Submission to the Royal Commission Re "Towards Healing"

Broken Rites
November 8, 2013

http://brokenrites.org.au/drupal/node/264

Examining the "Towards Healing" process:

a submission to Australia's national Royal Commission in 2013,

prepared by WAYNE CHAMLEY, of Broken Rites Australia (updated 8 November 2013)

The Broken Rites executive team has gained first-hand experience and insights into the “response” processes that are followed by the various church and religious organisations. In regards to the Catholic Church’s process “Towards Healing”, our executive team has worked directly with many individual victims over the years. These victims have sought to have their claims heard by the Catholic Church and some have been less than satisfied by their experience of the process and the behaviour of church representatives.

We have also been contacted by many other victims who chose not to seek any advice or support at an early stage. Instead, these people made contact with us after they had gone to “Towards Healing”.

Towards Healing – principles, provisions and procedures

Since 1996, in Australia, a person who experienced sexual or extreme physical abuse while in a catholic-run institution, school, parish etc, has been able to seek to have a complaint considered by entering the church’s process or by resorting to civil litigation. In 1996 the Catholic bishops and the Heads of Religious Orders in Australia released the document “Towards Healing” and since that time many complaints have been brought to the attention of church officials, by persons entering this internal process, in good faith.

Our understanding of the document “Towards Healing” is that it provides the details of a process through which the Catholic Church will receive a compliant, that might be made by any person about abuse experienced by that person at the hands of any member of the church who has either been ordained or has professed religious vows. Receipt of a complaint activates a pastoral response process and the person will first be contacted by someone from the respective, state-based Professional Standards Office (PSO). The person will be asked to meet privately with an appointed person who will prepare an Assessment Report. The complainant will receive a copy of the Assessment Report and a copy will be sent to the appropriate Bishop or Head of Religious Order. This person will act upon the Report, in his/her role as the Religious Authority, by first discussing the matters and details of the Assessment Report with the priest or religious who is the subject of the Report if that person is alive and remains a priest or religious.

The Religious Authority then has to indicate how the complainant will be responded to. Where the Religious Authority comes to a view that there is a case to be answered, in a majority of cases the complainant is informed that the Religious Authority is willing to go to mediation. Before the parties get to mediation there can be further contact between the Professional Standards Office and the complainant. A complainant may be asked to present for an assessment by an appointed psychologist or psychiatrist and at mediation, either of the parties may have legal representation even though the whole process is supposed to be non-litigious. At mediation, the Religious Authority may be present or may be represented by his/her delegate. At many mediations, while church people did introduce themselves, individuals rarely explained why they were present and in what capacity. During mediation the claimant will usually be asked if he/she would like to receive a written apology and in many cases the claimant can be advised that the Religious Authority is willing to meet with the claimant.

In cases where the claimant is not satisfied either with the financial offer that is being made by the Church Authority or with the overall outcome of mediation, there is provision for a “review of process” by the National Office for Professional Standards”. It should be noted that the author of this submission has acted as an advocate for many victims. It became clear to him that when a review was conducted, the national office appeared to have no powers to require an individual Religious Authority to comply with the church’s own process.

In cases where a financial settlement is sought and then offered, the religious authority makes no admission of liability and the money is described as a “pastoral offering” and not compensation.

Recently a fairly comprehensive and historical outline about the genesis of this process was provided as a submission, to the Families and Community Development Committee of the Parliament of Victoria (FACDC), in the course of its “Inquiry into the handling of Child Abuse by religious and other organisations”.

Issues arising from people’s experience of Towards Healing

Broken Rites wishes inform the Royal Commission about a number of issues that have become apparent to us. Some are the result of direct experience and involvement as advocates while others reflect the experiences of individuals and groups of victims. We believe that these issues can be categorised. We admit that our categories are not exhaustive and the Royal Commission will no doubt be made aware of other issues that fall outside of the categories chosen by the author.

Implementation issues

A national, universal response process……well almost!

At the time of its release, “Towards Healing” described in detail a process that was going to be followed across the country. Contrary to the public pronouncement that all Bishops and Heads of Religious Orders would follow “Towards Healing”, neither the Archdiocese of Melbourne nor the Order of the Society of Jesus ( the Jesuits) were party to the process. Eventually the intransigence and callousness of the past leadership of the Jesuits was exposed by both print and electronic media and the Order did agree to use this response process.

I want my own process.

The Archbishop of Melbourne at the time (George Pell) had decided to set up his own response process and this became known as the Melbourne Response. This process has become the subject of widespread criticism by victims, Victoria Police, civil rights experts and members of the legal profession in Victoria. It is expected that the Families and Community Development Committee may make recommendations about the future of this process when it releases its report.

