Editor’s note: This essay was published in German at kath.net last week and was translated into English, with the permission of the author, by Frank Nitsche-Robinson.
Munich (kath.net) “Benedict’s lie!” – this accusation is haunting the press landscape, including the highly intellectual one, in order to condemn Pope Emeritus Benedict XVI / Joseph Ratzinger, one of the greatest scholars of our time and at the same time one of the most successful persecutors of abusers in Church history, as untenable and silence his voice. He is accused of lying because he could not remember a meeting from more than forty years ago.
The accusation of lying, however, always includes the intent, if not the intention, which is also more incidentally imputed to him. An accusation devoid of substance, but full of ideological motives, in order to enforce one’s own opinion of the Church, theology and philosophy, which is diametrically opposed to that of the former Pope.
This accusation, however, ignores how very accommodating Benedict was when he agreed to answer the questions of the lawyers commissioned and paid by the Archbishopric of Munich-Freising. These lawyers are not endowed with any legal competence and, moreover, were only commissioned to prepare a purely, and basically irrelevant, private report. Anyone who is only somewhat familiar with court proceedings knows about the problems inherent in private reports. Anyone who has a report prepared privately not only has to bear the entire cost of the experts, but also has a special interest in the result. Since, as a rule, experts are known, and it is also known how their evaluations have turned out in other matters of the same nature, the client does not exactly expect his own opinion to be confirmed, but he hopes for it nonetheless.
The archbishopric, represented by Archbishop Cardinal Marx, is aware of the result reached by the experts in the matter of the Archbishopric of Cologne. As a result, the client from Munich could hope that the opponents of his own view of the Church could also be accused of reprehensible actions in the report that has yet to be prepared. What obviously also comes to bear in the background is the fact that Cardinal Marx has a different view of the future of the Church than Pope Emeritus Ratzinger. While Cardinal Marx sees the future opened up by the so-called Synodal Way, Benedict is a strict opponent, because he sees the Church as a universal Church based on the foundations of the Gospel and tradition, and he therefore does not speak in favor of a protestantization of the German local churches. Possibly, due to this difference, a bias of the experts working for Cardinal Marx, which could manifest itself in a subjectively colored argumentation, cannot be completely dismissed.
Unlike the special investigators commissioned by parliaments, the authors of the abuse report are not authorized to rely on legal regulations to carry out the investigation. Therefore, they do not have the authority to threaten coercive measures if an interviewee is not willing to answer the questions – especially since the interviewee has no ability whatsoever to object to false allegations or evaluations. The evaluators can discard such objections as irrelevant and cannot be forced to deal with them. Whether they wish to consider objections or disregard them depends solely on the goodwill of the appraisers. This alone is evidence that private reports are an unsuitable means of replacing, so to speak, the prosecutor’s investigative work.
Although the private report, which Cardinal Gerhard Ludwig Müller calls a commissioned report, was supposed to be as objective as possible, it also inevitably represents a subjective opinion. And yet: In public, it is regarded as a quasi-legal decision, even though private reports cannot carry any legal force whatsoever. In court proceedings, therefore, they have no notable significance, since as a rule decisions are made only on the basis of the report ordered by the court, although the court-appointed expert must deal with the private opinions if the court so decides.
Strictly speaking, the abuse report can only be a preliminary for court proceedings in which the persons concerned can defend themselves in a legal manner. As a private report, the abuse report is merely a party opinion commissioned by the archdiocese. It was not commissioned by a third party, by an independent institution, thus it cannot be ruled out that the interests of the client were taken into account, as is customary with party opinions.
Incidentally, this private report by three experts is characterized by the fact that it all too often speaks of an initial suspicion, which, as is well known, does not yet suffice for an indictment. However, the verdict is already construed from the initial suspicion. The prosecutors, as which the experts present themselves, immediately mutate into judges in order to pass a verdict, which, while not a verdict from a formal legal point of view, has in fact taken on this quality, as the reactions of the press and the public have proven.
In order to do justice to this claim, however, it would have been incumbent on the experts to gather evidence and to document it. There is nothing in the respective chapters of the report that would suggest that the experts had dealt with Benedict’s arguments substantially. Their conclusions are riddled with doubts, which, however, were ultimately disregarded. Although the experts initially referred to the principle of the presumption of innocence, there is no longer any mention of this in the summaries that comprise the verdict. They apparently no longer wanted to meet their own standard.
