Tuesday, July 06, 2010
Danneels: wat kan en wat kan niet? - Hbvl.be
What is the situation of Danneels in criminal law? Can he be prosecuted? And when would that be? How can he defend himself? All at a glance:
* If Danneels was aware of a crime he had not reported to the court. Only officials have an obligation to report and even for them there is no penalty if they do not.
* Danneels has - in religious terms - a secret of confession. That means he can never disclose a confession even with the consent of the penitent, even after his death. He cannot even say whether there has been something confessed. Pope John Paul II said that again solemnly on April 30, 2001 in the motu proprio "Sacramentorum Sanctitatis tutela" with regard to the Sixth Commandment! The question whether a simple confession of sexual abuse by a priest to his bishop is considered a confession may arise. Some church lawyers say yes, others not because the sacramental rite was not fully respected. Danneels can rely on the secret of confession, but he will not have much success, because the confession secret is not recognized in common law.
* Danneels can rely on professional secrecy not to provide information about sexual abuse. This is partly broader, part narrower than the secret of confession . The Cardinal learning confidential information through his office is covered by this secret. That confidentiality is broader than the secret of confession because the information can be not only about perpetrators, but can be from everywhere. It is also limited because the secrecy is not absolute: the court can determine whether certain elements within the secrecy and in emergency can be lifted. This can be for example in the case of sexual abuse of minors. In such a case, Danneels can forego professional secrecy and give the facts reported to the court, but he does not have to.
* Can Danneels be prosecuted for gross negligence because he may not have reported sexual abuse to the court? That is only if he has not given "appropriate assistance" to someone who is in immediate and imminent danger. For example, the victim (or another victim of the same perpetrator) may be in immediate risk of sexually abused by a priest who has confessed. In this case, the cardinal should offer "appropriate assistance" . This can be a complaint to the court, but not necessarily so. If Danneels offered appropriate help in such a case, there is no gross negligence. Also: prosecution for gross negligence in respect of acts that have lapsed, or for cases where there is no immediate danger, it is not possible. The likelihood of prosecution for gross negligence of Danneels is very small.
* Have Cardinal Danneels then and Archbishop Leonard now - as the boss of their priests - civil liability for harm to victims harmed by sexual abuse by their priests? Under current law no- because the bishop-priest relationship in employment law is not an employer-employee relationship and thus there is no civil liability. This was confirmed on September 25, 1998 in the Case of Van der Lijn, the pedophile priest of Saint-Gilles.
* Cardinal Danneels as any citizen can be questioned. He may, from the first trial - according to the Salduz ruling of the European Court of Human Rights in Strasbourg - be assisted by his lawyer. He was. Moreover the College of Procurators General recommends that this first interview is videoed. Danneels is heard as a witness, not as a suspect.The case file is run against strangers. If Danneels is under suspicion, he may discover the full case against him. As a witness he cannot. That gives the examining magistrate and his investigators a certain advantage.
The Federal Police finished their interview at 19.45. A day that the Belgian Church will long, long remember.