Kiss Me Next, Pope!

Is there anything wrong with a picture of the Pope kissing an imam?

I see that the Vatican, and presumably Pope Benedict, are mighty pissed at this picture.

The Vatican is taking legal action over this Benetton (remember them?) publicity stunt, so I thought I would analyse what legal basis there might be for an action.

Before I go on, I need to cover my arse (I mean legally, not to prevent anything untoward happening to it in the context of a discussion about the sex lives of clergymen):

Disclaimer 1 (of 3): Nothing in this post constitutes legal advice. You shouldn’t act, or fail to act, on the basis of anything you read in this post. (This disclaimer is aimed at you, Pope boy.)

It’s so easy to forget, but when he’s not being God’s representative on Earth the Pope is also a normal homo sapien just like you and me. He does the same things that you and me do. He eats, he sleeps, he pisses, he shits, he covers up child abuse on an institutional and international scale. Ok, that last one was just to check you were paying attention.

Even though the Pope is quite fond of peddling an ancient belief system which, in conjunction with the privileged position he and his institution is afforded, regularly denies other people their basic rights, he still has rights of his own. (You see, Pope, rights are for everyone.)

One of those is the right not to be defamed. Sorry, another bit of arse covering:

Disclaimer 2 (of 3): This discussion is on the basis of the laws of England and Wales. I don’t know whether the Vatican/the Pope are going to indulge in a bit of “forum-shopping” in the same way oligarchs and celebrities do. I’m not even a defamation lawyer so I can only just about hold this post together from an English/Welsh legal perspective. There might be other relevant legal systems to consider, such as Italian law and Canon law. (Did you see the deliberate mistake there? Only one of those is a real legal system. The other one is a pretend legal system. You work it out.)

Here is a simple definition of defamation:

“Something which lowers someone’s reputation in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.”

The first point here is that the person must have a good reputation in the first place. Want to publish something unpleasant about Ian Brady? Fill your boots. You can say pretty much whatever you want, even if it’s untrue, because his reputation is already shit.

Does the Pope have a good reputation? I would say there is a compelling case that he does not. For example, both in his current role and in previous roles in the Catholic Church, he has been responsible for widespread child abuse on an institutional scale, be it as a result of incredible incompetence or downright nastiness. This has included moving abusers from one parish to another and not alerting the relevant authorities.

And then there’s the teachings which he advocates. In the face of overwhelming scientific evidence he says that condoms cause AIDS. Because of his influence and that of the organisation over which he presides, and the special privileges from which they benefit, these insane teachings literally cost lives – of real people.

So before we’ve even discussed whether the picture is defamatory, it’s not even clear whether the Pope’s reputation is intactus.

Now for the picture. Does the image of the Pope indulging in a bit of man-on-man lower his reputation? Well, it depends whose eyes you’re looking through, but our definition above compels us to look through the eyes of “right-thinking members of society”.

One can put forward a perfectly healthy argument that homosexuality is generally (and I would say, rightly) accepted these days, certainly in England and Wales. If we assume that laws more or less reflect the zeitgeist – although there is often considerable time lag – the discrimination legislation protecting the rights of homosexual men and women, and the Civil Partnership Act which effectively gives them the same legal rights as heterosexual couples, together constitute a rather solid level of overall social approval.

But even in the spirit of this post that’s probably over-simplistic. When Jason Donovan sued The Face magazine for saying he was gay, he argued that he had no problem with homosexuality. What he objected to was the idea that he was not being honest.

Maybe that’s something the Pope could run with, but even if you allow yourself some twisted church logic, it takes you to a strange place. The Pope would be arguing:

“I think homosexuality is morally wrong, and I spend a lot of time saying so. Most of you think there’s nothing morally wrong with homosexual acts between consenting adults, and your laws reflect this. How dare you defame me by suggesting I am taking part in an act which, in your eyes, is neither immoral nor illegal.”

Like I say, a strange place.

Forgetting the homosexual nature of the image, the Pope might argue it displays a lack of celibacy, which in turn displays dishonesty on his part. But does a kiss equate to infringement of celibacy? I can’t even see tongues! He’s just kissing on the lips, and I imagine he’s kissed a picture of JC or a crucifix before in much the same way.

Is the Pope likely to be shunned or avoided? Some of his flock (and I do stress ‘some’; I am not saying for a moment that all or even most Catholics are homophobes) may well shun him. But this shunning would be on the basis that he were gay, which might mean the shunners don’t clear our “right-thinking members of society” hurdle.

Also, look carefully: the Pope is appearing to kiss an adult man. That’s someone above the age of legal consent. In the context of the institutional child abuse, you could even argue this image does the Pope’s reputation the world of good.

That’s it as far as the Pope is personally concerned, but I also want to deal briefly with the idea that Catholics generally might have been defamed by this.

In principle it is possible to defame a group of people rather than just an individual. For example:

“The entire current Alpha Delta Group 1 Morris Dancing troupe, who meet at [xyz] Village Hall in [abc] village whenever there is a full moon, all fuck goats. Relentlessly.”

This appears to be a small, well-defined and easily identifiable group of people. Assuming the statement is untrue, I would argue these Morris dancers have a reasonable basis for a defamation claim.

The same logic does not hold for Catholics and the picture of the Pope. There would be huge arguments over how to even define Catholics. Is it anyone who has been baptised in a Catholic Church? What constitutes a lapsed Catholic? What if you haven’t been to church for over twelve years? Can you be a gay Catholic? Can you be a Catholic if you don’t believe in God? Can you be a Catholic and disagree with something (or even everything) the Pope says? What if you just like the songs? What if you just like the Jesus Juice?

I think there’s more than sufficient opaqueness over how you define Catholics – not to mention potential disagreement amongst Catholics themselves as to whether this picture defames them – for this particular legal case to crash and burn.

One last disclaimer:

Disclaimer 3 (of 3): Out of laziness I haven’t researched all the legal issues in much depth, and you may have noticed this post isn’t 100% serious. It’s basically some smoky law school memories with the odd internet search thrown in so that I don’t make a complete tit of myself, but if I’ve got anything wrong it won’t be the first time I’ve spouted complete bollocks (in a personal capacity or a professional one). My objective is merely to show some of the legal issues the Pope might face. I will let others explore these in more detail, like proper adults.

You will see I have not even mentioned the word “offence”, and that’s because there is no legal right not to be offended, either as an individual or as a group. If you want a friend, get a dog (or a god).  Actually, stick to the dog.  If you want a tormentor, get a god.

Finally, shame on those publications that have blurred out the full image. You know who you are.