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Monday, May 4, 2015

International Judicial System: The Vatican City State & Crimes Against Children

By Michelle Hoffmann

The Vatican City State is the last remaining monarchy in Europe and has a decentralized multiple coordinated system. It was by the Lateran Treaty of 1929, signed by Mussolini and a representative of Pope Pius XI, that the Vatican claimed statehood. While the Vatican City State is recognized under international laws and does enter into agreements with the international community, it is not a civil state. Thus being, all legal matters within the Vatican City State concerning the church are viewed under Canon law; other legal matters are dealt with by Italian Law in Rome (Encyclopedia of the Nations, n.d.). Because of the power and authority that have been bestowed upon the Pope, there has been a structure of official agencies which have been created and from which power is administrated within various categories. The name that this complex structure has been given is the Roman Curia, whose members are appointed by the Pope. Each of these members performs their duty in the name of the Pope, with his authority and for the good of the church (Encyclopedia of the Nations, n.d.). Recently, this structure has come under fire, due to the transgressions which have taken place in the past, worldwide, within the church, regarding alleged crimes against children by those who deem themselves to be leaders and moral guides of the people.

The Vatican's legal code has recently been updated by Pope Francis to include acts against children, i.e. child abuse, child pornography, recruitment of children, child prostitution and sexual acts with a child (Uebbing, David) as crimes against humanity and punishable as such. This allows the "Holy See to prosecute any of its officials who commit crimes outside its walls (Uebbing, David, 2013)". These new laws allow for the indictment and prosecution of criminals by both the Holy See and the country in which the crime took place (Shea, 2012).

Politicality

The Vatican City State is governed by the Pontifical Commission. Recently, Pope Francis has put into commission, a separate Political Commission for the Protection of Minors. It is this commission's job to advise the Pope on "ways to prevent abuse and provide pastoral care for victims and their families. (Vatican Radio, 2014)". It is the president of this Pontifical Commission who can enact decrees for the implementation of legal provisions and regulations as well as decrees which, if confirmed by the commission, become law. While the Pontifical Swiss Guard is not governed by the Vatican City State, the president of the Political Commission for the Protection of Minors has recourse to the guard, if needed, in addition to the security forces of the Vatican City State (Vatican Radio, 2014).

Specificity

The Vatican City State is overseen by two separate but distinct police forces, The Italian Gendarmerie and The Swiss Guard. The Gendarmerie Corps of Vatican City State, is made up of a 130 member security force which is led by Domenico Giani, the sitting Inspector General. The Italian Gendarmerie Pontifica is the police force in charge of the internal security of the Vatican City, including St. Peter's Square. On the other hand, it is the Swiss Guard which has control over the personal safety of the pope (World Public Library).

Uniformity

Established in 1987, legislation was enacted which vested judicial authority in one Judge, a Supreme Court of the Vatican City State which is made up of three members; the cardinal prefect, who is appointed by the pope, and 2 other cardinals of the Prefect Signatura, appointed by the cardinal prefect, as well as two subordinate courts; the Appellate Court of Vatican City and the Tribunal of Vatican City (Shea).

Penal Sanction

Since Pope Benedict XVI, there have been new changes made to The Vatican City State legal system. The Vatican City State, having abolished the sentence of life imprisonment, has opted instead for a sentence of 30 to 35 years. However, because there is no jail in the Vatican City State, anyone who receives a jail sentence, would be sent to Italy to serve their sentence - with the Vatican covering the costs involved. Also instituted are the "specification of due process within a reasonable time" and a presumption of innocence of the accused as well as broader definitions of what constitutes crime against minors and crimes of divulging documents and information (Romano,L'Ossevatore,2013).

Before this time, however, the Roman Catholic Church and the Vatican City State continued to cover up or dismiss the allegations of crimes against humanity. It was not until Pope Benedict XVI came into power that these crimes started to come to light and are finally being prosecuted.

Mens Rea and Actus Reus

Due to the fact that the judicial structure of the Vatican City State is based on the Italian judicial system and is subject to Canon Law, any crime against a minor, according to Ecclesiastical law which states, "the law, either eternal or positive, that governs order, the relation of man to God and of man to man, and any defection from that order constitutes a frustration of the designs of Providence (Canon Law Centre, 2015)", is considered both an act of mens rea (having a guilty mind) and actus reus (a physical, aggressive act). This crime would then also fall under Canon law (Canon Law Centre), which is punishable under the laws of the Italian Gendarmerie.

Causation

Vatican City, having a population of approximately 800, 450 of which are Vatican City State residents. While being one of the smallest countries in the world, this tiny country has the highest crime rate in the world, per capita. It has been estimated that there are 1.5 crimes per person living in this tiny country. However, this statistic can be misleading. The high crime rate is actually due to the millions of visitors which shuffle through its borders each year to visit the Vatican Museums and St. Peter's Basilica. Most of these are petty crimes such as pickpocketing and theft, and are rarely solved (Uffici di Presidenza S.C.V., 2014).

Harm

On July 11, 2013, The Holy See adopted “laws to penalize offenses against children, but those laws are only valid in Vatican City (Brown, J, 2014).” On Jan. 31, 2014, in response to these laws, the U.N.’s Convention on the Rights of the Child replied that “the Holy See does not seek extradition of persons for the purposes of prosecution . . . (Brown).” These laws give a much broader definition of what constitutes crimes against children and includes child trafficking, child prostitution and recruiting children, as well as the production and possession of child pornography, sexual violence, and sexual acts with children (Associated Press, 2013). Until this new penal code was enforced, these types of crimes would have carried a maximum penalty of three to 10 years (Associated Press). Because of the adoption of the new laws, the punishment can be from five to 10 years, up to a maximum of 12 years, with aggravating circumstances (Associated Press). In a study done by John Jay College of Criminal Justice of the City University of New York, it was determined that, during the period from 1950 to 2002, a total of 10,667 individuals had made allegations of child sexual abuse (John Jay College of Criminal Justice, 2004).

