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Telling the Truth about Torture



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Secularists seem to have captured ideologues in the United Nations to drive through their agenda at a time when the world seems to be open to the liberating need for real religious faith in the world — something our Founders knew was essential for democratic life, and something men and women in regions most hostile to religious freedom are willing to die for, as a pregnant woman currently sitting in a Sudanese jail cell reminds us. Just as a United Nations committee is set to release a post-hearing report on the Holy See and the Convention on Torture, University of Mississippi Law School professor Ronald J. Rychlak has published a helpful paper, Abuse of the Convention Against Torture: A Tortured Reading of the Law. For the sake of law, for the sake of freedom, for the sake of those who have and do give their lives for these values, this is not a news story to misunderstand or overlook. It’s about a new secularism that will use and abuse mechanisms meant for advancing human rights and the common good in dangerous ways. In this particular instance, instead of the U.N. working with the Catholic Church — learning the lessons it has learned and moving toward healing and protection, as U.N. peacekeepers have committed similarly abusive crimes — the horrific shame of scandal is being used as a political weapon. Rychlak​ talks with me about what’s going on and why it matters.
 

KATHRYN JEAN LOPEZ: This whole rape-torture conversation is just about the worst topic to have to talk about. Why are you bothering? And in defense of those being accused of torture?!

RONALD J. RYCHLAK: It is a horrible topic. I was working on it at my mother’s home, and I was reluctant even to show her the paper. The problem is that if we are going to take the crime of torture seriously, we need to be precise in our legal definitions. Some commentators have been blurring the lines.

Please note that when I say not every rape is torture, I am in no way suggesting that rape should go unpunished or even be lightly punished. I live in Mississippi; I’m pretty much a “law and order” guy.
 

LOPEZ: Why is it important to state that “there is certainly no defense for those who commit rape or other sexual abuse, especially when the perpetrators are in positions of authority. That does not mean, however, that rape in and of itself equates to torture”? How is it not “tortured” to try to make this distinction about something so evil?

RYCHLAKWell, we could say that all victims of crime are victims of torture, but then we lose the distinction of one crime from the other. I don’t think we want that, do we? There must be a reason why we treat crimes differently.

Should one who rapes and murders be punished more severely than one who rapes but does not murder? Should one who savagely rapes and beats a victim be punished more severely than one who takes advantage of advantage of a 17-year-old? Traditionally, I think we’ve always said yes to these questions.

One member of the Committee Against Torture has said that all women are tortured by the Catholic Church’s prohibition on abortion. If that were the case, and if there were no distinctions, then the Catholic Church would be held responsible for its position on abortion to the same extent as someone who beat and raped a victim. Is that legitimate? I say no.
 

LOPEZ: Why shouldn’t “the international community” want rape to be considered torture? Are you going to go around telling rape victims their attack wasn’t torture? Violence of that most intimate sort certainly is torture to someone being attacked.  

RYCHLAK: I speak of the legal definition of torture. I agree with punishing rape very severely. I do not minimize the crime. That does not make it torture, but I do explain in the article that rape can be an element of torture.
 

LOPEZ: On the topic of intimate violence: Some in Geneva have made the argument that it is not only priests abusing children that make the Holy See a state sponsor of torture, but Church teaching on abortion as well. What do you make of that?

RYCHLAK: It is a logical extension of the argument that we assess a crime by the way it makes the victim feel. That is not the way to assess a crime, but if you accept that all rape is torture, this is a nominal extension. One with which I, by the way, strongly disagree.
 

LOPEZ: “For legal and logical reasons, the committee’s argument is completely untenable. Moreover, it seems to have been advanced in bad faith.” Why do you go there? To “bad faith”?

RYCHLAK: I think there is evidence that the committee member in question has a pro-abortion, anti-Catholic Church agenda that this argument, which is against legal precedent, advances.
 

LOPEZ: How is this an abusive use of a U.N. committee?

RYCHLAK: The committee should be resolute in enforcing the Convention Against Torture. Instead, they are trying to use it against the Catholic Church, largely due to the Church’s opposition to abortion.
 

LOPEZ: How is this all dangerous?

RYCHLAK: The danger is that we create international bodies to advance legitimate societal goals, but they instead advance personal agendas. This is a tremendous expansion of authority beyond the committee’s charge.
 

LOPEZ: There’s something of a campaign to see rape as torture beyond the Holy See, isn’t there? What’s behind that? What’s it about? What’s significant about it?

RYCHLAK: There are some who have written about rape as torture, but that is when rape is used as a weapon in political or military campaigns. As I indicate in the article, I agree that rape in that situation can indeed constitute torture. The sex act constitutes an element of the charge, and the other elements are there too. My paper really argues that not every act of sexual abuse amounts to torture.

To take the extremes: fondling a 17-year-old minor is a very serious crime and should be prosecuted. I don’t think you can equate that with violent, widespread rape designed to intimidate a population.  Depending on what we learn at trial, the latter likely is torture; the former likely is not.
 

LOPEZ: What does Rwanda have to do with any of this? 

RYCHLAK: I wanted to analyze this the way an attorney analyzes any case: by looking for precedent. The International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY) have each had cases dealing with rape and torture. They confirm that yes, rape can be torture. They also confirm that legally, rape by itself is not torture.
 

LOPEZ: Who is Felice Gaer and why have some defenders of the Holy See focused on her?

RYCHLAK: Gaer is the American representative to the Committee Against Torture, and she has also written in support of applying the Convention Against Torture to rape. She is a strong advocate for abortion rights.
 

LOPEZ: Is there a case to make to her for the sake of human rights why her line of argument is wrong?

