Vicarious liability
During the past years we have had some confused ideas on whether the Catholic Church in Malta is vicariously liable for any child sex abuse.
To prove their point, some have also referred to the employer-worker clause under Maltese law to submit that the employer is always responsible for his worker’s negligence. They, therefore, argue, that the Church is always responsible for the negligence of its priests.
Article 1037 of the Civil Code states: “Where a person for any work or service whatsoever employs another person who is incompetent, or whom he has not reasonable grounds to consider competent, he shall be liable for any damage which such other person may, through incompetence in the performance of such work or service, cause to others.”
So, the ingredients of this section are: a) knowledge by the employer of incompetence of the employee for a specific work; and b) the incompetence must be previous to the employment.
In the light of this provision of the law, the Catholic Church prepares candidates for the priesthood according to Canon Law and its relevant documents. So every priest is presumed to be capable of carrying out his duties well according to Church rules. This preparation, of course, always precedes any pastoral work carried out by the priest. Besides, the Church always assigns duties to its priests according to their personal capabilities.
Therefore, the two ingredients required by article 1037 of the Civil Code are present in any pastoral work assigned to priests by the Church.
This can lead us to only one conclusion: the Catholic Church is not vicariously liable to any negligence committed by any of its priests.
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Joe Zammit
Jan 9th, 17:21
Roger
Any change in the law will apply ONLY to future cases. My letter is based on our current law.
Remember too, once you said "all over the world": in the whole world there are over 400,000 Catholic priests. Of these, ONLY 0.4% have been ALLEGED, not convicted, to have committed child sex abuse. 99.6% are hardworking, loyal and faithful to Christ & his Catholic Church.
Joe Zammit
Jan 9th, 16:35
Roger
Any change in the law will apply ONLY to future cases. My letter is based on our current law.
Remember too, once you said "all over the world": in the whole world there are over 400,000 Catholic priests. Of these, ONLY 0.4% have been ALLEGED, not convicted, to have committed child sex abuse. 99.6% are hardworking, loyal and faithful to Christ & his Catholic Church.
Roger Vella Bonavita
Jan 9th, 09:31
Joe,
The law is not immutable. All over the world the church is being brought to account precisely over its vicarious liability. Malta will follow suit I am sure. Let us leave it at that and agree to disagree.
Joe Zammit
Jan 7th, 21:08
Roger
At law you have to be specific and clear, otherwise you will lose the case. You said: "I think that is going to change".
What is 'that'? Who is going to change it? What proofs do you have that it is going to change?
Before a judge or a magistrate, facts not thoughts will win you the case.
Roger Vella Bonavita
Jan 7th, 17:26
Joe,
Well I think that is going to change.
Joe Zammit
Jan 7th, 09:52
Roger
Don't come to the false conclusion that if one is found liable to child sex abuse, one has to pay compensation. No. Absolutely no. We have had many, many cases of child sex abuse and NO ONE has paid any compensation. For this crime there is ONLY imprisonment.
Please, bear in mind ONLY Maltese Law.
To date you haven't backed anything you said with our law.
Joe Zammit
Jan 7th, 09:48
Roger
I'm not referring to your spelling of the term but to your spelling of the sense of the term. That's why I told you to read my letter well. In my letter there is an answer to ALL your queries on vicarious liability. For the Church in final analysis what matters is BOTH Canon Law and Maltese Law.
You seem too hard to understand our law.The Church is NOT vicariously liable.
Roger Vella Bonavita
Jan 7th, 03:58
Joe,
There is nothing wrong with my spelling of vicariously liable :) . In the final analysis what matters here is not what canon law provides (that is an internal matter for the church itself) but rather what is determined by the law of the land. If church authorities are found to be vicariously liable by a court of law, then that court will determine whether compensation is payable.
Joe Zammit
Jan 6th, 15:40
Roger
You are spelling vicarious liability wrongly. I have quoted the law while you are just saying what you mistakenly believe about it. Please, read my letter carefully!
On the other hand, when you are saying the Church is subject to the law of the land, you are agreeing with me. I said the Church is subject to Canon Law and Maltese Law.
Roger Vella Bonavita
Jan 6th, 13:15
Joe
I see I have to spell it out for you: I believe that the church authorities are vicariously liable for acts of paedophilia committed by clerics appointed by those authorities. It cannot be otherwise. Like any other organisation the church is subject to the law of the land.
