The Catholic Church's Submission on " Towards Healing" OR: No Lawyers Please, except OURS!

Lewisblayse.net
December 3, 2013

http://lewisblayse.net/2013/12/02/the-catholic-churchs-submission-on-towards-healing-or-no-lawyers-please-except-ours/



The Catholic Church’s grandiosely-named Truth, Justice and Healing Council (otherwise known as the PR Unit set up by the church to deal with the fall-out from the Royal Commission) has made a submission on the subject of the fourth hearing of the Commission, concerning the “Towards Healing” process.

[Correction: A factual error in the last posting has been pointed out to me. I referred to the “Towards Healing” and “Melbourne Response” as being both the brain-child of Cardinal George Pell. Pell was responsible for the “Melbourne Response”, allegedly following intense pressure from the then Victorian State Premier, Jeff Kennett. The “Towards Healing” program came from the peak Bishops’ body, later. To use my own terminology, I made an “inadvertent misrepresentation” – that is, I stuffed up on my research. All I can do is to apologize for the error and promise to lift my game in the future.]

The above-mentioned Council claims to speak for all sectors of the Catholic Church, in matters relating to the Royal Commission. It says that almost all sectors now use the “Towards Healing” process to deal with allegations of abuse in the church. The Jesuits held out until 2004 before joining the system. The Melbourne Archdiocese, formerly headed by George Pell and now headed by Denis Hart (see previous posting), is now the only one holding out. It still prefers to use its original “Melbourne Response” process.

The “Melbourne Response” process has been severely criticized at the recent Victorian State Parliamentary enquiry, and elsewhere. It seems that the Royal Commission, which has access to all of the data from the Victorian enquiry, will now concentrate on the “Towards Healing” process at its hearings beginning in Sydney on 9th December. The two processes are fairly similar, but there are very real differences which cannot be detailed here, at this stage. A future posting will hopefully be able to achieve this difficult task of showing the differences, and their implications.

So, back to the submission.

The Council states that the “Towards Healing [protocol] provides a way for each victim to seek a pathway to healing for the harm done to him or her, without having to negotiate the challenges of a court system which is based on adversarial positioning rather than mutual and respectful listening and engagement.” That is, the Catholic Church employs a “restorative justice” process, which it claims “can lead to outcomes which are in many ways superior to those provided in the criminal or civil legal systems of justice.” The process relies heavily on Canon Law, the artificial internal legal code of the Catholic Church, which has no legitimacy in the real legal system.

The Council, in several places in its submission, states that “Towards Healing is not, and was never intended to be, a scheme for providing “compensation” to victims. Rather, its principal aim was and is to provide pastoral care. In most cases, however, a contribution of some financial assistance, as a form of reparation, is made…. The reparation aspect of Towards Healing aims to assist the victim and is not intended to be equated to the compensation which might be awarded by a court in civil proceedings for damages.”

This distinction between “reparation” and “compensation” allows the church to give significantly lower sums than a court is likely to award. It also allows for large variations between the quanta for victims experiencing similar levels of abuse. These are two serious criticisms of the “Towards Healing” process which the submission claims to be able to refute.

The church uses its own scale to determine “reparation”, which it claims is tailored to the individual. The submission sates that “many victims of what could be described objectively as at the minor end of the scale of abuse, suffer profound emotional damage while others, with horrendous stories of sexual abuse, have developed remarkable survival skills.” This is, in itself, a crazy claim to make without any attempt at substantiation of the claim. The church says it is the relative impact on the individual rather than the seriousness of the offence, which guides their payment system, and it is the final arbiter of the degree of that impact. It is no wonder it uses all means to avoid civil litigation.

The submission frequently launches into an attack on victims’ lawyers. It quotes a source as saying, regarding civil suits that “the conclusion of these suits often left people feeling, at best, under-whelmed, at worst, used or duped by lawyers in the quest for money,” and notes that “The growth of plaintiff lawyer practices, and the increasing number of victims who are represented by lawyers, has had a noticeable effect on the ‘Towards Healing’ process…. The involvement of lawyers was relatively uncommon when ‘Towards Healing’ was first introduced, but is now much more prevalent.”

The submission later states that: “Some lawyers seem not to appreciate or value the critical importance of the pastoral aspect of the process. This can affect the victim’s willingness to engage with the Church in any way beyond seeking ‘compensation’. Sometimes the facilitation process, where it involves lawyers, can amount to little more than negotiations between the lawyer for the victim and the lawyer for the Church Authority (or the insurer if the claim is insured) or both.”

Clearly, the church would prefer not to have lawyers for the victims involved in its process. It states that “Towards Healing was never intended to be legalistic. However, lawyers are now routinely involved in Towards Healing, both on the part of the victim and (as a result) on the part of the Church Authority. The extent of this involvement varies, although it is likely to be significant where a victim is represented by a plaintiff litigation firm.”