Bishops are different.

The bishops also failed to mention that Towards Healing had no standing if a situation arose where allegations of abuse were made against a church person who later becomes a bishop. This fact became evident after a former altar boy alleged in 2002 that he had been abused in 1961 by a trainee priest who eventually became an archbishop. This case had to be responded to by the church’s National Committee for Professional Standards, instead of by "Towards Healing". This deficiency is now recognised in the current version of the “Towards Healing” document.

A power imbalance.

Let’s king-hit the victim and proceed from there.

At mediation, personal information has been introduced into the discussion that bore no relationship to the sexual abuse matter at hand - a person having a history of bankruptcy, a person being unpopular with other pupils at a school, a woman having had multiple partners, a woman being a divorcee.

One claimant, (who happened to be a solicitor) was even accused by the mediator, of having altered the date on a sworn affidavit! The claimant challenged the matter by producing a certified document that refuted the accusation and the mediator backed off. The person representing the “Church Authority” said nothing during this whole farce and the mediator never apologised to the claimant.

“Those church people, they just don’t get it.”

We have received feedback from victims about their individual reactions to the Towards Healing process. A common story is that victims continue to be so traumatised by their experience of child sexual abuse, that they cannot make contact with or participate in a church-run process.

This means that they only have the option of civil litigation. Victims say they are deterred by the presence of priests and religious who serve on the National Committee for Professional Standards and the state-based Professional Standards Resource Groups and in some situations, by the church personnel who are used by these Resource Groups. Victims often report that they left the meeting feeling re-abused.

The author of this submission had experiences where, at mediation, the Religious Authority arrived wearing the full religious outfit. The wearing of roman collars, veils, religious habits and crosses can be intentional and used as a way to signal superiority over the victims.

Lack of transparency

Transparency - what’s that?

There have been cases in Melbourne where conciliation has occurred and an offer of financial compensation has been made, without a single piece of paper ever passing between the parties. Thus there are no records of anything ever having occurred or being responded to. In one case, the complete process was conducted (over three years) without a single document or piece of paper being given to the victim. Everything was handled through phone calls to the advocate.

How to grow mushrooms ...

When a solicitor is present with church representatives, there is lack of clarity as to whether the solicitor is taking instruction from the Church Authority, the church people present on the day or some other party eg Catholic Church Insurance Ltd.

Gender equity issues

A number of female victims have been treated very poorly at mediation. Mediation has been conducted with church representatives making it known that they held copies of the Assessor’s Report. Such reports can contain very personal details about the women and her past “involvement” with an alleged offender. The woman has been alone with a male advocate sitting beside her and 4-5 males representing the Catholic Church, seated on the other side of the table.

In several mediations where the victim was female, the process has failed to comply with Australian guidelines covering discrimination and equal opportunity provisions. Indeed, church personnel fail to be pro-active about these matters. Broken Rites took this matter up with the National Professional Standards Office by requesting that victims always be offered the names of three possible mediators with at least one of these being female. Whilst this was agreed by the national office, a suitable arrangement was never embedded into the Towards Healing protocol. Subsequent mediations occurred where a church-appointed mediator simply turned up and in other cases, women claimants were not informed by the Professional Standards Office that a woman could request to have a female mediator.

Non-compliance with national laws

A major and ongoing issue for Broken Rites over the years was the church’s commissioning of and use of psychiatric and psychological reports. Presumably these were prepared at the request of the church authority and they were not made available to the victim as a matter of routine. This is despite the fact that the report can contain highly personal information about the victim. In some cases, even though Broken Rites (acting on behalf of the victim) requested a copy in the time leading up to the day of mediation, the advocate from Broken Rites was given a copy of the report about twenty minutes before the mediation was commenced.

In correspondence, Broken Rites raised this issue with the National Office for Professional Standards on at least two occasions. In this correspondence we pointed out that under national law a professionally prepared medical report about a person is the property of that person.

This being the fact of the matter, Broken Rites considers that the Catholic Church is not acting lawfully when a Church Authority withholds a report of this kind. Copies of correspondence between Broken Rites and the National office for professional standards is shown as Documents 3 and 4. Document 4, informed us that the question of “ownership of and access to psychiatric/psychological reports” was under review, Broken Rites was never informed about the outcome of that review and the withholding of reports continued.

Abuse of process

Power corrupts and absolute power corrupts absolutely.