Even if it could be inferred from the files that Archbishop Ratzinger is supposed to have spoken with the delinquent persons, only the fact that a conversation took place is on record. However, what was talked about is not evident from the files. But in the course of pure speculation the experts presume the content to be known, whereas speculation does not manifest itself as court-proof evidence, but only as a probability or even hope to be able to justify a violation. However, if a violation cannot be proven conclusively – even by circumstantial evidence – then the accusation must necessarily be dropped. This, plainly, is what the legal system, which does not permit any ideological approach, stipulates.
The report seems odd, when it mentions Benedict employing stereotypes and displaying a lack of knowledge of the facts. It should therefore be remembered that the case of Cardinal Ratzinger deals with incidents that occurred forty years ago. Anyone who after forty years still remembers which meeting he attended on a particular day is likely to be a superhuman. If Benedict had actually attended the incriminated meeting on such a day, it would be proven by his signature in the minutes – which is the case. The experts would therefore have been obliged to refer Benedict to the minutes in advance; after all, he kindly and voluntarily agreed to participate in this non-formal procedure. After the expert report was published, Benedict reviewed the presentation and immediately admitted to having participated in the meeting as a matter of course. Thus, it would have been appropriate to point out to Benedict the inconsistency in his admission before the report was published. Why this was never done can be speculated only.
However, this omission on the part of the experts alone shows the special character of this private report. If the matter had been pointed out to Benedict in advance, one would have lost a trump card. And it appears that the rules of objectivity in this private experts’ assessment – at least in partial areas – were disregarded. It would also have been an act of fairness – there is no legal obligation, since the entire procedure is not standardized – to point out Benedict’s mistake before publishing the report, but this was not done.
In the meantime, Benedict has admitted the error, which, by the way, he would have done immediately if an expert’s note had been issued in advance. Of interest is also the question that was discussed in the incriminated meeting. According to Archbishop Gänswein, there was no discussion about the pastoral use of the priest, but only about how the priest could be accommodated. Since this circumstance is evident from the files, it should have been presented to Benedict before the report was published. Then, having corrected his error in time, the former pope – after all, the greatest investigator of abuses in the Roman Church – would have been spared being accused and insulted as a liar by journalists, and no opportunity to attack the Church as a whole and declare it obsolete, based on the accusations made against Pope Emeritus Benedict, would have been created. The state and other institutions, in which abuse has taken place to a considerably greater extent, have so far kept an extraordinarily low profile with the investigation, and the press has hardly addressed this reticence, which is surprising.
The experts’ comment that Benedict only referred to what was recorded in the file is unacceptable. One could think, may I be allowed to remark, that the experts had never conducted a trial. In the report procedure, which cannot conceal the design of a tribunal, Benedict, who is regarded as the person of concern, is not likely to present more than what results from the file of the experts. Irrespective of the fact that he might not have to incriminate himself – which, however, is impossible in the present case – it is incumbent on the appointed lawyers to clarify the matter. Therefore it would have been the task of the experts to ask appropriate questions, even probing ones, which is, after all, what they are being paid for by the archdiocese, even if Benedict was willing to help clear up the cases.
The abuse report of the Archdiocese of Munich-Freising has again provided proof of how little such commissioned or private reports are suitable for bringing light into the darkness of events. Even if an attempt is undoubtedly made to investigate objectively, the subjective element can never be ruled out, and in the present case it has not gone unnoticed. This momentum is simply immanent to a private experts’ assessment. This is also not contradicted by the fact that the client, Archbishop Cardinal Marx, is accused of misconduct himself.
But that is another area which others must tend to. We believers and members of the Church can only hope that the investigation in the Church will be tackled by an institution that works objectively and is bound by standards. The abuse – and this must always be borne in mind – has taken place in the visible Church, in the Church of the people, a place where individuals burdened with original sin are active. However, the invisible Church founded by Jesus Christ himself remains unaffected by this. It is based on divine right and is therefore removed from the sinfulness of people. This difference should always be kept in mind. People, priests or not, who have sinned must be brought to the jurisdiction of the state. They have no place in the visible Church.
The one of 1.3 billion Roman Catholics who has distinguished himself as the one who has taken the toughest action against abusers and has laicized hundreds of clergy for being delinquent in abuse, Pope Emeritus Benedict XVI, is now being accused, with flimsy, irrelevant arguments without substance – with conjecture – of having been delinquent himself. Even if the experts acted on behalf of Cardinal Marx – while not disregarding Benedict a priori, it would have been appropriate, especially since there are no legal regulations for a tribunal, in consideration of his importance for history as a whole and for the history of the Church, for theology and philosophy, to at least treat him with fairness and a certain respect, the natural respect of faithful Catholics towards their highest representative on earth.
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