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In defence of Cardinal Pell

Frank Brennan |  21 April 2014

Screen grab of Elizabeth Farelly's SMH op ed 'Cleaning up the post-George Pell parish in Sydney'I write to defend Cardinal Pell in the wake of Elizabeth Farrelly's claim in the Fairfax press that Pell, when appearing before Justice McClellan at the Royal Commission, proposed a 'priestly child abuse insurance scheme' and that 'if you wanted to maximize the damage already done to countless children, you'd be hard put to find a surer way or crueler'.

I am a Catholic priest, a Jesuit, but I have never been on Cardinal Pell's Christmas Card list. It got to the stage a couple of years ago that he gratuitously published the observations that 'part of the key to understanding Brennan is that he's really not well educated in the Catholic tradition — in Catholic theology' and that for the Jesuits, Jesus 'has been almost displaced by (their) enthusiasm for social justice'.

He is not one of my fans, and neither am I one of his. But I think Farrelly has unfairly kicked him when he is down. More importantly she has muddied the waters about what is a critical issue for the victims of child sexual abuse suffered within institutions, including the Catholic Church.

Under cross-examination, Pell did float the idea of insuring a religious superior against negligence for failing adequately to supervise a pedophile priest. It was McClellan, not the Cardinal, who then floated the idea of a pedophile priest insuring himself. These were the critical questions McClellan put to Pell:

Cardinal, the criminal conduct we're talking about is a deliberate tort; you understand that? I mean, if you hit someone in the street, you may commit a criminal assault, but you will also be liable in the civil law for assault. Do you understand? There's no reason why the insurer couldn't provide insurance for a civil wrong, could it? They often do.

Pell, the lay witness, was simply carried along by the judge, who was in error. Pell finally answered, 'I simply don't know, but if you say that they can, good.'

After two and half days in the witness box, he was a man on the ropes.

You cannot and should not be able to insure against your own commission of a deliberate tort or criminal act. Any such insurance policy would be void. But that is not what Pell suggested. It was the judge who got it wrong.

While it is preposterous to suggest that anyone (including a priest) insure themselves against wanton criminal acts such as pedophilia, it could be very sensible and helpful for institutions which work with vulnerable children to insure themselves for any vicarious liability in relation to wanton acts committed by their wrongdoing employees, or for any negligence in failing adequately to scrutinise a prospective employee or to supervise an existing employee. That's what Pell was suggesting.

The Australian Catholic Church, with the forced scrutinies of this Royal Commission, has hopefully been assisted in getting back to its mission and basic values, espousing truth, justice, compassion and transparency. As an institution, it has been dragged kicking and screaming.

Under cross examination, Pell had to admit that he, his advisers and his staff had fallen well short of the standards expected of a model litigant, let alone a Christian organisation. He admitted to the vast chasm between Christian decency and the tactics employed in pursuing John Ellis in the courts.

It was not until his last day in the witness box that Pell made the long awaited apology to Ellis, not just for the initial and sustained sexual abuse Ellis suffered at the hands of a deviant priest but for the hurt which had been inflicted on him by the Church ever since he had sought compensation and closure.

The Cardinal's long time critics found fault with his mode of delivery. He did not even look at Ellis who was sitting directly in front of him. And the apology came years too late. But it did come.

To date, there have been many hurdles for a victim wanting to sue anyone other than the criminal perpetrator. McClellan and his fellow commissioners will need to give detailed consideration to these hurdles, making recommendations to government about reforms which will impact on all employers and not just churches. Insurance for the employers could be a surer and kinder way to help piece together the fractured lives of those abused while entrusted to the care of institutions like the Catholic Church.

Pell's point was that such insurance might help victims of child abuse. And it just might. Though money is never the total solution, it can sure help with trying to put back together the pieces of shattered lives.


Frank BrennanFrank Brennan SJ AO is professor of law at the Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. An edited version on this article first appeared in the Sydney Morning Herald on 20 April 2014.



