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 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.