Joe Zammit
Jan 6th, 09:43
Roger
So you have accepted all I have said.
In my letter I have referred only to the Catholic Church in Malta and only to Maltese Law.
Regarding the Catholic Church abroad I am posting hundreds of comments in foreign newspapers, not here. To date no one has contradicted my proofs of what the Catholic Church abroad has done and is still doing to eradicate this horrible crime of paedophilia.
Roger Vella Bonavita
Jan 6th, 01:27
Joe.
Ok so I should have said criminal law. The fact remains that until very recently the church all over the world has refused to accept responsibility for paedophile clerics that it placed in positions of trust and there is evidence that often it shielded these perverts. Compensation is only part of the issue. That should be a matter for the courts to decide - not the church.
Joe Zammit
Jan 5th, 11:47
Roger
You last sentence is misleading you. Defilement of minors deals with Criminal Law.
We have had many, many cases of child sex abuse and to date NO Maltese court has ever awarded compensation to the victims. For the perpetrators there is imprisonment.
And the perpetrators were not priests but married people, parents, friends, single persons who were not priests, etc.
Joe Zammit
Jan 5th, 11:42
Roger
Our criminal law
S.203(3) "No proceedings shall be instituted in respect of any offence under this section except on the complaint of the injured party".This section deals with 'Defilement of minors'.
The Catholic Church is bound by Canon Law & Maltese Law.
Unless the victims lodge a complaint with the police,no criminal action can take place.
The victims have also the right to forgive
Roger Vella Bonavita
Jan 5th, 09:37
Joe,
Are you seriously suggesting that the church, the organistion responsible for appointing clerics to serve in parishes, should not report any of them who are in involved in paedophilia - unless the children themselves complain? That is totally irresponsible and socially unacceptable. Canon law does not come into this; it is a matter of rendering unto Caesar: i.e., to complying with civil law
Joe Zammit
Jan 4th, 20:03
Pippo
We are speaking here of child sex abuse and not of murder. Our criminal law requires police to take criminal action in sexual abuses "on the compliant of the injured party". We are not speaking of murder.
In my previous comment, please substitute 'sex crime' for 'murder'. In case of murder and other offences the police take action ex officio.
Joe Zammit
Jan 4th, 10:26
Roger
The Catholic Church is bound by Canon Law and Maltese Law.
According to our criminal law, it's USELESS lodge a report with the police because only the injured party can do it. If the whole of Malta knows about the crime and the whole of Malta report the crime to the police, the police CAN'T do anything; they cannot proceed with the criminal action.
Pippo de Marco
Jan 4th, 16:29
I don't think you are right about that, Joe.
If you are correct, then who reports a murder ? - You can't expect a corpse to report their own death.
Or maybe Heaven, Hell, KFC or wherever they go has free broadband so they can send an e-mail from the afterlife ?
Joe Zammit
Jan 4th, 17:31
Pippo
The victims themselves report the murder. We have to abide by our criminal law.
Roger Vella Bonavita
Jan 4th, 09:41
There is something very wrong with the procedures for training and assessing clerics for pastoral work if paedophiles slip though the net. There is much wrong when the church does not report cases of possible clerical paedophilia as soon as it gets to know of these and it is unacceptable for the church to move cleris it knows are paedophiles from one parish to another.
Roger Vella Bonavita
Perth
Joe Zammit
Jan 3rd, 17:31
Perhaps we are all forgetting a perpetration in families themselves.
It sometimes occurs that children do sexually abuse each other when their parents are somehow absent. Now, we know that parents love their children and supervise on them almost all the time. But notwithstanding that, there are occasions when children do abuse each other.
Shall we then condemn parents?
Wally Vella-Zarb
Jan 3rd, 20:54
Yes, legally the parents are responsible for the illegal acts of their minor offspring. If a child hurts another child, it is the parents of the first child who foot the bill.
Mr E Phillips
Jan 3rd, 23:51
Plenty about criminal law. But morally? are they cupable?
Chris Gatt
Jan 4th, 01:35
Mr Zammit, you really need to look deep in yourself. It makes me wonder how you think you can justify one horror with another. You should stop digging that hole!
