Prosecutor's Office accused of timidity and deference in Munich church investigation

"Holy timidity" in investigations against the Church?

The actions of the investigators in the abuse scandal at the Archdiocese of Munich show: The Church will also be prosecuted. Nevertheless, public prosecutors are having a hard time, say criminal lawyers, and speak of an "inhibition to bite" against the church.

This news is causing quite a stir: The Munich I Public Prosecutor's Office made representations to the Archdiocese of Munich in mid-February with a search warrant, as the "Süddeutsche Zeitung" has learned. The action is said to be related to the abuse scandal and cover-up allegations against diocesan officials. According to the report, the investigations are not directed against Cardinal Reinhard Marx.

The background: In more than 40 cases, the public prosecutor's office is currently investigating possible misconduct by church leaders in the past decades. The investigations have been ongoing since the presentation of the sensational Munich Abuse Report in January 2022. The fact that there has now apparently been a search is a watershed for experts. Canon lawyer Thomas Schüller, for example, speaks of a "turning point in the relationship between state justice and the churches".

"Holy timidity" of the state in criminal law against the church

But why were there no investigations by criminal lawyers and public prosecutors much earlier, when the abuse cases have been known for a long time? Are public prosecutors too cautious in dealing with the Catholic Church's abuse cases, and shouldn't state authorities have intervened earlier? Yes, say some criminal lawyers, such as Passau criminal law professor Holm Putzke. For him, there is no reason for a special legal role for the church, as he told BR a few months ago: "A consideration or even the idea that the church should primarily take care of its own affairs would be a fundamental mistake. [...] The judiciary still has a certain 'holy awe' of the Catholic Church. But this should finally be discarded."

Criminal law professor speaks of a reluctance to bite

According to Putzke, it is noticeable that the public prosecutors' offices have something like an inhibition to bite when it comes to the Catholic Church and dealing with cases of abuse. It is not the case that the public prosecutor's office always has to wait until someone opens the door and brings in the files. No! If the public prosecutor's office learns, for example from the media, that there is a certain expert opinion that is perhaps being kept under lock and key, then it must act ex officio and, if necessary, also seize this expert opinion or - if it is not handed over voluntarily - confiscate it." According to this, Bavarian prosecutors could have seized the unpublished expert opinion back in 2010 - and investigated. But they did not.

Former justice minister admits omissions: deference to the church

Not only Putzke, but also other observers attest to the prosecutors' restraint in prosecuting church abusers, among them criminologist Christian Pfeiffer. He was Minister of Justice in Lower Saxony from 2000 to 2003. He is now self-critical of his role at the time, as he emphasised last year: "It didn't even begin to occur to me to talk to the prosecutors general about the need for a fundamental investigation here. That didn't happen until ten years later. But that would have been the time when the judiciary should have taken action on its own." In the meantime, most of the offences are time-barred. The criminologist Pfeiffer also explains the fact that the state did not intervene earlier with a reverent attitude towards the church.

Church law reaches its limits in the case of sexual abuse offences

Georg Bier is a professor of canon law at the University of Freiburg. He too finds: Abuse is a matter of criminal law, and this is where the Church and its own ecclesiastical law reach their limits, where the state must intervene: "Ecclesiastical law is not made for punishing offenders, and certainly not offenders of this calibre - these are capital crimes - offenders. Rather, it is a matter of looking at what consequences this criminally relevant misconduct has within our institution, irrespective of the fact that someone who rapes minors belongs in prison for a certain period of time under secular law."

Only since 2021 has sexual abuse been considered an offence under church law

In December 2021, the Vatican's new criminal law came into force. Only since then has sexual abuse in the Catholic Church no longer been considered merely a violation of celibacy. Unlike state courts, however, a church court cannot impose prison sentences, but can dismiss an offender from the clergy, for example. Even Pope Francis recently admitted that ecclesiastical criminal law alone cannot curb sexual abuse.

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