the Vatican itself for negligence for allegedly failing to alert police or the public about Roman Catholic priests who molested children.
The case was filed in 2004 in Kentucky by three men who claim they were abused by priests and claim negligence by the Vatican. Their attorney, William McMurry, is seeking class-action status for the case, saying there are thousands of victims across the country.
Plaintiffs in the Kentucky suit argue that U.S. diocesan bishops were employees of the Holy See, and that Rome was therefore responsible for their alleged wrongdoing in failing to report abuse.
They say a 1962 Vatican document mandated that bishops not report sex abuse cases to police. The Vatican has argued that there is nothing in the document that precluded bishops from calling police.
The United States considers the Vatican a sovereign state — the two have had diplomatic relations since 1984. In 2007, U.S. District Court Judge John Heyburn rejected an initial request by the plaintiffs to depose Benedict.
McMurry is eager to find out what the Vatican knew and did, in particular, about Rev. Louis Miller, who was removed from the priesthood in 2004 by the late Pope John Paul II. Miller pleaded guilty in 2003 to sexually abusing one of the plaintiffs in the Kentucky lawsuit and other children in the 1970s. He is serving a 13-year prison sentence.
In a deposition transcription obtained by The Associated Press, Miller said he had offered to resign as early as 1962 to his then-Archbishop John Floersh, and that two subsequent archbishops knew of his crimes but continued to keep him as a priest, moving him from parish to parish.
Plaintiffs in the Kentucky suit contend that bishops are employees of the Vatican. That point is crucial to determing whether the Holy See can be held responsible for their behavior.
Also crucial to the Kentucky lawsuit is the 1962 document ”Crimen Sollicitationis” — Latin for ”crimes of solicitation.” It describes how church authorities should deal procedurally with cases of abuse of children by priests, cases where sex is solicited in the confessional — a particularly heinous crime under canon law — and cases of homosexuality and bestiality.
McMurry argues that the document imposed the highest level of secrecy on such matters and reflected a Vatican policy barring bishops from reporting abuse to police.
McMurry insisted Tuesday that Crimen is a smoking gun.
”The fact is, this document and its predecessors make it an excommunicable offense to reveal any knowledge of allegations that a priest has sexually abused,” he said.
The existence of Crimen did not become publicly known until 2003, when a lawyer noticed a reference to the document while reading a 2001 letter written by Benedict, then Cardinal Joseph Ratzinger. McMurry is seeking to subpoena Ratzinger’s letter, which instructed all bishops to send cases of clerical sex abuse to him and to keep the proceedings secret.
In 2008, the 6th U.S. Circuit Court of Appeals gave the go-ahead for Kentucky lawsuit to continue, ruling that an exception to sovereign immunity, which shields most foreign governments from U.S. lawsuits, should be applied.
The 6th Circuit eliminated most of the plaintiffs claims’ in its late 2008 ruling before returning it to district court.