Shall we arrest the pope?

There would be a certain irony if Joseph Alois Ratzinger, the 265th "pope", was arrested, charged, convicted, and punished in controversial circumstances.

For after all, that is what supposedly happened to Jesus of Nazereth, and so led to the various religious movements which we now generally call "Christianity".

Such an irony would in some ways be pleasing, for the Roman Catholic church has long sought arrogantly to put themselves beyond the reach of the civil authorities.

In principle, watching the pope do the "perp walk" - perhaps handcuffed to some surly female police officer - would be satisfying to those, like me, of a strong atheist and anti-clerical temperament.

However, such fantasies must yield to the fundamental liberal requirements of due process and the rule of law.

Of course, Ratzinger should not be immune from arrest or charge, prosecution or punishment, just because he is the pope; but he also should not arrested or charged, prosecuted or punished, just because he is the pope.

A proper secular and liberal approach would be to disregard all the paraphernalia of his papal office.

Instead, it would be to treat Ratzinger simply as any other potential suspect in these sordid circumstances: a perhaps foolish or culpable old man - amongst others - who may - or may not - have been complicit in either horrendous sexual abuse against children or the cover-ups afterwards.

Any arrest would then be because that there was evidence that he had committed an identifiable criminal offence.

It should not be the case that, for vague and well-meaning reasons, we have deemed that somehow he should be arrested or put on trial anyway.

For, unless there is evidence in respect of a specific offence, one would simply be placing Joseph Ratzinger in the place of Josef K.

And so this is where I part company with Richard Dawkins, who has recently stated:

"Why is anyone surprised, much less shocked, when Christopher Hitchens and I call for the prosecution of the pope, if he goes ahead with his proposed visit to Britain? The only strange thing about our proposal is that it had to come from us: where have the world's governments been all this time? Where is their moral fibre? Where is their commitment to treating everyone equally under the law?"

Do read this Dawkins article carefully.

See how he calls not for an investigation but - expressly - for a prosecution.

But see if you can identify under which actual offence Dawkins believes that Ratzinger should be prosecuted, as opposed to a general - and clearly deeply-felt - desire to have such a prosecution.

Dawkins does not identify any offence.

But it would appear that Dawkins wants to prosecute Ratzinger anyway.

One could almost say that the great thing about legal opinions like that is that we should safely ignore them.

For, as Church Mouse sets out in an excellent blogpost, there is not a criminal offence in respect of which there can be an arrest.

(The Heresiarch came to a similar conclusion.)

And in an outstanding piece of legal blogging, Dapo Akande sets out that even the "threshold" issue of whether Ratzinger as Head of State of Vatican can be prosecuted is an extremely difficult one to overcome.

One can sympathise with Dawkins - and also Geoffrey Robertson, who similarly fails to specify the actual offence under which he would like for Ratzinger to be prosecuted - that some grand gesture should be made in respect of Ratzinger's apparent role in all the vile abuses and cover-ups.

But just arresting and prosecuting Ratzinger for the sake of arresting and prosecuting him would, of course, be misconceived.

A more sensible and appropriately secular response to the unfolding scandals would be to insist that criminal investigations are commenced and allowed to run their course without regard to any special or privileged position of Roman Catholic clergy.

And the Roman Catholic clergy should co-operate fully and openly with these investigations.

The whole situation just needs to be thoroughly secularised.

If these investigations lead to there being sufficient evidence to arrest and charge any individual - including Ratzinger - such arrests and charges should be made.

Any attempt by Ratzinger or any other suspect to rely on the doctrine of sovereign immunity or some other privilege can then be squarely addressed.

There is always an impulse to use the coercive power of law as an aid in controversial issues: for example, alternative health practitioners sue for libel just as Christian Evangelicals used to try and bring blasphemy prosecutions.

But it is an impulse one really should resist.

Calling for the immediate arrest and trial of Ratzinger without any attempt whatsoever to identify the relevant offence strikes me as an illiberal and even discrediting exercise.

Instead, stripping the Roman Catholic church of any actual or imagined immunities and privileges, and insisting criminal investigations take their proper course, is the better position.

Then any consequent prosecutions and punishments will have a far sounder and resounding basis: a basis consisting of due process, the rule of law, and an entirely secular view of the world.

So should we arrest Ratzinger?

Yes, but only if that is where the operation of due process and the rule of law actually take the investigating and prosecuting authorities.

And, should this happen, then that really would be the "perp walk" to behold.



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