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Increasingly shocking revelations about sexual abuse by members of Catholic religious congregations and diocesan priests have recently raised the question of whether such widespread abuses constitute crimes against humanity. This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent 10 years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission’s findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality of behind excessive physical violence with the recklessness of allowing known pedophiles access to children highlights an important definitional requirement of crimes against humanity, that such not only be widespread and systematic – which both clearly are – but that such be in the context of an attack directed against a civilian population. While the systematic use of excessive corporal punishment to control children committed to industrial schools constitutes an attack upon them, the systematic cover-up of sexual abuse to prevent public scandal thereby causing widespread sexual abuse raises the question of whether an ‘attack’ on a civilian population can be the result of criminal recklessness. The atypical characteristics of the perpetrator, victim and non-conflict context of these crimes also contributes to the debate on two unresolved issues in international law. First, the role of a “state policy” underlying an attack and whether the existence of one is a definitional requirement or simply an evidential consideration. Second, whether a culpable omission forming the basis of international criminal responsibility can be based on non-criminal legal duties.


Publication Information: 11 Chicago Journal of International Law 439 (2011)

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