Joe Zammit
Jan 4th, 08:11
Wally
I'm not saying parents are not responsible. What I'm saying is that, notwithstanding all the supervision, perpetrators do find time to commit a crime. In case of minors, parents are responsible; but in case of adults, NOT parents but the adults themselves will be responsible.
Joe Zammit
Jan 4th, 09:35
Chris Gatt
Your sweeping statements without any proof will lead you and us, the readers, nowhere.
Joe Zammit
Jan 4th, 11:40
Mr Phillips,
No, morally, parents are not culpable if they supervise their children well. Also our civil law on tort, negligence is limited, i.e., one must not be expected to be careful in an extraordinary way.
Joe Zammit
Jan 4th, 13:16
Mr Phillips,
No, morally, parents are not culpable if they supervise their children well. Also our civil law on tort, negligence is limited, i.e., one must not be expected to be careful in an extraordinary way.
Chris Gatt
Jan 4th, 16:02
@Joe Zammit. What sweeping statements? I made none. LOL
Francis Saliba M.D.
Jan 3rd, 16:27
The ONLY reason why the undue recompense is being unrightfully demanded from the Church and its loyal members is that the sum that would satisfy the victims and their lawyers is beyond the financial resources of the real culprits.
Joe Zammit
Jan 3rd, 17:18
Francis
My letter deals only with responsibility and liability of the Church. The question of compensation is another matter which I don't want to touch on now. To date our courts have NEVER given any compensation to any victim of child sex abuse. For that there is imprisonment.
Francis Saliba M.D.
Jan 3rd, 20:21
@JoeZammit today 17:18
?
J Martinelli
Jan 3rd, 14:37
There is another aspect that is often ignored in such cases. Despicable acts by some priests rarely start just after their ordination, when the training leading them to be competent to carry on their ordained duties is still fresh, but years afterwards. Supervision is not a remedy because these acts are done in private and the victims are usually threatened so they do not report the abuse.
Joe Zammit
Jan 3rd, 16:01
J. Martinelli,
All persons are deemed innocent unless proven guilty. Thank God, 99.75% of our Maltese Catholic priests are hardworking, loyal and faithful to Christ and his Catholic Church.
Victims grow and if they want to lodge a complaint with the police, they can. In case of children prescription start running when they attain majority; so NO excuse of being threatened!
Francis Saliba M.D.
Jan 3rd, 20:23
@Joe Zammit
Prescription starts to run when the crime becomes known.
Joe Zammit
Jan 4th, 08:17
Francis
In case of minors, prescription starts running when minors attain majority, ie 18. The victims will ALWAYS know about the crime committed on them. So, once the victims know about it, the crime is not considered hidden at law.
Francis Saliba M.D.
Jan 4th, 10:56
@Joe Zammit
Evidently. I meant when the crime comes to the notice of the police, not when the the culprit learns about what he himself did. I attribute sense to readers of my comment.
Joe Zammit
Jan 4th, 11:57
Francis
Prescription starts running from the time of its perpetration not when the police get to know about it.
Joe Zammit
Jan 4th, 13:15
Francis
Prescription starts running from the time of its perpetration not when the police get to know about it.
Francis Saliba M.D.
Jan 5th, 11:52
@ Joe Zammit
If a crime is carried out, unknown to the authorities at the time, but comes to their notice later, that is the time when prescription begins to run and the period of prescription can be interrupted if decisive new evidence surfaces unavoidably late in the day.
Raphael Vassallo
Jan 3rd, 14:25
And yet Fr Godwin Scerri (now in prison for sex offences) had been appointed spiritual director of an orphanage in Malta AFTER Interpol had issued an arrest warrant on child abuse related charges: charges the Church was aware of at the time of his appointment. So much for Mr Zammit's observation that: "the Church always assigns duties to its priests according to their personal capabilities..
Joe Zammit
Jan 3rd, 16:07
Raphael,
What you are saying makes no legal sense: interpol is interpol precisely because it can effect the arrest if it issues a warrant of arrest. Since it didn't arrest him means that either there was no warrant of arrest against him or this warrant was withdrawn. In the judgment against Godwin Scerri NO reference to interpol is made by the criminal court!
GL Calleja
Jan 3rd, 14:11
Mr Zammit I don't know why you keep putting your foot in your mouth. The church became responsible from the time they started covering up the affair and spending thousands of euros for the defense of the 3 pedophile priests. If the church was not responsible why did they take the trouble to cover up the irresponsible act for almost ten years? There are no confusing ideas.
