Victorian government should change law to allow Catholic Church to be sued

By Judy Courtin
Age
June 25, 2016

http://www.theage.com.au/comment/victorian-government-should-change-law-to-allow-catholic-church-to-be-sued-20160623-gpqaoo

Joe Benke

The Catholic Church continues to value its property and assets over and above the lives and deaths of thousands of victims and their grieving families. Photo by Virginia Star

An international spotlight is shining starkly on Australia this weekend as representatives from the United Nations, Germany, Switzerland, Poland, Chile, the UK, the US and Australia are gathering in Chicago for a three-day conference on sexual assault and the Catholic Church.

As the Australian speaker at this conference I am, inter alia, highlighting the fact that Australia continues to be the only country in the common law world in which there is no legal entity for the Catholic Church (and some other religious organisations) that can be sued by victims for the historical sex crimes of its clergy. This burdensome barrier to justice holds firm, despite the royal commission making a sound and easily implemented recommendation that, unless a proper defendant with sufficient assets to meet its liability is nominated by the church authority, then the property trust (the only legal entity that does exist) can be sued.

This recommendation, the implementation of which is the responsibility of our state and territory governments, was made by the Royal Commission into Institutional Responses to Child Sexual Abuse in its report on redress and civil litigation, published in September 2015. Critically, and unlike a recommendation of the earlier Victorian parliamentary inquiry into the handling of child abuse, the royal commission's recommendation has both prospective and retrospective effects, meaning it would apply not only to future victims, but also to existing victims.

Thus far, the Victorian government has displayed leadership in implementing several recommendations for legal reform in both the civil and criminal jurisdictions. New criminal offences include a grooming offence, a mandatory reporting offence and an offence requiring those in authority in institutions who have knowledge of a risk of abuse and have the power or responsibility to reduce or remove the risk, but negligently fail to do so. These new criminal provisions can only apply prospectively – or to people who commit these crimes after the legislation is enacted.

As such, these reforms have been non-contentious for, and supported by, the Catholic Church. Prospective laws pose no threat of prosecution and conviction for existing sex offenders or for existing members of the hierarchy who have concealed the crimes and/or not protected the victims from the very high risk of sexual abuse. Such public endorsement portrays the church as magnanimous and merciful. But this is misguided; the Catholic Church continues to value its property and assets over and above the lives and deaths of thousands of victims and their grieving families.

The pivotal civil reform enacted by the Victorian government in 2015, and for which congratulations are due, was an amendment to the statute of limitations such that the limitation periods that applied to civil actions founded upon child abuse were removed. Importantly, this reform applies both prospectively and retrospectively.

Reform to the statute of limitations, although essential, is entirely ineffectual unless and until there is a legal entity for the Catholic Church that can be sued. That is, without an entity to sue, victims continue to be barred from using the civil courts in their quest for justice, and, critically, the Catholic Church wilfully preserves its unjust and gratuitous evasion of its financial and moral accountability. Our state and territory governments' failure, to date, to implement this vital recommendation is tarnishing their international reputation, including at the United Nations.

Professor Kirsten Sandberg, a rapporteur and recent chair of the United Nations Committee on the Rights of the Child, is also speaking at this Chicago conference. That committee's 2014 review strongly criticised the Holy See for not taking seriously the extensive and global child sex crimes and cover-up in the Catholic Church. Marty Baron, the 2002 editor of The Boston Globe who spearheaded that newspaper's famous Pulitzer prize winning expose of concealment of clergy child sex crimes in the Boston Archdiocese, is also speaking at this conference. Notably, this investigation became the stuff of Spotlight, which was recently awarded an Oscar for best film in 2015.

As a legal representative of victims of institutional sexual abuse, my clients and all victims and their families call on the Victorian government to stand up and be the first government in Australia to introduce this vital legislative reform. Premier Andrews, you not only have the unique opportunity to display your government's independence and adherence to the principle of separation of church and state, but also to earn a favourable international "spotlight" to shine on you and your government. All that is needed is a victim-focused and courageous stroke of the parliamentary pen. No more procrastination Premier. Justice delayed is justice denied.

Dr Judy Courtin represents victims of institutional sexual abuse at Angela Sdrinis Legal, and is the author of 'Sexual Assault and the Catholic Church: Are Victims Finding Justice?'