Since the “Ellis Defence” case (see previous posting), the legal advantage lies firmly with the Catholic Church. This advantage is openly stated in the submission, with what a cynic may regard as with relish. It blandly states that “Some victims have the option of taking civil action. In fact, however, relatively few victims pursue court action to finality.” And, here’s why.

The Council notes that “Contrary to what is often supposed or assumed, there is no single or discrete entity which is ‘the Catholic Church’, either in Australia or worldwide…. Under Australian law, archdioceses, dioceses and religious institutes (and indeed churches themselves) are generally treated as voluntary unincorporated associations. As such they are not legal entities under the civil law, nor can they have a representative who can be sued in a representative capacity.” This is essential to the “Ellis Defence”, which many people would like to see changed by law.

The submission restates that: “Such a voluntary or unincorporated association, not being a legal entity, cannot own property under civil law,” but the Catholic Church obviously does have such property. The submission explains this, and why victims’ lawyers can’t get their greedy hands on it by saying that: “However, legislation in the various States and Territories creates statutory bodies corporate to act as trustees of Church land: see for example in New South Wales, the Roman Catholic Church Trust Property Act 1936, and in Victoria, the Roman Catholic Trusts Act 1907.These statutory bodies exist for the specific purpose of holding property and dealing with it on behalf of the Church. They have no part to play in the appointment or supervision of bishops or priests. Hence they have no legal responsibility for the conduct of such persons.”

In case anybody was still not sure that responsibility cannot be pinned on the Catholic Church for individual actions, it claims that everybody acts independently within the general church structure, from Pope to priest. Here is their incredible argument, which the Commission must look at closely with the aim of removing its effect for culpability purposes.

“The degree of control exercised by a bishop over a priest, or by a religious leader over members of a religious institute, is limited, and is quite unlike that which applies, for example, in the non-church context of ‘employment’. The Pope appoints most bishops, and confirms the election of bishops in those dioceses (none in Australia) which have the right to elect their bishops. The authority given to a diocesan bishop is exercised in his own name, not in any sense as the delegate or subordinate of the Pope. The Pope has primacy among all bishops, but his authority does not replace or supersede that of the local bishop in his diocese; rather, it complements it.”

“A bishop’s power is seen as personal and received from God. The bishop oversees the pastoral care of the parish, but the parish priest is a pastor independent of his bishop. The power or jurisdiction exercised by the parish priest is exercised in his own name, and not as the bishop’s delegate or employee. Religious institutes have autonomy in their internal governance. Thus each institute has its own discipline, and each has a leader to whom the members are answerable.” So, the best you can do is, as Billy Connolly did in the movie “The Man Who Sued God”, it to try suing God. Good luck with that.

Given that abuse allegations can take decades to surface, by which time the responsible person may be dead, the church has one final out. The submission says: “Action could perhaps be brought against the relevant bishop or religious leader (or other person in some position of managerial or other control over an accused at the time of the events in question) personally, but only if that bishop or religious leader or other person were still alive. Any successor to such a person bears no personal legal responsibility for acts done or not done by his predecessors.”

In case anyone is still unconvinced of the futility of challenging the church in the courts, and wants to have a go anyway, just to make a point, dire warnings are given, which should scare such people thoroughly.

It goes on to warn that the civil process is very public, and embarrassing. Victims may “feel shame”, and an “unwillingness to undergo the ordeal of cross-examination, either about the details of the abuse itself or about other aspects of their lives before or since.” Rape victims know about this one.

It continues the threatening approach with the observation that “proving that the plaintiff’s present condition was caused by the abuse may also present problems…. which can involve considerable focus on other aspects of a plaintiff’s life which can be unpleasant or embarrassing or painful to remember.” Better not have any skeletons in the closet. In a Canadian case, the witness suicided, when details of his life were released, by the church’s legal team during a hearing.

In a concentrated punch, the submission suggests that “The uncertainties surrounding the outcome of formal court proceedings inevitably impose stress on those involved in such proceedings. There are also other aspects of the litigation process which are unavoidably stressful, such as: the unfamiliar and (to many people) threatening or forbidding nature of the process including the courtroom itself; delay; cost; and the worry and anxiety surrounding the giving of evidence in a court, and being cross-examined, about such sensitive matters.”

Most victims have Post Traumatic Stress Disorder, Anxiety and Depression, so this is a psychological threat. It later states the obvious threat that the victim can be hit with the church’s legal costs if the victim loses the case. And lose they will, because, as the submission smugly points out, there is the statute of limitations defence still available to the church.