Joe Zammit
Jan 3rd, 16:12
GL Calleja
What you are saying is just hearsay. Mention the name of one priest or person who covered up any of these crimes! Where are the victims of these crimes? Why did they not lodge a complaint with the police for these crimes?
These victims belie you!
The Church did not cover up anything. The Church is obliged to take the necessary steps ACCORDING to Canon Law.
D Muscat
Jan 3rd, 13:34
The church should not be liable for any acts committed by its priests. However, once it started colluding with the priests to hid their crimes it became an accomplice and liable. There is enough evidence that the church crossed this line many times. In one a priest the Curia knew was wanted in Canada was sent to work in a school in Malta even though it was known that he was wanted for sex abuse
Joe Zammit
Jan 3rd, 16:20
D Muscat
What you are saying about hiding is just hearsay. There is ABSOLUTELY no complicity on the part of the Church. The Church has Canon Law and she must follow it.
You said: "there is much evidence ...". I challenge you: prove this evidence. Give the name of the priest of whom you are speaking.
If this priest was wanted in Canada, Canadian police know what to do to get him.
Peter Murray
Jan 3rd, 13:25
Dear Mr Zammit,
It has long been established and determined that the only acceptable definition of a competent person -and this is enshrined in legislation -is for the person undertaking the task to be appropriately certified.Moreover, that such a certficate of competence is issued by an accredited industry agency or authority-and that such certification be refreshed by periodic re-examination
Joe Zammit
Jan 3rd, 16:26
Peter
Yes, you are right.
Regular supervision is always needed as well. In Malta I doubt if any re-examination is the practice. Take driving, e.g.
If we look at our case law on vicarious liability, our Courts held that the proof of the pudding is in its eating. One shows then if one is competent by what one does.
Peter Murray
Jan 3rd, 12:43
FAO JOE ZAMMIT Your defintion still does not irrefutably establish who is responsible for determining competence-especially when undertaking a job for the1st time.Who establishes that"professionals and supervisors"are competent?As a QHSE manager for over 32 years we had to reach an identifiable benchmark(for legal purposes) in how a competent person is defined-it is accredited certification only!
Joe Zammit
Jan 3rd, 16:30
Peter
No one can give an all-inclusive perennial definition of 'competence'. We try to reach the ideal as much as possible. At law, we have no definition of competence. In no judgment do we find a definition of competence. Here I am looking at 'competence' from the legal point of view.
Joe Zammit
Jan 3rd, 11:45
Competence is decided upon by a number of factors: good preparation for a particular job, age and experience are just a few. Competence is not necessarily a lasting one: one can start being competent and end up being incompetent. Professional and reasonable supervision can help in ascertaining the competence of an employee. The tree is recognized by its fruit.
Victor Zammit
Jan 3rd, 13:01
Your letter if founded on a wrong premise: much as it contains universal (catholic?) norms, the Civil Code does not apply to the Catholic Church. What follows does not follow.
Joe Zammit
Jan 3rd, 16:43
Victor
Church authorities are human persons living in Malta and as such they are under Canon Law and Maltese Law. Their behaviour can be challenged in our criminal and civil courts.
So my letter is built on a sound premise from a legal point of view, arriving at a sound legal conclusion.
Victor Zammit
Jan 4th, 11:57
Let’s put it simpler: Canon Law, not the Civil Code, regulates the Catholic Church. Canon law does not refer to vicariousness (Canon 1735). Article 1037 of the Civil Code applies if the Church is plaintiff or defendant in a court (not the Church’s). Vicariousness is in the Criminal Code: atonement for another, meaning that the priest need not be known for finding liability against his bishop.
Chris Gatt
Jan 3rd, 11:06
Joe Zammit should really stop digging holes for him and his church. If the church was not responsible there would be no need for them to apologise. But then again lip service is cheap. The church had a duty to ensure that there were enough checks and balances in place. Particularly as it was very much aware of similar cases taking place abroad.
Joe Zammit
Jan 3rd, 12:41
The Church apologized without being guilty. She did it out of love. She apologized on behalf of the now convicted ex-priests. But this does in no way put any guilt on the Church. 99.75% of Maltese Catholic priests are hardworking, loyal and faithful to Christ and his One, Holy, Catholic and Apostolic Church.
