Tuesday, August 26, 2014
Various news sources are speculating about the case of the former papal nuncio to the Dominican Republic, Josef Wesolowski, who is alleged to have sexually abused children and youth in the country where he served. Much of this speculation, often accompanied by misleading headlines of various articles, is just that, opinion and conjecture. There is not a whole lot of appreciation or analysis of the law of the Church and of nations that applies to this case.
Let’s start with the law of the Church. All things being considered, it appears that the Holy See acted as expeditiously as any sovereign would be obliged to do in reining in its natural person subject, i.e., Josef Wesolowski, through the exercise of the nationality principle (Wesolowski held and used a diplomatic passport of the Holy See). This is not the law of the “Vatican” or the Church or Holy See but the law of nations, i.e., public international law. Along with complementary norms of the Code of Canon Law, this principle of the law of nations would explain Wesolowski’s recall to Rome and the initiation of due process against him—a principle which applies to all sovereigns temporal and spiritual. It is the principle of personal jurisdiction which has led to his dismissal from the clerical state, i.e., his laicization. Some commentators do not understand the significance of this element of the juridical process. As a cleric, I can assure anyone that this is a legal event of profound legal, ecclesiastical, and moral significance. To many non-clerics, it may seem nothing or a mere tap on the wrist. In reality, it is something of momentous significance.
In the further exercise of due process, Wesolowski has appealed the decision resulting in his laicization. Of course, many defendants—be they engaged in civil or criminal proceedings—have the juridical right to appeal most decisions that are unfavorable to them. Mr. Wesolowski has exercised this right as it is the right of any defendant. Due process does not stop with the initial decision in most contested matters, nor does it stop with Wesolowski’s laicization.
Mr. Wesolowski has allegedly committed wrongs against his victims and against his priestly state that has led to his laicization, but he has also committed crimes against the law of the sovereign that issued his nationality as a diplomat. As long as he was a recognized diplomat, he enjoyed diplomatic privileges and immunities against the receiving country, i.e., the Dominican Republic, under public international law. The Holy See is a party (1964) to the Vienna Convention on Diplomatic Relations (1961) which specifies that diplomats are protected from virtually all law enforcement in the country where they serve. As Article 31 of the Convention states, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” The Convention does have exceptions to this principal rule, but they do not seem to apply to the Wesolowski case.
If things get complicated for the diplomat because of actions that are covered by Article 31 of the Convention, he or she can be recalled by the sending state (here, the Holy See) or declared persona non grata by the receiving state (here, the Dominican Republic) and expelled. It is not appear that the Dominican Republic expelled Wesolowski, but it is clear that the Holy See recalled him and brought the initial legal action against him in the form of laicization and the removal of his diplomatic immunity.
It must be remembered who and what are protected by the doctrine of diplomatic immunity: it is for the protection of the sending sovereign (the Holy See). While the diplomat can benefit from the protection of diplomatic immunity, the doctrine does not subsist principally for the protection and convenience of the individual diplomat himself or herself. It exists under international law for the sending state which sent the diplomat so as to augment the efficient performance and functioning of diplomatic missions.
The legal doctrine of diplomatic immunity raises further issues about additional due process matters. This is clear from Article 32 of the Convention which posits that, “The immunity from jurisdiction of diplomatic agents… may be waived by the sending State” and the waiver ‘must be express.” But it is the sending State, here the Holy See, that makes this call. As the Holy See has stripped Wesolowski of his diplomatic immunity, it appears that further legal proceedings in the Vatican are pending against him. It would therefore be premature to suggest at this stage that Mr. Wesolowski has escaped justice that includes justice and its due process in the Dominican Republic and his native Poland. As his immunity has been purged, Mr. Wesolowski is subject to additional due process of law by any competent legal authority which has a rightful claim of jurisdiction over him. This could mean the legal authorities of the Holy See and the Vatican City State or the Dominican Republic or his native Poland.
One final point needs to be made now even though many more things can and need to be said about this case. There may be some plaintiffs’ counsel who will see the legal actions taken by the Holy See and the Church against Mr. Wesolowski as presenting an opportunity to sue the Holy See in the courts of the temporal authorities for the wrongs allegedly committed by him. I am confident that the Holy See and the Church will rely on the principles of public international law that have protected other sovereigns from liability from the wrongs perpetrated by their diplomats who committed grave wrongs against the citizens of receiving states and betrayals of the service to which Wesolowski pledged himself on behalf of the Holy See and the Church. Here one cannot dismiss the good will exercised by the Holy See with any competent legal authority concerning the means of redressing the wrongs he allegedly committed. They have apparently caused great wrongs against the people of the Dominican Republic, and they have also caused great offense against the Holy See and the Church, both of which have the legal right to proceed against him. To contend that only the Dominican Republic and her people have been wronged and the Holy See and the Church have not would generate a new injury; but this last injury has redress in the law of nations, too.
RJA sj
Rabbi Dr. Meir Y. Soloveichik is speaking at Touro's Jewish Law Institute on "Jews, Christians, and the Hobby Lobby Decision" on the evening of September 4 in New York City. If you are nearby, I recommend attending. More information is available here.
Friday, August 22, 2014
Prof. Arkes' response to Prof. Miller's recent Public Discourse essay ("Prof. Arkes and the Law") is up, as is Prof. Miller's rejoinder, "What Reason Can Know and What Government Should Legislate." My own thoughts on the matters under discussion are very close to Prof. Miller's. I continue to be puzzled by some of Prof. Arkes' (and others') criticisms of RFRA or of the arguments of the lawyers and judges whose have the jobs of interpreting and applying it. If the point is simply that the RFRA regime reflects premises about "religion", "belief", etc. that connect imperfectly with the Truth, then I say, "sure, but so it goes."