The submission boldly announces, for anyone not sure of where the real power lies, that “As a result, victims will generally need to seek from the Court an extension of time in which to bring proceedings. The application will involve additional cost and delay. The onus is on the victim to satisfy the Court that the limitation period should be extended. The decision to extend time is discretionary, and the outcome of the application is uncertain.”

Most of the above arguments provided by the Council simply enumerate the legislative changes which the government will have to make to give victims the justice they need and deserve. These barriers must be removed or the whole Royal Commission process will become the laughing stock of the world, eventually.

There is another feature of the “Towards Healing” process which demands change. This relates to reporting of abuse to the police.

The Council’s submission states that “A complaint concerning alleged criminal conduct will not be investigated under Towards Healing unless, and until, the victim specifically declines, in writing, to go to the police or other appropriate authority, despite having been encouraged to do so,”

The Church will not to take any action under Towards Healing, including “reparation” payments, “unless and until the victim signs a statement such as: The Catholic Church has strongly urged me to take my complaint to the police or other civil authority. It has been carefully explained to me that any process the Church establishes will not have the same powers to investigate the matter and to test evidence as the courts have. A Church process cannot impose the same penalties as a civil court. Aware of these limitations, I still state that I do not wish to take my complaint to the police or other civil authority at this time and I ask that a Church process be established.”

How is this any different to the “protection” racketeer telling the shop-keeper to keep his mouth shut?

Earlier versions of “Towards Healing” have included confidentiality clauses (see previous postings) which specifically prohibited the victim from revealing any details of the abuse to any other person. Sometimes, this has come with the proviso that “reparations” must be repaid, with interest, if the confidentiality clause is breached. Some people challenged this, and so for PR reasons, rather than legal reasons, this practice is now not in favour.

The Council attempts to give a false representation by claiming that “it has said publicly that in its view Church bodies should not seek to enforce any confidentiality provision contained in past deeds of release, where victims make approaches to, or respond to, enquiries from the Royal Commission.” However, as noted above, it does not actually have the power to force any church body to do this.

However, there is still a requirement that the victim “releases” the church from any further action by the victim, such as civil action. That is, they must sign away their rights to “compensation”, to get the “reparation.” The submission notes, naturally, that most victims sign up, especially due to all of the veiled threats detailed above.

The submission states that “Where a release is given as part of Towards Healing it would usually preclude the victim from seeking further relief based on the same complaint through a civil claim. No victim is asked to sign a release without being given the opportunity to obtain independent legal advice for which the Church Authority will pay.” If the release is not signed, the “Healing” process comes to an end.

The Royal Commission needs to revisit this whole area of victims being coerced into signing such documents, which have no other purpose than to protect the church, its reputation, power and finances, and recommend appropriate legislative changes.

The Catholic Church, at least in the past, has been proven to have protected guilty priest, and exposed more victims to serial offenders, as already evidenced at both the New South Wales and Victorian State enquiries. The Council’s submission, while on the surface claims to do away with this practice, in reality still allows for the guilty to go relatively unpunished, and to continue to enjoy the financial , legal and moral support of the church, even if “inadvertently”.

When warning that sometimes police are not involved in the process, the submission states that “Additional reasons, besides not wanting the story aired in public and reluctance to give evidence or be cross-examined in a court setting about the details of the complaint, can include:  fear of the accused.”

[The author is not a lawyer so the gist of the following paragraph may be incorrect.]

It would seem that there is an assumption in society that the court process involves mechanisms to ensure a victim, or any witness for that matter, is not subjected to intimidation by the accused. Under the “Towards Healing” process, the accused is provided with the name, but not the current address, of the victim. The Council claims that, if the matter goes to the police, the accused is not fore-warned of this. However, as came to light in the New South Wales enquiry, the accused can, in fact, be “tipped off”, even if “inadvertently”.

The Council defends its non-reporting stance by the following argument concerning mandatory reporting requirements: “However, that legislation applies essentially to situations where the abused child is still a child at the relevant time. Where the abuse in question occurred in the past, and where the child is now an adult, the mandatory reporting requirements are usually not enlivened However, that legislation applies essentially to situations where the abused child is still a child at the relevant time.” Again, the church can be sure that the victim is an adult before he or she raises a complaint, so it has a convenient out, which should be removed through appropriate legislation.

There are many other points of contention contained within the Council’s submission, but space does permit a full coverage of them at this time. They will be revisited as they arise during the Royal Commission hearings next week.

[Postscript: Readers are advised of a web-site by “Ann Free-Spirit” which is very good:http://www.youtube.com/user/annfreespirit/videos. Ann also has a book, Say Sorry: A Harrowing Childhood in Catholic Orphanages: http://www.amazon.co.uk/product-reviews/B009K4XQIU/ref=dp_top_cm_cr_acr_txt/279-8400694-6598129?ie=UTF8&showViewpoints=1 – see image below]