Church Legally Liable for Pre-1996 Child Sexual Abuse

By Frank Brennan
Eureka Street
October 21, 2014

http://www.eurekastreet.com.au/article.aspx?aeid=42155#.VEY9APl_uSp


In August the Royal Commission into Institutional Responses to Child Sexual Abuse turned its spotlight on the Melbourne Response, the protocol adopted by the Catholic Archdiocese of Melbourne after George Pell became the Archbishop of Melbourne in 1996. Much of the media attention was on Cardinal Pell’s video link appearance from Rome (pictured), where he is now overseeing Vatican finances as Prefect of the Secretariat for the Economy.

His critics understandably fixed on his comments about the common law, vicarious liability and the liability of truck owners for the wanton criminal act of any truck driver. This is the third time Cardinal Pell has appeared and been cross-examined about his role as a bishop in overseeing church attempts to put right the tragic consequences of child sexual abuse perpetrated by church personnel, including priests. As a result of his three appearances, there is now greater clarity about past practices, as well as greater precision about the unanswered questions for those seeking a better and safer future for all children in all institutions, including the Catholic Church.

Reviewing Cardinal Pell’s evidence, I have concluded that we Catholics need to accept moral responsibility and legal liability for all child sexual abuse committed by clergy prior to 1996, regardless of what might be the moral or legal position after 1996 when improved measures for supervision and dismissal of errant clergy were put in place. Ultimately, the High Court of Australia will be asked to reconsider the law of vicarious liability. But in relation to any abuse occurring before 1996, there is no way that we can argue that we had structures in place which gave priority to the well being of vulnerable children. That is why we are collectively responsible as a social institution. Reviewing Cardinal Pell’s evidence I have also concluded that he made a fair fist of trying to fix things after he became archbishop in 1996. Credit should be given where it is due, even though we are yet to hear why he decided not to co-operate with the other Australian bishops in drawing up a more robust national protocol. I have no doubt that further improvements can be made, both to the Melbourne response and the national protocol Towards Healing. Hopefully Justice McClellan and his fellow commissioners will be able to provide a politically achievable blueprint for all institutions.

1996 was a significant year, and not just because that was when George Pell took over as Archbishop of Melbourne. It was the year that all Australian bishops agreed to major changes aimed at correcting past failures to deal adequately with child sexual abuse in clerical ranks. It also happens to be the year that the Irish bishops adopted new procedures which have helped to stem abuse there. Everyone, including church leaders realised that there was a real problem and that it required urgent action different from the ad hoc measures which had been put in place and tried over the previous decade.

On his appointment as archbishop, Pell wasted no time and spared no expense engaging the top end of town to design a scheme for redress and the provision of counselling services for those victims reporting sexual abuse by a church official. Before acting, Pell had discussions with Jeff Kennett, the Victorian premier, and Richard McGarvie, the governor. He consulted people like Sir James Gobbo and QCs Charles Francis and Joe Santamaria. The protocol was finalised in close consultation with the Victorian Police and with the Victorian Solicitor General. He set up a panel to oversee the administration of the protocol. Membership was not confined to Catholics. The chair of the panel has always been an outstanding lawyer: first, Alex Chernov, now the Victorian governor; David Habersberger later a Supreme Court judge; Sue Crennan now a High Court judge; and now David Curtain QC, one time Chairman of the Victorian Bar Council. These are not the sort of people you retain if you are wanting to engage in cover up or if you are wanting to maintain a secret Vatican approach at odds with contemporary community values. There can be no doubt that everyone has been on a steep learning curve and that Pell and his fellow bishops since 1996 have been keen to learn the lessons.

But prior to 1996, things were a mess. For nine of those years, Pell was an auxiliary bishop in Melbourne. Only his archbishop was superior to him in the archdiocesan power structure. Pell told the 2013 Victorian parliamentary inquiry, 'When I was Auxiliary Bishop of Melbourne I was not a part of the system or procedures for dealing with paedophilia.' By 1988, he like anyone else attentive to media reports was aware that there was a problem and that there were 'terrible situations, for example, in Canada'. In 1988, Pell’s superior, Archbishop Sir Frank Little had set up a confidential subcommittee to deal with abuse complaints. Membership included a couple of clergy, a barrister and a psychiatrist. Pell says he knew nothing of their deliberations. In 1993, a Pastoral Response Office (PRO) was set up in the archdiocese. Pell says, 'Prior to my appointment as Archbishop, I had little if any involvement with the PRO.'

