SOUTH BEND, IN - Notre Dame goes to astonishing lengths in its effort to justify its support of the criminal prosecution of the pro-life ND88.

As we have already reported, our investigation has undermined Father Jenkins’s claim that the University is simply following its established policy respecting trespassers.  Thus, in 2007 the University shelved trespass charges against pro-gay and anti-military demonstrators whom ND police had arrested. When we called this to the University’s attention, the University cut off communications.

Now an investigatory report by the South Bend Tribune has confirmed our findings. Nevertheless, Father Jenkins has repeated the University’s rationale in a statement that was published alongside the Tribune report that undercuts it.

Here is the sum of it:

In his new statement, Father Jenkins again invokes the principle of equal treatment. "The University cannot have one set of rules for causes we oppose," he declares, "and another more lenient set of rules for causes we support." Rather, he says,  "We have one consistent set of rules for demonstrations on campus — no matter the cause."

But the South Bend Tribune report, confirming our investigation with additional sources, shows this is simply not so. Rather, the "investigation...has found there have been variations in how some protesters were handled at the university."

Thus, on two separate occasions in March of 2007, Notre Dame police arrested trespassers from the pro-gay Soulforce and the anti-ROTC Catholic Worker organizations and then, prudently, the University dropped the cases. Evidently it simply did not forward them to the prosecutor. As one of those arrested said: "We never heard another word."  Why, after all, should Notre Dame invite accusations of hounding Catholic Workers or pro-gay activists?

If, then, consistency, not to say prudence, is to govern, Notre Dame should be at least as generous toward pro-life demonstrators, with whose cause, Father Jenkins says, Notre Dame "fully agrees."  It cannot itself end these prosecutions, but it can recommend to the prosecutor that he do so. Defense attorneys think the prosecutor would likely agree, but in any event Notre Dame would have done all it can.

What is especially striking is how the University has closed its eyes to the Sycamore Trust and South Bend Tribune investigations. As we have reported, when we called these prior incidents involving pro-gay and anti-military demonstrators to the University’s attention, its response was: "We have decided to discontinue communications with you on this topic." Now the University restates its rationale in the face of an exhaustive Tribune report again demonstrating its infirmity.

One, then, is left to speculate as to the real reason for the University's position. The event is long past. Peace and order were maintained. No one would think Notre Dame was sanctioning violation of law by showing compassion.

Possibly the University's real motive is suggested by Father Jenkins's assertion that “those who were arrested...were led by individuals who...promis[ed] upheaval on our campus.”  Punishment, that is, may be the driving purpose. But punishment is for the prosecutor and court to consider, not the University, and retribution is a singularly unattractive motive for a Catholic institution.

In any case, this carefully crafted intimation that defendants were agents of “upheaval” is infirm on its face. There is no claim that the ND 88 “promised,” much less caused,  “upheaval” on the campus. Nor could there be. Descriptions of the defendants and the circumstances of their arrests — while kneeling, praying the rosary, quietly walking with posters — put to rest any notion that they were instigators of “upheaval.”

Nor, for that matter, does Father Jenkins claim that any “leader” went beyond media-driven rhetoric. We assume the University has in mind the typical verbal pyrotechnics of Randall Terry of Operation Rescue. While some, but by no means all, of the demonstrators came to Notre Dame because of his press and Internet releases, he is not one of the ND 88 and is not represented by their attorneys.

Several weeks before Commencement Mr.Terry, for the first and last time,  “walked onto the campus just after noon [and] was almost immediately arrested.”   So much for “upheaval.”

Notwithstanding Father Jenkins’s description of the supposed generosity of the prosecutor, these prosecutions are no small matter, as we have explained before, Close to half of the defendants do not qualify for the pre-trial diversion program that Father Jenkins describes. If convicted, they face fines up to $5,000 and imprisonment for up to a year. And even for those who accept pre-trial diversion, there may be substantial costs to pay and, during the year’s probation, serious credit and employment consequences.

No wonder then, as we have pointed out (Update on the ND88 and Notre Dame washes its hands), that the University’s position has drawn widespread condemnation in the pro-life community. Our report respecting the pro-gay and anti-military demonstrators triggered another wave of criticism. The South Bend Tribune investigation will further cripple Notre Dame’s effort to show that it is pro-life notwithstanding its honoring of President Obama.

The question is simply whether Notre Dame should recommend to the prosecutor that he dismiss the charges against these pro-life defendants, leaving it to him to decide what is in the public interest in light of the fact that the landowner, Notre Dame, is content. Given the compassion Notre Dame has shown to pro-gay and anti-war demonstrators in the past, it seems little enough to ask the same of a Catholic university for defenders of life.

“Forgive us our trespasses as we forgive those who trespass against us.”

You can replace the "Guest" name with your own name without establishing an account; share your comment with a Facebook or Twitter page using the "To" drop-down; and receive notifications when someone replies to your comment by selecting "Follow" link.