RYCHLAK: I guess I tried to do that in the article. For one thing, if all rape is torture, then I guess a rapist may as well go ahead and beat his victim. There would be no additional punishment.
 

LOPEZ: Why is it important to defend the Holy See here regardless of one’s point of view of the Church and its teaching? Both as a matter of law and as a broader matter? Is the Church a good thing to have around or an archaic relic, just like some other things in Rome?

RYCHLAK: The Church has done great work, and its leaders have committed many sins. From a legal perspective, though, I would not want the U.N. to feel that it has the right to eliminate any religion.

I don’t think my legal analysis would differ, by the way, if I were talking about any other religious group. I mainly applied traditional legal analysis.
 

LOPEZ: This has been an issue for some: Doesn’t this whole hearing exercise call to mind the question of why it is the Holy See is a diplomatic entity signing conventions, with a seat at the table at the U.N., in the first place?

RYCHLAK: I have a colleague who once said of tenure: I don’t know if we should have it, but I know that if we have it, I want it.” I feel that way about the U.N. sometimes. It may cause as much harm as it solves, but if we have it, I’m glad the Holy See is there. 

The Holy See seeks to bring a humanitarian outlook to the UN meetings. It advances concerns for the poor, for women, for the disabled, for religious freedom, etc. Of course, because it is also pro-life, many people would like to drive it away.
 

LOPEZ: How is it not a cop-out to say the Vatican doesn’t have legal jurisdiction against all priests throughout the world?

RYCHLAK: When is the last time you heard of anyone being sent to the Vatican to stand trial? That is not what the Vatican does. It actually has a police force in Vatican City. Priests around the world are subject to criminal prosecution in their home nations. Sanctions have been imposed on lots of priests in recent decades, but they are not criminal sanctions.
 

LOPEZ: As a historian, how do you view the horrific things that have happened in the Catholic Church in the 20th and 21st centuries?

RYCHLAK: Horrific things have happened in the Church, to the Church, and outside of the Church. We are human, and we do good, bad, stupid, and brilliant things. One would hope that the Church would do better than other entities, but the human element always comes through.
 

LOPEZ: What is important to know about how the Church responded to the abuse scandals?

RYCHLAK: I think it is important to acknowledge that the Church responded slowly. There are probably a number of factors that went into that, but I think the pop psychology of the 1970s weighed into it. So did the history of false charges being made against Church leaders; I think that probably slowed the response.

Today, the Catholic Church is ahead of the curve, and other entities are looking to the Church as a model.
 

LOPEZ: Why is it important to acknowledge what the Church has done right? Is it really possible to do so without looking like you’re making excuses for abuse?

RYCHLAK: Good point. It’s hard to defend the Church on this point without looking like you’re just making excuses, but we have to tell the truth. Pope John Paul II said “be not afraid,” and I have always taken that as “be not afraid of the truth.” The trick, of course, is not to accept the first, easy answer. Truth can be hard to see and it can be difficult to find, but it is worth it.
 

LOPEZ: People have asked the question: Has Pope Francis himself done enough in response and to prevent this kind of evil from being perpetrated by priests. Has he?

RYCHLAK: Look, if even one case takes place, there has been a failing. Yet we know that cases will happen again. I think Francis has done what is responsible and reasonable. It’s not all up to him. The scandal only got as large as it did due to a lack of vigilance on the part of bishops, priests, nuns, and laypeople. We all have a role and a responsibility.
 

LOPEZ: Again, as a historian, how are you viewing this Pope Francis moment?

RYCHLAK: It’s certainly an invigorating time. Most adults can now remember at least three popes, and each of them brought different talents and focus to the job, yet each has been a strong representative of Christ here on earth.

Francis has a touch that resonates with many people. I have talked to lots of people who tell me that they feel drawn closer to the Church because of him. That is wonderful.

Of course, there are some who feel differently. I recently spoke to a close friend who feels that Francis has moved the Church away from him. I pointed out that it is our duty to work towards the vision of Christ’s representative, not his duty to seek out our vision. I think if people seek the pope’s vision — regardless of who holds the title at any given time — they will see further and better.
 

LOPEZ: What are the floodgates that open if the Holy See is seen as connected to torture in some U.N. document?

RYCHLAK: The floodgate to worry about is that the U.N. would be able to assert authority over virtually anything. If we can define opposition to abortion as torture — which the Committee Against Torture has suggested — then that committee’s jurisdiction is unlimited. No longer is it a matter of looking for physical torture; now it becomes a matter of controlling ideology.

Words have meaning. Torture has a legal definition. Permitting a quasi-governmental entity to ignore definitions and expand its jurisdiction to cover ideology means that States are abandoning national sovereignty and risking international tyranny.  
 

LOPEZ: What’s the most important thing for anyone to bear in mind in this news story?

RYCHLAK: Crimes have legal definitions, and even the worst criminals are entitled to due process. Judges (or committee members) should not be permitted to ignore these truths in order to advance their agendas.

Some priests did bad things. Many were punished. Some avoided punishment, and some were not guilty.

The aim always should be to assure a fair process that protects the innocent and convicts the guilty. We do this by having fair laws and set procedures. Judges — or panel members — are not free to change or disregard those standards, even if they honestly believe it is for a good cause. History has proven, time and time again, that when a judicial entity is not constrained by laws, anarchy follows. That is the true debate here.

Rape can be part of torture, but rape does not constitute torture. They are distinct crimes with different elements. Both are serious and both call for heavy sanctions, but that does not make them the same.

— Ronald J. Rychlak is a professor at the University of Mississippi School of law and the author of Hitler, the War, and the Pope.



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