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Submitted comments

I must say that I enjoy reading Elizabeth Farrelly's writing - she usually has a nice turn of phrase. And mostly I agree with her, not always. I think the exchange between Justice McClellan and Cardinal Pell was an interesting one - and perhaps McClellan was on more of a fishing expedition than pursuing a legal argument. I think Justice McClellan should be thanked by the Catholic Church for his painstaking work. And Cardinal Pell did offer an apology.

Pam 19 April 2014

Frank, its interesting you have had some kind of pang of conscience about Cardinal Pell describing him as 'being kicked when he is down'.

Micah 19 April 2014

Cardinal Pell and the catholic church in Australia you are losing members at such a fast rate that maybe the local parishioners are been shamed and embarrassed to the point enough is enough . Your healing and justice effort has been a sham .The future of those still active are in the hands of the currant leaders ..The ball as they say is in your court .Don't point the finger elsewhere .

lawrie higgins 19 April 2014

Why don't we dispense with all the hyperbolic spiels and just start a 12 step program for pedophiles, where people can heal perpetrators and victims

Cynthia Parker-gallagher 20 April 2014

His Eminence was responsibly more nuanced than apologising "for the hurt which had been inflicted on him by the Church" [In fact the church is composed of 2,4 billion who would know zilch of Ellis disaster!] In fact His Eminence blamed a small number: "I want publicity to say sorry to him for the hurt caused him by the mistakes made, admitted by me, and some of our archdiocesan personnel during the course of the Towards Healing process and litigation."

Father John George 20 April 2014

First I would like to state that survivors of catholic church child sexual assault, of whom I am one, detest that church officials refuse to listen to us, lie to us and about us, and then presume to speak for us. Which is simply another technique to silence us and drown out our truth. Frank Brennan does not speak for survivors. Many are too damaged or too dead to speak for themselves, but some are willing and able to do so. On this topic we deserve to be heard. Insuring paedophiles is an interesting concept. It could result in a far greater advance in child protection than has been achieved in the last 2,000 years. Since known child sex offenders would be effectively uninsurable, this would force the catholic church, and other institutions who enable these crimes, to finally remove known but hidden rapists from access to children.

Nicky Davis 21 April 2014

Frank, I think that Cardinal Pell's apology would have hauled a lot more freight if his resignation from all offices was part of the load. And John George, you are implying here that the Cardinal was actually exercising a mental reservation in his apology. That is what you have claimed here repeatedly and also on the blog specially established for your nostrums which are simply the on-published duplicitous rubbish put out by Bill Donohue and the Catholic League - word for word.

David Timbs 21 April 2014

Fr Brennan is correct. To insure ones self before committing a crime is legally ridiculous and against Australian Law. The Cardinal never made that statement at all, nor anything like it, and it is incorrect to infer or say so. Interestingly, who did?

Richard Divall 22 April 2014

Does Cardinal Pell realise that he is down? Sadly no, the reality is that it is not possible for him to truly understand the evil that he has been party to over these past years. His world view does not allow for such introspection and he is merely participating in the Commission because he feels a sense of duty to do so. Like many others in the Catholic church he can't understand why we, the abused don't move on with our lives, forget all that 'spilled milk' as it was in the past. Frank, I enjoy your discussions and considerations of ways forward but suggest that being an apologist for Cardinal Pell is not the best vantage point from which to start this one.

Carol 22 April 2014

A good article. It refutes the whole basis of Elizabeth Farrelly's article and should therefore be offered to Fairfax to publish. And it should be published by them if they have any sense of balance.

