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Church legally liable for pre-1996 child sexual abuse


Cardinal George Pell video link to Royal Commission from Rome

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.

Frank BrennanFrank Brennan SJ, professor of law at Australian Catholic University, is presently Gasson professor at the Boston College Law School.

Topic tags: Frank Brennan, Royal Commission, Cardinal George Pell, Melbourne Response, Towards Healing



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Existing comments

The Church is accepting blame because it has no other option in face of the outpouring of the pain of its victims! Never was it and never will it be that the Church leadership is unaware of "the horrendous widespread mess they were (and are still are) sitting on"! I was abused by clergy and nuns working in the Melbourne Archdiocese. In abducting me from Melbourne, they deliberately, with intent flouted the Law to get me out of the country. The Melbourne Response refuses to deal with my complaints concerning these nuns. That it has engaged top notch lawyers such as David Curtin QC. does not guarantee that there is no adroit lying, not even at a Royal Commission hearing! Double talk is not the conduct of "the unaware". Robert Ftzgerald acknowledges" the extraordinary and deeply troubling involvement you (I) describe with the P********* Sisters, still The Melbourne Response refuses me redress.The Church has never been transparent and does not, in thruth, recognise its need to be accountable. It will continue with rhetoric to uphold the cover up. The above is a brilliant example of the devious, self opinionated inner sanctum. A High Court "rap" will not unsettle this lot.

Ribin Ruth Henderson | 21 October 2014  

Dear Professor Brennan, why have you not made any mention of Cardinal Pell's approach to and egregious handling of the John Ellis Case in relation to which the esteemed Cardinal hired and paid handsomely some very "big end of town" lawyers to fight tooth and nail the claim of an honest survivor of clerical abuse in a manner totally "at odds with contemporary community values" and the professed ideals and values of the Catholic Church solely in order to protect the Church's money and breathtakingly enormous monetary assets? Does the Church only meet its legal and moral obligations and responsibilities when forced to do so by law and when it has no way of escaping its moral and legal obligations and responsibilities? It is patently clear that more than anything else in this world or the next the Church treasures its money, its assets and its money-making franchise and brand.

Emmanuel Aivaliotes | 21 October 2014  

The Evidence that has come to light as a result of the NSW Police Integrity commission hearing last week shows very clearly that Fr Brennan is very wrong to imply that thanks to Pell the church cleaned its act up after 1996. Evidence of police collaborating with the church in deception dishonesty and concealment of systemic serious crimes is so persuasive most of the evidence remains confidential and subject to a suppression order. The church and its senior clergy remain well above and beyond the law and its business as usual.

Mark Fabbro | 21 October 2014  

While I support "transparency and accountability", it is not clear to me why innocent priests and religious who have not abused children and who were not part of the "inner sanctum" of the cognoscenti are obliged to "accept responsibility" for harm they did not inflict. To insist that they do would, it seems to me, serve to compound the injustice. What, moreover, does all Catholics "wearing the rap" mean in practice?

John Kelly | 21 October 2014  

Father Brennan's generosity in sharing blame would undoubtedly be appreciated by Cardinal Pell when he writes: 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. That is an extraordinary suggestion - that all church members should share blame for actions of our "leadership" - even after the recognition of major problems and the establishment of the "special issues" committee by the ACBC. I, for one, cannot accept blame that all hierarchs in the church "leadership" ignored he issues 'till 1996, nor do I accept that problems were miraculously (magically?) fixed then. Evidence at the Victorian Inquiry and at the Royal Commission shows that serious problems with the handling of known problems continue unabated. I ask too - what is the suggested involvement of the High Court ? What issues are likely to raise High Court hearings?

Jim Boyle | 21 October 2014  

Have I understood correctly that the idea is to treat the pre-1996 sexual abuse of children by clergy differently to later sexual abuse of children by clergy? Brilliant. The Catholic Church’s response to child sexual abuse of children was still a problem in 1996 and it is still a problem today. The evidence presented to the Royal Commission suggests that the Melbourne Response and Towards Healing are nothing more than public relations exercises to make it appear as though the Catholic Church is addressing the issue of child sexual abuse. These schemes are run by insurers and lawyers in an effort to minimise Church payouts and to silence victims. Victims have no choice but to go through the Church-run processes and accept the pittance that is offered to them. The alternative is to follow the path set by John Ellis in 2007, where the Catholic spent in the order of $1.5 million to defeat him in court. The Archdiocesan assets of Sydney are worth $1.2 billion. Ellis sought $100,000.