As an auxiliary bishop, Pell was responsible for one of the three zones into which the archdiocese was divided. He was charged with monitoring the priests in that zone. For example there had been complaints about an alleged abuser in his zone, Fr Searson. Pell told the Victorian inquiry:

There were two police investigations into Searson, I think in 1989 and 1991. They were inconclusive. The Catholic Education Office got the lawyers Minter Ellison to evaluate what was done and whether it was done properly, and they were still unable to pin anything on the man. He was not a pleasant man. He denied everything and anything. In the Searson matter I certainly acted on that, and this is one case where we consistently tried to do the right thing….

I met on at least two occasions with groups of teachers from Searson’s school. One was in 1989 and the other one was in 1991 or 1992. I think it was after the second meeting I asked the curia about it. It was mentioned that the Catholic Education Office had been investigating these things — I certainly did not do nothing; I certainly did. I was sent back to Searson to tell him to follow the protocols correctly, because people were saying he was misbehaving.

Later as archbishop, Pell suspended Searson from all parish duties. Ultimately Searson pleaded guilty to a physical assault of children but no sexual abuse was ever proved.

In his sworn statement to the royal commission in August, Cardinal Pell said, 'During the period in which I was Auxiliary Bishop from 1987 to 1996, I did not myself have any direct responsibility for handling issues relating to child sexual abuse. It was not my role to assist Archbishop Little in managing these matters.' He told the Commission, 'I wasn’t in the direct line of authority before I was Archbishop. I was an Auxiliary Bishop with no responsibility in this area.'

What we Catholics have to accept is that, at least until 1996 when the new protocols were introduced, we were part of a social institution so hazily structured that not even one as savvy as Cardinal Pell was expected to know or do anything conclusive about alleged child sexual abuse, regardless of how high he had escalated the ecclesiastical pyramid. He had been a priest in Ballarat where abuse was rampant, rector of the Melbourne seminary when abuse in some of the Melbourne parishes was frequent, and then auxiliary bishop for nine years when clerical sexual abuse was being constantly discussed in the mainstream media. Conceding that there was 'significant truth' in the suggestion that a 'systemic cover-up allowed paedophile priests to prey on innocent children', Pell told the Victorian parliamentary inquiry:

Nobody would talk about it; nobody would mention it. I certainly was unaware of it. I do not think many persons, if any, in the leadership of the Catholic Church, knew what a horrendous, widespread mess we were sitting on. I have sometimes said that if we had been gossips, which we were not, and we had talked to one another about the problems that were there, we would have realised earlier just how widespread this awful business was.

If only Pell and Little had the occasional responsible conversation, rather than a gossip, about these matters, how different things might have been before 1996. If only Pell and the clergy on Little’s subcommittee had met for the occasional discussion, and just over a cup of tea. If only Pell had decided to seek out the PRO members in order to get a better understanding of the matters which were being raised in the media. The Church has not judged him to have failed in his duty as a bishop for knowing and doing little before 1996. The Church has promoted him as one of our finest bishops who could not be expected to have known or done anything more before 1996.

We have to accept that the institution until at least 1996 was structured so opaquely as to work against the interests of vulnerable children. The inner sanctum of an archdiocese in those days could be so fortified and so exclusive as to shield a competent auxiliary bishop from alleged abuse by a priest in the bishop’s allocated monitoring zone. That fortification was not put in place and maintained with a care for children. It was maintained without sufficient regard for the well being of vulnerable victims whose interests were secondary to the name of the Church and the protection of its clergy.

This is the shocking moral consequence of Cardinal Pell’s evidence, and now we all as Church must accept the blame, committing ourselves to transparency and accountability in the Church so that this sort of thing can never happen again. We, and not just the deceased bishops who occupied the inner sanctum, must accept responsibility for the harm suffered by those who would not have suffered but for the existence of such a fortified, exclusive inner sanctum. We can do this, and should do this, even while acknowledging the exhaustive work done by our leaders like Cardinal Pell who have worked to clean up the unholy mess since 1996, making the Church safe for children. Whatever the High Court ultimately rules about abuse occurring after 1996, we need to wear the rap for everything that went on before 1996 when the procedures in place were hazy, porous and totally inadequate.