Victoria's Path to Child Sex Abuse Prosecution

By Ray Cassin
The Eureka Street
November 13, 2013

http://www.eurekastreet.com.au/article.aspx?aeid=38505#.UoOX7eL0CCp


Will the recommendations of Victoria's parliamentary inquiry into the sexual abuse of children in non-government institutions be overshadowed by the proceedings of the Royal Commission that is now under way? Probably, but it doesn't matter. The first thing to be said about the Victorian inquiry, which tabled its report, Betrayal of Trust, in the state's parliament today (13 November 2013), is that the MPs have done a far better job than many people — including this writer — had expected them to do in the relatively short time allotted to them, and without the resources available to the commission.

The inquiry's recommendations are, with one important exception, carefully considered responses to the evidence the bipartisan committee received from 405 written submissions and in more than 160 hearings. Apart from the exception, of which more later, the Napthine Government should implement these recommendations and, if they are later subsumed under all-state legislation recommended by the Royal Commission, that will not render them pointless. They will have been a model and a guide in dealing with a problem that all forms of institutionalised authority — not only the churches — have preferred to avoid dealing with openly for far too long.

That is not to say, of course, that the sexual abuse of children has ever been condoned, let alone treated as less than a serious offence under criminal law. As the inquiry's report notes, buggery of children under 14 and rape were capital crimes until 1949. But that official abhorrence makes all the more lamentable the fact that until the early 1990s abuse happened extensively in non-government institutions, especially the churches, and that perpetrators were typically redeployed rather than being suspended from their duties and the police notified.

And the biggest adherents to this practice of routine concealment were Catholic bishops and major superiors, just as Catholic priests and religious were proportionately far more numerous among the ranks of perpetrators than were those who worked in other non-government institutions. The figure has been cited before but is worth repeating: Patrick Parkinson, professor of law at the University of Sydney and formerly a consultant to Towards Healing, the Church's national pastoral response to victims of clerical sexual abuse, estimated in his evidence to the inquiry that Catholic clerics and religious outnumbered other institutional perpetrators by six to one.

If the Catholic Church is so frequently mentioned in Betrayal of Trust, therefore, Catholics and their clerical leaders can hardly complain. It simply reflects the evidence: among the churches scrutinised by the committee, only the Salvation Army has an even remotely comparable record of abuse in its institutions. Nor is it sufficient response to say that this is because the Church is so heavily committed to schools and to the provision of welfare services for families and children, becoming thereby a magnet to potential abusers.

The crucial question is why these institutions fostered a culture of secrecy with regard to abuse, and in asking that question and essaying an answer to it the Victorian inquiry is surely a harbinger of the Royal Commission. Expect to hear much more about the relationship between clerical power and secrecy, and about the role of celibacy, on which topic Betrayal of Trust offers observations that, though tentative and exploratory, are neither crass nor naïve. Abuse is not deemed to be a product of sexual frustration, but the report does ask whether there is a link between celibacy and the pervasive clericalism of the Catholic Church.

So what about the inquiry's recommendations? The most important of them makes for easier prosecution of those who fail to report a serious indictable offence involving the abuse of a child. Under section 326 of Victoria's Crimes Act, it must be proved that a person who conceals a serious indictable offence received a benefit, and the committee recommends that this 'element of 'gain' should be removed'.

This is paired with a recommendation that a new offence of child endangerment be created, where 'a person gives responsibility to another for the care of children and is aware there is a risk of harm to those children and who fails to take reasonable steps to protect them from that risk'. There will no doubt be lawyerly argument about what being 'aware there is a risk of harm' means and how failing 'to take reasonable steps' should be defined, but both these recommendations should be implemented. The core of the sexual-abuse crisis has been the failures of those in authority, and the state should make it as difficult as possible for such failures to be repeated.

As Betrayal of Trust notes: 'No representative of the Catholic Church directly reported the criminal conduct of its members to police. The committee found that there is simply no justification for this position.'

Other recommendations that would make it easier for abuse victims to obtain legal redress should also be implemented: excluding child abuse from the statute of limitations; requiring NGOs in receipt of public funds or tax exemptions to be incorporated and adequately insured; and holding these organisations to be vicariously liable for acts committed by 'agents, representatives or volunteers' deemed to be their employees.

And, although the Church has offered the pastoral processes of Towards Healing and the Melbourne Response as alternatives to the civil justice system, it must be accepted that many victims will doubt whether an internal ecclesiastical process can ever be genuinely independent. The committee is right, therefore, to recommend that the powers of the Victims of Crime Assistance Tribunal should be broadened so that those who for practical, including financial, reasons cannot seek redress in the courts can be assured of independent resolution of claims.

More dubious than any of the foregoing, however, is the committee's recommendation that another new offence of 'grooming' be created, which would not require a substantive offence of sexual abuse to have been committed. There is no doubt that the grooming of intended victims, especially with the new opportunities for abusers that have arisen in the age of the internet, is an insidious activity. But it amounts to the cultivation of friendship with an intended victim, and often with the victim's family, too.

What makes this a process of grooming other than the committing of a substantive offence? And how easily could it be distinguished from acceptable conduct by teachers, clergy and youth workers? In some cases the danger signals would be real and apparent early, but in others well-intentioned behaviour might easily be misunderstood. The committee's desire to find a legislative remedy for grooming is understandable, but it is difficult to see how such a law could be drafted without running too great a risk of prosecuting the innocent with the guilty.