Corpus Delicti

Many times, prosecuting allegations of child crimes is difficult due to the victim, a child, not wanting to come forward. Other times, it can be because of a cover up by the perpetrator of the crime. In the Victims’ Communication Pursuant to Article 15 of the Rome Statute Requesting Investigation and Prosecution of High-level Vatican Officials for Rape and Other Forms of Sexual Violence as Crimes Against Humanity and Torture as a Crime Against Humanity of 2011, it is stated “It is respectfully submitted that on the basis of the information set forth herein, complete with more than 20,000 pages of supporting material, crimes within the jurisdiction of the International Criminal Court have been committed by high-level Vatican officials that warrant the Prosecutor initiating an investigation into these crimes…The Prosecutor is therefore requested to open such an investigation and receive additional information regarding these crimes, including in the form of oral testimony heard at the seat of the Court, from relevant sources, including the survivors of abuse by priests and other members of the Catholic clergy, about the crimes set forth herein (Spees, P, 2011).”

Due Process Model vs. Crime Control Model

The model of crime control that seems to be in place in the Vatican City State is the due process model. In this model of crime control, suspects are innocent until proven guilty. The problem with this model, when trying to prosecute the crimes against children within the Vatican City State, is that the Roman Catholic Church has been known to hinder investigations by threatening or paying off the victims (Spees, 2011). With the Crime Control Model, the victims of these crimes against humanity would be more likely to see their captors pay for the crimes which they had committed. No longer would it be so difficult to get the justice that they seek.

It is with the entrance of the new Pope, Pope Francis, that there is now a new found hope that these crimes against humanity will be brought to the fore-front and that this will bring about a change in the procedures and laws that govern the Vatican City State. The abuses that had transpired in the past, due to the rampant abuses of power by those who seek to conceal, mitigate or outright deny that any wrongdoing had taken place, were simply ignored. If sufficient pressure, or public scrutiny, was brought to bear, a simple reshuffling of personnel, rather than action against the perpetrator was taken. The new direction of the Vatican City State is more in line with the public view that those who commit crimes against humanity should be called to task, and if found guilty, punished for their actions, no matter what their standing within the church community is or what office they hold.

References

Associated Press, The. (July 11, 2013). Pope criminalizes leaks, sex abuse in first laws. USA Today. Retrieved from http://www.usatoday.com/story/news/world/2013/07/11/pope-criminalizes-leaks-sex-abuse-in-first-laws/2508013/

Brown, J. (February 10, 2014). United nations, the vatican and crimes against children. Newsslinger.com. Retrieved from http://www.newsslinger.com/united-nations-the-vatican-and-crimes-against-children/

Canon Law Centre. (April 22, 2015). Notion of crime. The. Canon Law Centre. Retrieved from http://www.canonlawcentre.com/2013/04/22/the-notion-of-crime-in-canon-law/

Encyclopedia of the Nations. (n.d.). Vatican City - Politics, government, and taxation. Retrieved from http://www.nationsencyclopedia.com/economies/Europe/Vatican-City-POLITICS-GOVERNMENT-AND-TAXATION.html

Eubbing, David. (2013). Pope’s legal changes respond to globalization of crime. National Catholic Register. Retrieved from http://www.ncregister.com/daily-news/popes-legal-changes-respond-to-globalization-of-crime

Fodden, S. (2010). The vatican as a state. Slaw. Retrieved from http://www.slaw.ca/2010/09/14/the-vatican-as-a-state/

John Jay College of Criminal Justice. (2004). "Executive summary". The nature and scope of sexual abuse of minors by catholic priests and deacons in the united states 1950–2002. ISBN 1-57455-627-4. Retrieved from http://www.usccb.org/issues-and-action/child-and-youth-protection/upload/The-Nature-and-Scope-of-Sexual-Abuse-of-Minors-by-Catholic-Priests-and-Deacons-in-the-United-States-1950-2002.pdf

Romano, L’Osservatore. (2013). Penal laws of the Vatican modified. News.VA, Official Vatican Network. Retrieved from http://www.news.va/en/news/penal-laws-of-the-vatican-modified

Shea, A. (2012). UPDATE: Researching the law of the Vatican City State. Hauser Global Law School Program. Retrieved from http://www.nyulawglobal.org/globalex/vatican1.htm#_3.3_Judicial_Matters

Spees, P. (2011). Victims’ communication pursuant to article 15 of the Rome statute requesting investigation and prosecution of high-level Vatican officials for rape and other forms of sexual violence as crimes against humanity and torture as a crime against humanity. Center for Constitutional Rights. Retrieved from http://s3.documentcloud.org/documents/243877/victims-communication.pdf

Uffici di Presidenza S.C.V. (2014). Population. Vatican City State. Retrieved from http://www.vaticanstate.va/content/vaticanstate/en/stato-e-governo/note-generali/popolazione.html

Vatican Radio. (2014). Pontifical commission for the protection of minors: an inside view. News.va. Retrieved from http://www.news.va/en/news/pontifical-commission-for-the-protection-of-minors

World Public Library. (2015). Crime in Vatican City. Project Gutenberg Self-Publishing Press. Retrieved from http://self.gutenberg.org/articles/Crime_in_Vatican_City