Here's a bit, from the rejoinder:
In my article, I argued that conferring on public officials a general power to inquire into moral or religious truths is dangerous because such people are no better than anyone else at sorting out true beliefs from false ones and they are just as likely as everyone else to think that ideas different from their own are unreasonable or perverse. Because of this, Arkes speculates that I may have “lost confidence that there is indeed a discipline of reason that may guide and restrain judges, as it guides and retrains everyone else.” Now, I have often said that I am an Aristotelian-Thomist in morals, and so there can be no doubt that I believe that reason can determine what is moral and what is immoral. Arkes’s question is helpful, however, because it highlights what I think is the central confusion in his position.
That is, Arkes consistently runs together what reason, in some abstract philosophical sense, can know, with what we can expect from the efforts at reasoning of particular human beings. The first is a question of whether certain sound arguments exist; the second is a question of how likely particular human beings are to discover and embrace these arguments. These are very different things. . .
Read the whole thing(s).
Thursday, August 21, 2014
Archbishop Coakley announced Thursday that the consecrated
Host at the center of a lawsuit filed in Oklahoma County District Court has been returned.
An attorney representing the head of the satanic group presented the Host to a Catholic priest Thursday afternoon. The lawsuit sought return of the Host following multiple public statements by the head of the local satanic group that they planned to defile and desecrate the consecrated Host during a satanic ‘black mass’ scheduled next month in Oklahoma City.
With the return of the Host and an accompanying signed statement from the satanic group leader that the group no longer possesses a consecrated Host, nor will they use a consecrated Host in their rituals, the archbishop agreed to dismiss the lawsuit with prejudice.
“I am relieved that we have been able to secure the return of the sacred Host, and that we have prevented its desecration as part of a planned satanic ritual,” said Archbishop Paul Coakley of the Archdiocese of Oklahoma City. “I remain concerned about the dark powers that this satanic worship invites into our community and the spiritual danger that this poses to all who are involved in it, directly or indirectly.”
Archbishop Coakley has made repeated requests for the city’s leaders to cancel the satanic ritual in a publicly funded facility.
“I have raised my concerns … and pointed out how deeply offensive this proposed sacrilegious act is to Christians and especially to the more than 250,000 Catholics who live in Oklahoma.”
On Sept. 21, the day the satanic ritual has been scheduled, the archbishop invites the Catholic community as well as all Christians and people of good will to join him in prayer for a Eucharistic Holy Hour at 3 p.m. at St. Francis of Assisi Church, 1901 NW 18, followed by an outdoor Procession and Benediction.
“For more than 1 billion Catholics worldwide, the Mass is the most sacred of religious rituals,” the archbishop said. “It is the center of Catholic worship and celebrates Jesus Christ’s redemption of the world by his death and resurrection. We are grateful for the gift of the Eucharist and pray that this threatened sacrilege will heighten our appreciation and deepen our faith in the Lord's Eucharistic presence among us.”
Wednesday, August 20, 2014
Last month I wrote about a satanic black mass, which is scheduled to be held in Oklahoma City in September. Earlier this month, Archbishop Coakley called for prayer and penance to avert the planned sacrilege. In addition to Holy Hours, Eucharistic Processions, and Benediction, the Archbishop is asking all Catholics to say the Prayer to St. Michael the Archangel now though September 29 (the Feast of the Archangels). Please join us in this prayer.
Today, the Archdiocese filed a Petition for Replevin against the organizers, contending that the consecrated host that the organizer claims to possess "must have been procured, either by that person or by another, by illicit means: by theft, fraud, wrongful taking, or other form of misappropriation." Here is a link to the Petition.
Michael Caspino of Busch & Caspino (Irvine, Ca.) and Chris Scaperlanda of McAfee & Taft (OKC) represent the Archdiocese. Yes, I'm a proud dad.
Tuesday, August 19, 2014
A couple of months ago, I posted up a brief message on the publication of my first novel, Marital Privilege, by North Star Press. I promised to post something more about it a few days later, but the summer got away from me, with launch party, book signings, distributions to incoming St. Thomas law students, and of course multiple other scholarly and professional projects. But now is a good time for me to follow up, as the novel is now available on Kindle at Amazon and on the Nook at Barnes&Noble.
The lead character in Marital Privilege is a law professor, and, while I should warn sensitive readers that the story begins with tragedy, the novel has themes of law, faith, and hope in the middle of tragedy. A distinctly Catholic sensibility will be found throughout the story.
Here is the back cover description:
Candace Klein is one of the lucky ones in her professional life, finding genuine meaning in her work as a law professor. But her personal life is troubled by a growing distance from her husband, Bill, who languishes in a dead-end job working for her father.
Suffering the horrific loss of her child in a car bombing, Candace grieves and seeks solace in her faith. Then a politically-climbing prosecutor, Robby Sherburne, takes control of the criminal investigation and promises the death penalty for a child-killer. Meanwhile, Ed Burton, a suburban cop, simply tries to follow the evidence where it leads.
When her husband becomes the target of the investigation, Candace asserts the “marital privilege” and refuses to cooperate. This ultimately provokes a crisis of identity between her professional commitment to the justice system and her resolute loyalty to her husband.
More information about the novel can be found here.
