July 02, 2010
In a previous post, Alexandra wrote about sexual abuse by members of the Church and possibly relevant case-law of the European Court of Human Rights. I will follow up on that post in this one.
The past week, the Belgian authorities have upped the ante in the fight against sexual abuse by members of the Catholic Church. An investigative judge ordered house searches in several buildings, including a cathedral, belonging to the Church. During the searches, the police looked for evidence of knowledge of – and thus, attempts to hide – the sexual abuse by the Church. They also seized the 475 personal files of victims that had reported their abuse to the so-called Commission Adriaenssens. The Commission had been set up by the Church itself as an organ of independent experts that would examine the sexual abuse by members of the Church in Belgium. Following the search and the confiscation of the files, the Commission decided to disband since it felt it could no longer fulfil its task. The President of the Commission expressed outrage over what he called a violation of the victims’ privacy. Members of the Church, going as high up as the Vatican itself, expressed similar outrage over the searches. The Vatican described these as worse than the practices during the Communist regimes. But also the victims whose files had been confiscated did not go unheard. One victim filed a complaint with the investigative authorities, claiming to be disadvantaged by their actions, in order to get insight into the files and closer involvement in the procedures. Other victims have joined together to, now that the Commission Adriaenssens has disbanded, demand a Parliamentary investigation into the crimes of sexual abuse by Church members.
The various reactions reveal that the house searches, and especially the seizure of the personal files of the victims that had stepped forward, pose difficult issues. I would divide the complaints into two different categories. The complaints of the Church and the Vatican about the manner in which the searches were conducted constitute the first category. The complaints of the Commission and the victims about the violation of the victims’ privacy constitute the second. I will discuss these in turn.
The complaints of the Church basically boil down to outrage over what it concerned to be improper investigation methods. The Church condemned the exaggerated, action movie/book style – reference was made to The Da Vinci Code – manner in which the searches had taken place. It complained specifically about the opening of the grave of a former Cardinal and the destruction of walls behind which the police hoped to – but did not – discover secret hiding places. These complaints are connected to the manner in which the searches were conducted, rather than to the searches as such. Thus, they are closely connected to an increasingly popular notion within the legal academic literature: that of procedural justice. Proponents of procedural justice – in short and as I understand it – argue that it is fundamental for the legitimacy of a justice system or a particular judicial investigation to pay careful attention to elements that are – broadly – related to close involvement of and respect for the persons concerned. These elements – the argument goes – will contribute to the acceptance of decisions that the persons concerned would otherwise consider unfair, because they would, for instance, feel disrespected or feel treated as an object rather than as a subject. I am not very familiar with the full extent of the argument for a theory of procedural justice, but I feel intuitively attracted to it, since it combines arguments of principle with arguments of practice that – at first glance – find support in analogous arguments that have offered a strong defence for, for instance, Dworkin’s right to equal concern and respect and Habermas’ discourse theory of law and democracy and – more particularly – his procedural concept of democracy. Based on arguments of procedural justice, one could argue – and I consider this reasonable – that the Belgian authorities should have acted more prudently while conducting the searches. The same effect could have easily been obtained by taking a more modest stance in carrying out the investigation, rather than pursuing the bombastic route that the investigative authorities did. Of course, this does not say anything about the legitimacy of the searches themselves. I will return to that point later on.
What I consider to be a more important complaint is that of the second category: the complaints related to the victims’ privacy. The argument goes that the victims who had stepped forward to speak to the Commission about their sexual abuse had done so in confidence, believing that the information they supplied would be used only by the Commission. When the investigative authorities seized those files, the argument continues, the victims’ privacy was violated. This argument carries, at least prima facie, some strength. Victims might be afraid that now the public will come to know their identity or that their friends and family, who might not know about the abuse, will find out through the investigation. But there are of course also other considerations at stake. The right to respect for the private life of the victims could be opposed to – I think – three different other rights or interests. Although all three categories present different issues, I will in the end combine two of them in a broader argument that justifies violation of the victims’ privacy.