Brandon | 21 October 2014  

A beautifully balanced analysis of flawed humans in a woefully antiquated management structure. I agree.

moira rayner | 21 October 2014  

The next question that comes to mind is what factors allowed this situation to persist, and have they been/are they being identified and transformed? Issues of clericalism and governance practices needed to be reviewed for the whole gamut of church life. This is indeed part of the response that all Catholics should participate in achieving if justice is to be restored. I only know the Australian situation through Eureka Street as I am a Canadian, but I believe that this applies to us as well.

Marianne McLean | 21 October 2014  

So when will there be a synod to clean up the mess the hierarchy and it's lesser clergy have made this is too important to be swept under the carpet again

Irena | 21 October 2014  

Well spoken Frank. The responsibility rests with all of us who make up the church.

Matt Casey | 21 October 2014  

Even today, the RCC continues to be 'opaquely structured' and will be so until it is admitted that Canon Law has supported cover-up. If 1996 was a significant year, then greater shame has accrued since then because nothing has been done to correct a fundamental cause. An examination of Canon Law and its attachments will reveal several references to 'pontifical secrets', 'secrets of the holy office', 'oaths of secrecy', 'all documents to Rome - no local copies' etc. Anthony Fisher's recent public statement - 'there will be no more cover-up' will be hollow words if those canon law references are not publicly removed. If 'we Catholics' presumably including laity are to accept moral responsibility, then laity must have a voice in decision making. George Pell's seeming denial of vicarious liability seems hypocrisy compared with action he 'certainly' would have taken against against any priest who breeched the magisterium. Closure for this ugly face of the church seems as far away as ever.

John Casey | 21 October 2014  

Hi Frank Completely with you on this one. This being the case, the buck stopped with the now deceased Archbishop Sir Frank Little. Is it appropriate for him to remain enterred at the crypt of St Patrick's Cathedral. I am of the firm view that his resting place should move elsewhere. Symbolically this would show sincere contritution on the part of the Church. Thanks Neil

Neil De Cruz | 21 October 2014  

Frank, these are welcome words, particularaly the last two paragraphs. The Church as a whole, though, has to recognise that this fortress mentality put many persons 18 and over also in real harm's way as well. 18 is not a magic number whereby abuse becomes consent when there is a gross power imbalance as occurs when a spiritual relationship is deliberatly sexualised by for example, a priest to a parishioner, male or female. Abuse of spiritual power occurred pre 1996 in this fortified structure, and this structure pertained to Religious Orders as well as Dioceses, to Provincial Leaders as well as to Bishops. Lives have been wrecked by the sexualised abuse of spiritual power to many people who were over 17 at the time of the abuse. Only when the Church as a whole recognises that this fortress mentality supporting the prevelance of clerical entitlement is about targeted people of any age in a power relationship, not only about children but about any parishioner targeted for sexual gratification of the priest or church personnel, will true justice start to prevail. It needs to be recognised that targeting is the concept which puts the empahisis on the perpetrator rather than vulnerability which puts the emphasis on the victim. In the pre 1996 Church this hazy, porous and totally inadequate set of procedures, as you say Frank, whereby priests could be attached loosely to a parish and then later and still today, claim they were not officially appointed and so had no duty of care to the parishioners they ministed to, has to be recognised as demonstrating that well being for the priest and the Church is still ongoing and placed ahead of that of the victim, for cases pre 1996, irrespective of the age of the targeted person. There needs to be acknowledgment of this widespread situation whereby all pre1996 targeted parishioners need to have moral responsibility and legal liabiltiy accepted by the relevant authorities at the time and now. Only then will the Church understand that this is not only a child issue but a power issue where spiritual authority has been trashed by some who turned it into sexual power over a range of people of a range of age.

