A Stitch in Haste

This fact pattern touches on so many areas of law about which I know absolutely nothing about that I’m just going to post it and ask some layperson-style questions.

Pope Benedict XVI faced claims last night he had 'obstructed justice' after it emerged he issued an order ensuring the church's investigations into child sex abuse claims be carried out in secret.

The order was made in a confidential letter, obtained by The Observer, which was sent to every Catholic bishop in May 2001.

It asserted the church's right to hold its inquiries behind closed doors and keep the evidence confidential for up to 10 years after the victims reached adulthood. The letter was signed by Cardinal Joseph Ratzinger, who was elected as John Paul II's successor last week.

Lawyers acting for abuse victims claim it was designed to prevent the allegations from becoming public knowledge or being investigated by the police. They accuse Ratzinger of committing a 'clear obstruction of justice'.
...
Ratzinger's letter states that the church can claim jurisdiction in cases where abuse has been 'perpetrated with a minor by a cleric'. The letter states that the church's jurisdiction 'begins to run from the day when the minor has completed the 18th year of age' and lasts for 10 years.

It orders that 'preliminary investigations' into any claims of abuse should be sent to Ratzinger's office, which has the option of referring them back to private tribunals in which the 'functions of judge, promoter of justice, notary and legal representative can validly be performed for these cases only by priests'.

'Cases of this kind are subject to the pontifical secret,' Ratzinger's letter concludes. Breaching the pontifical secret at any time while the 10-year jurisdiction order is operating carries penalties, including the threat of excommunication.

I don’t want to mire myself in local law, but by way of analogy here’s the primary federal obstruction of justice statute, 18 USC 1512:

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to --
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to --
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
...
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense
...
shall be fined under this title or imprisoned not more than ten years, or both.

So if (and it's a huge "if") then-Cardinal Ratzinger, in his capacity as Grand Inquisitor, ordered bishops not to forward allegations of abuse to the police without premission from the Vatican, for up to ten years after the accusing child turns 18, upon pain of excommunication, then that would seem to clearly satisfy “knowingly uses intimidation, threatens, or corruptly persuades another person” to “hinder, delay, or prevent the communication to a law enforcement officer or judge ... of information relating to the commission or possible commission of [an] offense.” (Again, I am only using the federal statute as a proxy – local law might well be different).

Other thoughts:

--It is being suggested, perhaps persuasively, that this letter only refers to ecclesiastical law (i.e., discipline within the Roman Catholic Church itself). Fair enough, but the response to that defense also carries weight: the letter does not say priests and bishops should, or even may, go to the police concurrently with their internal ecclesiastical investigations. Can’t something unsaid be as intimidating as something that is said? And the letter also mentions keeping evidence "confidential". That’s very dangerous territory: we we say “evidence” are we talking about testimony in an ecclesiastical tribunal or an altar boy’s stained ceremonial garb?

--Again I’m out of my element, but I presume heads of state enjoy diplomatic immunity. On the other hand, does that extend to criminal acts committed before one became a head of state? And however little I know about diplomatic law, I know even less about extradition law, so I won’t touch that either. Or perhaps declaring the Pope persona non grata would be a suitable alternative (I don’t think anyone expects Benedict XVI to visit here anyway).

--Could you imagine the firestorm in this country and around the world if a local D.A. sought an indictment against the Pope for obstruction of justice, or if a judge issued an arrest warrant? And you think the world hates America now...

Hat tip to Notes from the (Legal) Underground