Bill Frilay 22 April 2014

Thank goodness for FRANCIS SULLIVAN- the only person in this whole debate and major issue who has shown any common sense. Get over it please

PHIL 22 April 2014

Heartening to read some sort of considered comment on this issue, which seems particularly subject to nonsense such as Ms Farrelly's. Without wishing in any way to absolve the perpetrators or dismiss the suffering of the poor victims, there are several problems that I, a non-Catholic, have with the zeal to deprecate the Church on this issue: a criminal act is a matter for criminal sanction--in the first instance it is a matter for the police; by what authority does the State tell the Church that it may not practise forgiveness?; and that the enthusiasm for revengeful punishment seems to imply that without stern deterrence anyone might be capable of such heinous crimes. We should perhaps be a little less hasty in judging the past through the prism of the present. In the dark ages of the twentieth century churches were providing some sort of protection for orphans, for example, when the public and the State were not. Would they have been better off on the streets?

J Vernau 22 April 2014

My article was previously published on the various Fairfax websites (eg: http://www.smh.com.au/comment/time-for-the-catholic-church-to-return-to-its-compassionate-core-20140417-zqvzv.html) but they removed all references to their columnist Elizabeth Farrelly which was unfortunate. I thought her column (“Exit Cardinal Pell, with a bombshell”, 3/4) was a piece of reckless journalism which needlessly muddied the waters on some of the key questions confronting the royal commission and the Church. She obviously had not heard the relevant evidence or read the transcript. Mind you, I thought she was back to her best form with her Easter reflection last Thursday (“Meditation on the cross, and how a simple hen can save eternity”, 17/4). Her errors were unfortunately repeated by law professor Desmond Manderson in the Canberra Times at http://www.smh.com.au/comment/cardinal-george-pell-just-doesnt-get-it-with-child-abuse-20140404-zqq5c.html . There was a flurry of letters in the Canberra Times including a couple from me in which I was able to put right some misperceptions. See http://www.canberratimes.com.au/comment/ct-letters/in-denial-about-ageing-20140408-36bew.html and http://www.canberratimes.com.au/comment/ct-letters/mr-fluffy-houses-are-time-bombs-20140414-36ndx.html . It was the judge who made the error, not Cardinal Pell. Fairfax columnists think it an unforgivable error. So it will be interesting to see where they go from here in their coverage of the commission.

Frank Brennan SJ 22 April 2014

Those who read the letters in the SMH are familiar with numerous critiques of Elizabeth Farelly's writing on the basis of incorrect referencing and out of context selective quotation, usually to support her opinions. This is precisely what she has done re this matter. Thank you for pointing out what indeed was said, Father Frank.

john frawley 22 April 2014

Well said, Frank.

Pauline Small 22 April 2014

One feels that Frank Brennan is a little too generous towards the former Cardinal of Sydney. Elizabeth Farrelly's article seemed to lay bare the truth. Someone recently referred to Pell as another King Lear but on reflection that may be a bit too generous. because one is never sure what Pell stood for.. Lear was once a powerful and commanding figure whereas at best Pell only comes across more as Richard 111.

john hill 22 April 2014

Two things: Firstly Pell had met with John Ellis in 2009 and apologised to him and his wife. Whether that apology was sufficient is unclear. Secondly having watched proceedings on the last day, and particularly the last 5 minutes where Pell read a prepared script, he appeared intent on not missing parts of a full admission and apology. I thought he was close to breaking down and his decision not to engage with Mr Ellis was as much out of respect for the victim. Asking for forgiveness did not come with the expectation that it would be immediately forthcoming. Damned if you do and damned if you don't! What is clear is that the Church was not a model litigant and used Mr Ellis as a battering ram to protect itself from civil attack. That might have have been good legal tactic by corralling victims into Towards Healing and the Melbourne response. However it has been a dismal failure in walking with the victims. The human cost is inestimable and the compounded financial cost a monument to the Church's failure to behave as a Christ would have it behave.