Although Towards Healing is described as a “pastoral response process” some church authorities have chosen to approach it as a legal process. No information is disclosed about the accused person. Instead, at mediation, private matters about the victim, which have no relevance to the victim’s complaint, can be presented! We see this as a deliberate tactic that is used by lawyers representing the church authority, to undermine the victim.

Some Bishops and Heads of Religious Orders have refused to comply with the detail of the Towards healing process and claimants have been coerced and intimidated by aggressive lawyers representing the Church Authority. The author attended mediation (four hours) during which the Religious Authority never uttered a single word and the case was never resolved to the satisfaction of the claimant!

In case after case, victims were required to sign confidentiality agreements until this was exposed on the TV program “60 Minutes”. Church authorities then gave the ridiculous public explanation that there had been a failure in communication between them and their lawyers! While a silence clause is no longer included in the Church’s Deed of Release, victims still feel that they are required to remain silent.

People engaged in the process and the conduct of investigations

Broken Rites believes that these matters should be the subject of vigorous inquiry. The basis upon which the Catholic Church engages persons to carry out various bits and pieces of the Towards Healing process remains unfathomable to us. In the different states, an office is established as the Professional Standards Office. Despite the title, each appears to consist of a salaried person (and an answering machine) who has the capacity to call upon additional people as required. People can be called in to act in roles as facilitators, assessors. Sometimes these are members of religious orders and sometimes lay persons. One common feature has been the fact that they were all associated with the Catholic Church in some way whilst another was the number of lay persons who had in the past been in various police forces.

We have become aware of the process sometimes taking the form of a quasi or actual investigation involving the engagement (presumably by either the Professional Standards Office or the Church Authority) of commercial, private investigators. In Queensland, the media reported on the case of the Professional Standards Office in that state using the services of a private investigator who had formerly been a senior police officer who had recently taken “early retirement”. It was revealed that the investigator was not registered to carry out such work.

We have also been very concerned about the inability of church personnel to understand and to recognise situations where there is a conflict of interest. This matter is considered further in the section dealing with Towards Healing and insurers.

In addition, cases have been conducted where the appointed Assessor was a member of the same religious community as the alleged offender. There have been cases where the same lay person has operated in several roles – as a facilitator, then the independent mediator and then as a possible psychological counsellor at the conclusion of mediation. Presumably all of these services were being paid for by the Church Authority.

Links between Towards Healing and Insurers.

We have come to the conclusion that for many victims who enter mediation in good faith, the outcome is pre-determined because of private agreements that have been entered into by the Bishops and Heads of Religious Orders and their insurer Catholic Church Insurance Ltd (CCI). We believe that the activities of CCI need to be examined in details as well as the links between this company, the Towards Healing process and the church’s Encompass Program, a CCI-funded treatment program for offenders. Arrangements here appear to be riddled with conflicts of interest, with church authorities serving on management/advisory committees, the NCPS and the board of CCI. For a time the nun in charge of the National Office for Professional Standards was also a Director of the insurance company!

There is a list of matters that need to be explained including:

The early involvement of Catholic Church Insurance Limited in the development of Towards Healing.

Payments of fees to advisors and directors.

Conflicts of interest.

Information and data about risk being given to or withheld from secondary underwriters to CCI.

Whether all obligations of company directors were always fulfilled.

Whether all reporting obligations to the Prudential Regulatory Authority were met.

The validity of annual audit reports about CCI.

Whether any senior advisor, senior employee or director involved with any one of the three bodies/programs mentioned, ever contacted police in any jurisdiction.

We have come to look upon Towards Healing not as a pastoral response process, but instead a skillfully operated “shop window” process. Against the backdrop of Statute of Limitations effects and the protection afforded by the Roman Catholic Church Communities’ Lands (Amendment) Act 1986, it has operated to minimise financial payouts by church authorities and CCI and its successful operation has been used by the church to dampen down possible concerns by other insurers/underwriters about their exposure to significant and accumulating risk.

The church has been able to avoid having to meet the real needs of persons whose lives have been blighted by their childhood experiences, because taxpayer-funded programs have been available to provide for housing, health needs etc.

The most constant complaints reported to Broken Rites by victims are:

Lack of transparency.

Victims are not told the contact person’s qualifications or background.

Victims being “grilled” by assessors.

Suspicion of what has been reported back to church authorities.

Victims being left with a feeling that the church authorities have been evasive and defensive.

The lack of professionalism at the mediation meeting.

Victims being given no information about how a financial offer has been determined by the Church Authority. Understandably they look upon Towards Healing as a process that is exploited to minimize the payment that is offered and they see the process as a lottery.

- Submission prepared by Wayne Chamley