The Church ENSURED to have ALL necessary checks & balances in place.
Pippo de Marco
Jan 3rd, 15:08
@ Joe Zammit.
You might be right about the hard-working priests, but you may equally be wrong. How can you know ?
Did you know that the now ex-priests were abusers ? Of course not. In which case your claims are nothing more than hopeful supposition.
If the Church has now ENSURED there will not be any more, then it will be AUTOMATICALLY guilty if there is. So let's wait and see.
GL Calleja
Jan 3rd, 15:30
Mr Zammit we have to agree with you that 99.75% of Maltese Catholic priests are hardworking and honest but there is that .25% that still make part of the priesthood that are not faithful and loyal to Christ.
Joe Zammit
Jan 3rd, 16:49
Pippo
ALL persons, including you and me, are to be considered INNOCENT unless proven guilty. What I am saying applies to present facts.
Your 'if' is, to date, imaginary. Let's be real and say: to date we have 2 perpetrators = 0.25% of Maltese Catholic priests. So 99.75% of Maltese Catholic priests are hardworking, loyal and faithful to Christ and the Catholic Church
Joe Zammit
Jan 3rd, 16:53
GL Calleja
Of course we are sad about those 0.25%.
But here I would like to say something: those 0.25% can repent, make penance, pray, and draw nearer to God, ending up in heaven. And anyone of the victims that does not FORGIVE will end up in hell.
Peter Murray
Jan 3rd, 10:53
Could anyone,define"competent"or "competence"in the terms of an employee's capabilities engaged to carry out any type of employment and who determines and establishes such terminology-especially significant when the person has never before undertaken such work?Moreover, is the fact that a person does a job automatically make them competent?Are drivers competent simply because they have a licence?
Joe Zammit
Jan 3rd, 11:37
Competence is decided upon by a number of factors: good preparation for a particular job, age and experience are just a few. Competence is not necessary a lasting one: one can start being competent and end up being incompetent. Professional and reasonable supervision can help in ascertaining the competence of an employee. The tree is recognized by its fruit.
Chris Gatt
Jan 3rd, 12:42
Professional and reasonable supervision can help in ascertaining the competence of an employee. So where was this professional supervision when it was needed? Dig, dig, dig.
Chris Gatt
Jan 3rd, 12:43
The truth of the matter is that whenever the church had found similar problems it had merely pushed the issue sideways by giving the person concerned a new posting. Hardly the best way to solve the issue, it betrayed the trust of both victim and perpetrator, a trust it was duty bound to uphold.
Pippo de Marco
Jan 3rd, 12:44
@ Joe Zammitl.
The Church was clearly negligent in not providing adequate supervision of its priests in order to ensure their continuing competence. You have, therefore, on this one point alone completely undone your own argument.
Joe Zammit
Jan 3rd, 16:58
Chris Gatt
Do you think that any perpetrator will commit a crime during supervision? Why don't you ask the REAL question: where were the victims at that time? Where were the victims when they attained majority? Where were the victims when they were completely on their own?
The Catholic Church was, is and will remain trustworthy.
Joe Zammit
Jan 3rd, 17:04
Pippo
The Church has always provided MORE than adequate supervision in these matters. And She still does that in all her institutions. She is bound by Canon Law and Maltese Law as well.
But do you think any perpetrator is going to abuse during supervision?
The question we should ask is NOT about the Church but about the victims themselves: where were the victims after attaining majority?
Pippo de Marco
Jan 3rd, 22:02
Joe.
Victims were, are and always will be victims. The crimes committed by the ABUSERS are not statute barred.
Seeking to deflect attention from the sinner to the sinned against will not erase the crime nor the memory.
Joe Zammit
Jan 4th, 09:52
Pippo
Our criminal law speaks of prescription. The victim can take an action ONLY within the time of prescription. When prescription is over, the crime, at law, will not even be considered. So much so that the police are OBLIGED to take prescription so serious that not even the perpetrator can waive it because prescription is a matter of public policy, so it is an 'ex officio' plea.
Pippo de Marco
Jan 4th, 11:27
Joe.
What is the Statute of limitations on Child abuse, Child molestation and Child rape ?
And if such crimes are committed upon young minors who, for reasons of shame, or whatever, do not report them until they achieve their majority, then when does the period of prescription begin and end ?
Please choose the reason of your report below: