Church Abuse Crisis and the Law

By Carmel Ross
Eureka Street
March 13, 2014

http://www.eurekastreet.com.au/article.aspx?aeid=39100#.UyLwTfl_uSp

Reports from the Royal Commission this week have focused on the efforts of John Ellis to have his experience of sexual abuse as a teenage boy, perpetrated by a Catholic priest, acknowledged and adequately addressed by the Church. The Royal Commission hearing has heard a litany of factors involving legal issues and the internal workings of the Archdiocese of Sydney that must have had a profound impact on Ellis. His courage to continue to fight for justice is admirable.

The finding by the High Court that Australian law as it stands does not allow an individual to sue the Catholic Church is an untenable situation if our nation believes justice for individuals is important. The law will always have its limits, but the Ellis defence implies that no single part of the organisation to which the perpetrator Fr Duggan belonged — which conferred upon him the status and duty of a priest and to which he was bound by vows to obey and serve — is able to be held accountable in law for his illegal and immoral behaviour.

The complexity of the Church as an organisation often defies understanding, even by many who have spent their lives in religious vows or on the Church payroll. Canon Law provides mechanisms for separation into smaller organisations such as parishes and dioceses, and often these establish a civil legal identity by incorporating as an association or company. Yet all remain part of the Church. This legal separation of so many entities within the Church sometimes allows issues of justice and accountability to fall through the cracks.

Laws relating to incorporated bodies strive to protect the interests of those bodies, but may not pay much attention to the achievement of justice. Certainly the legal representatives acting on behalf of the Archdiocese of Sydney appear to have conducted themselves during the court process as if their sole purpose was to avoid any prospect of the Church being held accountable for the abuse suffered by Ellis.

Legal personnel are bound to work with the law as it is, yet they, like all people, must be endowed with an inner moral compass that reacts to obvious injustice unfolding before their eyes. How unfortunate not only for Ellis and the Church that the focus was on protecting the Church's resources rather than striving to achieve justice.

The comment to the Royal Commission by Ellis after his meeting in 2009 with Cardinal Pell that the internal processes of the Archdiocese of Sydney seemed like 'a runaway train with nobody at the wheel' reveals some deep and serious failings in the administration of justice within the Archdiocese.



That Pell and the trustees were unaware of the details of the legal action underway is difficult to fathom and equally difficult to justify. It still remains relatively uncommon for legal proceedings to be instituted by those who have experienced abuse via church personnel. Regardless of the considerable size of the Archdiocese of Sydney, one would hope that matters relating to abuse and legal issues taking place outside the Towards Healing process would be reported to the archbishop.

Equally, as the trustees are similar to a board of directors, if the Archdiocese is involved in legal proceedings that stem from an abuse claim, one would hope the reporting processes to them would draw this to their attention. It might also be expected that when a legal case involves the level of expenditure this one did and relates to an individual abuse claim, someone in the Archdiocese would hold responsibility for informing the archbishop and trustees.

If none of this was happening then there are many internal reporting improvements that will need to be addressed by Pell's successor. Yet anyone experienced in organisational culture will know that it is about more than the internal procedures — it's about internal culture too, and in a Christian organisation justice and pastoral care should be core elements of internal culture.

Pell's subsequent efforts to deliver pastoral and financial support to Ellis are appropriate and commendable as is his courage in stating on the public record that he believes it should be possible for the Church to be sued in abuse cases. Psychological research on the impact of trauma is clear that one of the first, essential steps to facilitate healing is that the victim has the opportunity to share their account of what happened with another person who accepts and believes their account. Much as it is possible for someone to make a false allegation, this seems to be relatively uncommon in practice.

More important is to listen in humility to those who have been wronged, and to take steps to protect them and others from the risk of harm in the future. Abuse claims do not belong in the civil courts, because an adversarial approach is likely to further harm the victim as they strive to convince others of the truth of their account, usually in a context where there were no other witnesses.

Hopefully an outcome of the Royal Commission will be for the Church to reconsider its practices in the Towards Healing process, because Ellis is not the first for whom this process has failed to deliver any positive outcome. Healing, reconciliation and inner peace rely on the quality of relationships that are formed when a victim comes forward, in particular the pastoral care and apology that is offered when harm has been done.