The Catholic Church Needn't Wait for a National Redress Scheme. It Can Act Morally Now

By Josh Bornstein
The Guardian
July 6, 2015

http://www.theguardian.com/commentisfree/2015/jul/07/the-catholic-church-neednt-wait-for-a-national-redress-scheme-it-can-act-morally-now

‘The church has created the mess but has the ability to take a radically different approach – a moral approach. It can create an entity with assets that can be sued by victims of abuse.’ Photograph: Paul Miller/AAP

At first glance, a national redress scheme for victims of childhood sexual abuse, jointly funded by government, churches, schools and other institutions, might seem like a sensible idea. A meaningful form of redress for victims is decades overdue. Such a scheme has been recommended by the royal commission into institutional child sexual abuse and received strong support from the Catholic church’s truth, justice and healing council (TJHC).

The federal government has not agreed to such a scheme, presumably with an eye to the bottom line. The temptation will be strong for many to call on the government to accept the royal commission’s recommendation.

And yet there is something about a national scheme that sticks in the craw. Should taxpayers fund a national compensation scheme? We have funded the current royal commission, which has been a ground-breaking investment in a better society. Julia Gillard’s brilliant “captain’s call”. But should we be required to subsidise the compensation payments to victims of the Catholic church’s monumental criminal enterprise?

The Catholic church is but one of the institutions that failed to take adequate steps to prevent children from being molested and raped. The royal commission has exposed many others including the ultra-Orthodox Jewish institution, Yeshivah, the Anglican church and the Salvation Army. The case for distinguishing the Catholic church rests on at least three propositions.

First, by virtue of its size, the scale of child sexual abuse within the Catholic church is extraordinary. We will never know precise numbers; the nature of child sexual abuse ensures that some victims will never speak up and others will commit suicide without sharing their awful experience. Thousands have been abused and many more devastated.

Decade after decade, the church shielded criminals within its ranks assiduously. Paedophiles were moved from one diocese to another. Others were off-shored to continue their crimes against children in a far away clime. Many have never faced criminal charges.

Thirdly, the Catholic church ruthlessly protected its assets from victims seeking redress. Its staggeringly vast wealth has been placed out of reach of civil law suits on behalf of victims of its wrongdoing with the assistance of very expensive legal and accounting advice. In Australia, funds and other assets have been moved into entities that cannot be sued.

This was highlighted by the case of former lawyer John Ellis whose life collapsed decades after his experience of child sexual abuse as an altar boy. The church and its lawyers resisted properly compensating him, successfully arguing in court that there was no legal entity that he could sue. What became known as the Ellis defence was cynically used again and again by the church to shield itself from civil law suits.

All the while the church continued to benefit from laws that make donations to religious institutions tax deductible. Religious institutions also enjoy tax exempt status even when engaged in profitable commercial activity. As taxpayers, we subsidise the Catholic church and other religious groups.

So should taxpayers hand over another $1.9bn – the amount the government will reportedly be asked to contribute to a national scheme over 10 years – to help organisations like the Catholic church settle victims’ claims against them?

Consider the notorious case of Emma and Katie Foster, two children who were serially abused from about the age of five by Catholic priest Kevin O’Donnell in the Melbourne suburb of Oakleigh.

As David Marr writes in his Quarterly Essay, The Prince: Faith, Abuse and George Pell, 15-year-old Emma was anorexic, depressed and suicidal when her parents, Chrissie and Anthony, met with George Pell, the then archbishop of Melbourne, in 1997. Just before the meeting, the Fosters overheard Pell say to a confidante: “Are they on our side?” Pell offered them an ex gratia $50,000 payment under the Melbourne Response, the church’s newly created scheme set up to deal with the growing deluge of sexual abuse complaints.

Under the scheme victims had no access to lawyers, any payments were confidential, admission of liability was limited, and complainants lost the right to make any further claims against the church. The Fosters refused the paltry offer, but it took nearly 10 years in court to win significantly higher settlements from the church. Emma committed suicide during the process, and Katie suffered permanent damage after she was hit by a car while binge drinking.

Anthony Foster told a Victorian parliamentary inquiry in 2012:

Our legal system currently helps to deny victims access to the enormous wealth of the church … It must now be reviewed to ensure that it complies with the legal and moral standards of our society to ensure and enable just compensation and care for all victims. If victims had been awarded civil levels of compensation, the church would have acted decades ago to prevent incidences of sexual assault and the subsequent financial liability. Instead the church has been able to minimise payments to victims to levels that it dictates.

Foster is right. The legal system can and does frequently work well for victims of wrongdoing. Recently victims of Victoria’s horrendous bushfires of 2008 successfully settled their class actions against power companies. Victims of child sexual abuse have settled many civil claims to date. However, redress can fall down when defendants take elaborate asset protection strategies. James Hardie did exactly that to asbestos victims. In its approach over decades, the Catholic church has aped many corporate wrongdoers keen to avoid or delay accountability for wrongdoing.

The church has created the mess but has the ability to take a radically different approach – a moral approach. It can create an entity with assets that can be sued by victims of abuse. Such a step has already been taken by each of the Anglican dioceses of Bendigo, Ballarat and Wangaratta. Anglican bishop John Parkes explained that “survivors should be able to sue a readily identifiable church entity that has the financial capacity to meet claims of institutional child sexual abuse.”

The Catholic church need not wait for the royal commission to conclude, or for any ensuing debate with government about a national scheme. It can be proactive and facilitate giving its victims the means to seek redress. It could have done this years ago. Or last week. Or yesterday. It can act now. Unilaterally.

The TJHC and others have argued that a national redress system would not only be simple and expedient, but would have the additional advantage of not re-traumatising victims. But my experience as a lawyer has reinforced that victims must deal with trauma, whatever scheme or process they face. Any retelling of traumatic experiences is difficult; it doesn’t matter what label that is attached to the process.

To be fair, the TJHC has made some encouraging noises in a recent submission to the royal commission, arguing for legislation to ensure churches and other organisations with responsibilities for children establish legally incorporated entities that can be sued. But it is careful to say it prefers a national redress system, partly funded by government. In doing so it continues the church’s long tradition of asking for special treatment and exemptions from laws – from taxation laws to anti-discrimination laws – that apply to almost everyone else.

The Salvation Army, a number of Jewish institutions and even some parts of the Catholic church, both within Australia and in other countries, have allowed their wealth to be opened up to civil claims.

If it followed suit, the Catholic church would send a powerful and radical message by acknowledging that it has harmed many children and their families. It would be taking responsibility for the destruction, the enormous suffering and the suicides. It would effectively be saying: we cannot wind back the clock but we must now accept accountability for what has happened. We are sorry and we are taking steps to ensure victims of our wrongdoing can be properly compensated.