Damien 22 April 2014

Frank , I note the quote in your article about what Pell said about Jesuits, Jesus and social justice. Perhaps Pope Francis will be just the right person to explain to Pell the connection between Jesus and social justice. Meanwhile, I recommend that the cardinal reads 'Evangelii Gaudium"

Ellen 22 April 2014

The almost juxtaposition of the responses by Nicky Davis [a survivor of clerical sexual molestation -- who, plainly had a deep and enduring knowledge of the horror of the experience] and "Phil" whose callous "Get over it please" indicates that he has neither knowledge or insight. Would "Phil" so brusquely tell a traumatised soldier or a holocaust survivor to "get over" their haunting memories of their traumatic experiences? I'd hope not. Of course [and this was also an aspect of the dreadful way in which church authorities and their lawyers operated], when these dreadful experiences happened to anonymous "others", whom such a respondent has never met and learned from, its all to easy to brush them off. I'd suggest to "Phil" that some serious reflection is necessary.

John Carmody 22 April 2014

Thank goodness for FRANCIS SULLIVAN- the only person in this whole debate and major issue who has shown any common sense. Get over it please. Bill Frilay 22 April 2014. And that my friends is exactly what the role of the TJHC is all about: silking over the muddy waters so as to have 'ordinary catholics; respond like this.

Stef 23 April 2014

Ms Ellen be assured, His Eminence not only read 'EG' but sent me a personally autographed copy-same with Lumen Fidei. His Eminence is a most learned and well read prelate.and Prefect of the Secretariat for the Economy.

Father John George 23 April 2014

Fr John George, There is reading, and there is reading and understanding and applying to one's life. May we all be given the grace to do that.

Ellen 23 April 2014

Richard Divall, parents can insure against risk of harm including criminal harm, to vulnerable family members caused by their helpers in abusive education in sexuality and true love..

Oliver Clark 24 April 2014

Frank Brennan appears to give the impression that diocesan priests are 'employees' of the diocese or bishop, and that the bishop or diocese is the 'employer', with all that that relationship means in law. My understanding is that Canon Law does not recognize such and employer/employee relationship at all.

Peter Wilkinson 27 April 2014

The Supreme Courts of Canada and UK have found that diocesan priests are employees of their bishops and religious brothers teaching in schools are employees of their superiors for the purposes of vicarious liability. Canon law is not determinative. I presume Australian courts will go in the same direction as Canada and the UK.

Frank Brennan SJ 28 April 2014

A gratifying clarification at SMH, Monday, May 5 2014, p.2 CLARIFICATION Elizabeth Farrelly's column regarding evidence at the Child Abuse Royal Commission, "Exit Cardinal Pell, with a bombshell" (April 3), should have said Justice Peter McClellan proposed that priests could be insured, not Cardinal George Pell. Cardinal Pell endorsed the proposal.

Frank brennan Sj 05 May 2014

Professor Manderson has now written to Gerard Henderson, saying, "I do think that Justice McClellan would be subject to the same criticisms as I make of Cardinal Pell."

Frank Brennan SJ 09 May 2014

Today the Canberra Times has published its long overdue clarification in the same terms as the Sydney Morning Herald.

Frank Brennan SJ 13 May 2014

On 16 May, David Shoebridge told the New South Wales Parliament: “As a barrister I have been in trials lasting days, weeks and even months. I have represented clients during months of hearings in a royal commission and seen countless witnesses facing hours of cross-examination. In the most extreme—and rare—cases this cross-examination can last up to two or three days as issue after issue is explored in depth. Cross-examination is intended to rigorously test evidence that a witness has given. It is an unbalanced process where the barrister has all the power and the witness can be run in circles with little if any ability to fight back. At the end of two or three days of cross-examination all but the most extraordinarily robust witness is reduced to a wreck. By this stage a witness is exhausted, mentally and physically, and in danger of giving whatever answer they can to just end the barrage.” He was speaking in support of Peter Fox at the Cunneen Inquiry. But his remarks would support my assessment in this article that “After two and half days in the witness box, (Cardinal Pell) was a man on the ropes”.

Frank Brennan SJ 29 May 2014

And so it might but how will that ensure that the culture of abuse that thrives in RC institutions will eradicated and children kept safe from having their childhoods stolen and their innocence destroyed?

Liz 28 June 2014

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