First of all, during a discussion we had about the seizure of the files, it was suggested that the state has an obligation to investigate the crimes of sexual abuse committed by members of the Church and to punish the ones responsible in order to protect the rights of potential future victims (the right to protection of physical integrity and the right to be free from torture and inhuman treatment). The argument was thus framed as a conflict of rights. However, I do not believe this is accurate. I would not say that this concerns a genuine conflict of rights. Firstly because the group ‘future victims’ is an abstract group, whose size is completely uncertain. It would have to include not only every child currently alive in Belgium, but also all children that will be born in the future. The latter – clearly – cannot be said to have a right to protection of their physical integrity, simply because they do not exist yet. But also regarding the former I do not feel entirely comfortable speaking of a conflict of rights, since it concerns such a large segment of society that it risks distorting the ‘conflict’ if their aggregative interests are put against those of the comparatively small number of persons whose right of privacy is at stake. This brings me to a second remark. The right to physical integrity of the future victims is not necessarily at stake. We clearly spoke of the rights of potential future victims, precisely because we cannot assume that the sexual abuse will continue in the future. We should thus conclude also that any violation of their rights is speculative. When combining the above arguments, I would argue that, rather than resulting in a conflict between rights, a concern for future sexual abuse should be brought under the general interest of prevention of crime. As a result, the right to privacy of the victims whose files have been seized would need to be assessed against the obligation of the state to protect its citizens by preventing future crimes.
A second possible opposition exists within the group of victims whose files have been seized. It is clear that some victims rely on their right to respect for private life to object to the confiscation and use of their files. Presumably they do not wish any criminal proceedings to take place and were content with the Commission set up by the Church. Other victims, on the other hand, clearly want the ones responsible to be punished. Additionally, we need to take into account the fact that the 475 files do not represent the totality of all victims. A member of the Commission, a professor specialized in child abuse, estimates that there could be as much as 5,000 victims. Obviously, there will be victims who want justice, who want a criminal investigation to take place. Thus, we are faced with a dilemma within the group of victims, between those who want their privacy respected and those who want to see those responsible punished (or want to prevent that anyone else would have to suffer what they suffered). Here it seems more conceivable that we would speak of a conflict of rights, where the right to privacy of the first group is opposed to the right to justice of the second (in terms of enforceable legal rights, the latter could be rephrased into a right to an effective investigation into the sexual abuse). I will use this element of justice when drawing a general conclusion on the issue below.
A final opposition could be found within the victims who invoke their right to privacy to prevent the use of their files. One could argue that this right should be disregarded for paternalistic reasons and that prosecution of the perpetrators should take place nonetheless. However, I feel highly uncomfortable with such use of paternalism that disregards the victims’ own preferences, especially when they rely on their individual rights to protect these preferences. I would thus not accept such an argument.
In combining the first two arguments, and adding to them the interest of the entire population of Belgium, I would argue that the right to respect for private life of the victims is outweighed by the demands of justice and prevention of – particularly heinous – crimes. I would argue that the state authorities were thus justified, even under a duty, to confiscate the files in order to institute a formal criminal investigation against those responsible. Not only to potentially punish the actual perpetrators – for whom the prescription period might in many cases already have passed – but also to investigate whether the higher ups within the Church attempted to cover up the crimes. Not acting upon this duty would arguably go against the spirit of the European Court of Human Rights’ findings in E and others v. The United Kingdom (26 November 2002) as described in Alexandra’s post: “The Court found that the social sevices had failed to “discover the exact extent of the problem and, potentially, to prevent further abuse taking place.” (par. 97). Therefore, the Court judged that a violation of article 3 (freedom from torture or inhuman or degrading treatment) had taken place.” However, the investigating authorities should also pay careful attention to concerns of procedural justice in respecting as much as possible the victims’ demands for involvement in the procedure and their concerns about their privacy.
Finally, if the given arguments outweigh the privacy of the victims, they must certainly also outweigh the objections of the Church to the searches themselves. The Church does not have – and cannot be granted – any immunity against criminal investigations. After all, if similar atrocious crimes had been committed within the private school system, certainly no one would be satisfied with the establishment of a Commission by the schools themselves. So why would such an instrument suffice in the case of the Church? Justice and the prevention of crime demand a real investigation.