VATICAN CITY – Dragged deeper than ever into the clerical sex abuse scandal, 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 Tuesday 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 does not provides proof of a cover-up.
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The Holy See is trying to fend off 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.
“This case is the only case that has been ever been filed against the Vatican which has as its sole objective to hold the Vatican accountable for all the priest sex abuse ever committed in this country,” he said. “There is no other defendant.”
The Vatican is seeking to dismiss the suit before Benedict XVI can be questioned or documents subpoenaed.
The preview of the legal defense was submitted last month in U.S. District Court in Louisville. The Vatican’s strategy is to be formally filed in the coming weeks. Vatican officials declined to comment on Tuesday.
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 nothing in the papers stopped bishops from calling police.
With the U.S. scandal reinvigorated by reports of abuse in Europe and scrutiny of Benedict’s handling of abuse cases when he was archbishop of Munich, the Kentucky case and another in Oregon have taken on greater significance. Lawyers as far away as Australia have said they plan to use similar strategies.
At the same time though, the hurdles remain enormously high to force a foreign government to turn over confidential documents, let alone to subject a head of state to questioning by U.S. lawyers, experts say.
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.
“They will not be able to depose the pope,” said Joseph Dellapenna of the Villanova University Law School and author of “Suing Foreign Governments and their Corporations.” He said, “Lower level officials could very well be deposed and there could be subpoenas for documents as part of discovery.”
McMurry last week filed a new court motion seeking to depose the pope; Cardinal Tarcisio Bertone, currently Vatican secretary of state; Cardinal William Levada, an American who currently heads the Congregation; and Archbishop Pietro Sambi, the Vatican’s agent in the U.S.
On Tuesday, McMurry filed a memorandum in support of his demand to question Benedict based on court documents unearthed last week detailing the role of the Congregation in shutting down a canonical trial for a Wisconsin priest who allegedly molested up to 200 deaf boys.
“These documents confirm that the CDF, under Pope Benedict XVI’s lead, discouraged prosecution of accused clergy and encouraged secrecy to protect the reputation of the church,” wrote McMurry, who represented 243 sex abuse victims that settled with the Archdiocese of Louisville in 2003 for $25.3 million.
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