Jennifer Herrick | 21 October 2014  

Thank you Frank.The Ellis case should have driven Pell to his knees in repentance.I have experienced the horrendous abuse and destruction of innocent children in my parish in the outer east of Melbourne, where (as archbishops) Pell and Hart sent successive pedophiles as late as 1992-2008, one having been reported by his own family to the church authorities prior to his relocation.The other, after being removed was given legal advice about offensive materials. This deliberate inaction and counter action has caused so much grief and anger,and further abuse and alienation as the church authorities fortified and removed themselves and dismissed the suffering of a faithful parish.It takes immeasurable strength to keep going to mass.These crimes of collaboration, covering and protecting criminals have deeply damaged and failed the faithful,and further silenced victims.The Vatican Church must repent,and also make effective changes if we are to ever truly reconcile. Why is this so hard for the 'well educated', well heeled Cardinals to see? Power corrupts ,absolute power corrupts absolutely> These men are not gods yet they act as though they are> above the Law.

Catherine | 21 October 2014  

Well put. I am not so sure about vicarious liability for the whole Church. Would the same criteria apply to other international agencies, such as, for example, the BBC, the UN for their individual and/or collective responsibility?

Tony | 21 October 2014  

A truly Christian take on this terrible dilemma, Fr Frank, which is characterised by the inability of anyone in a position of power, religious or otherwise, to do anything other than penalise, preferably by imposing individual imprisonment of offenders (which is of course essential in most cases) and dishing out large sums of money. The signature of Christ and his Christianity is singularly missing in most commentators on this terrible scourge - simply, the capacity for forgiveness. It is sad that the human being, in the tradition of that young English country lad, Billy Shakespeare, expressed en route to murdering Julius Caesar by a thespian Mark Anthony, has the capacity to remember "The evil that men do lives after them." and a greater shame that "The good is oft interred with their bones" It was refreshing that you have pointed out the good that Cardinal Pell did in this whole sorry saga, unlike the many non-Christian commentators who know nothing of Christ's forgiveness. To forgive does not imply that retribution is no longer necessary or that the bad should be forgotten.

john frawley | 21 October 2014  

'Church legally liable' ? Please elucidate what is meant by 'Church'. If there was a code of wilful ignoration of any defects in the Church or of misbehaviour by any of its officials, it was a code of conduct promoted by those in charge of governance of the Church, and blame cannot fairly be laid at the feet of the laity misled by this imposed code.

Robert Liddy | 21 October 2014  

Fr Frank Brennan is usually so clear a writer and speaker that one has no questions to ask of him. However, the last paragraph of this present article, in which he says we all should accept blame for clerical abuse of children, disperses the blame appropriate to those who control the "fortified, exclusive inner sanctum". Since when have the laity had any voice with which to break down that fortification? Since when have the "exclusive inner sanctum" even paid heed to righteous bishops like Bishop Bill Morris who wanted to delay his departure to allow time to ensure a just outcome for the child-abuse victims in his diocese? When were the voices of child victims, parents, teachers, school principals taken seriously enough to effectively take an abusing priest out of circulation? No, the Catholic Church is not a democracy and so the lay members of the Church, having no power, cannot retrospectively take any blame for this clerical abuse.

Ian Fraser | 21 October 2014  

Pell opened his statement at the RC calling victims 'enemies of the church'. He set his own tone for a war against survivors of his institutions and he responded. Frank Little did cover it all up in the 1970's and the evidence appeared in a County Court trial late last year - the first time a court accepted (Archdioces evidence) of a cover up in Melbourne directly involving Frank Little. The Survivors need to continue being 'enemies of the church' to enforce a clean up the church failed to do for itself and the congregation

Stuart | 21 October 2014  

Fair comment; after 1996 the Church was trying, albeit still imperfectly, to eradicate this serious problem which has caused it immense damage.

Ross Howard | 21 October 2014  

I would like to say I found the sweet voice of reason in this essay; but I cannot. First, its voice remains – like many such commentaries - that of the distant and detached observer with little reference to the victims and survivors of clergy sexual abuse. It’s not surprising, then, to find the first few responses are from those who have either experienced abuse or speak from the victim/survivor perspective. Second, the arbitrary construction of a pre-1996 (bad) and post-1996 (implied to be good) is not sustainable on the evidence that was presented to the Victorian Parliamentary Inquiry and the Royal Commission. Professor Brennan asserts: “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.” And who “bears the rap” for the mess that continues after 1996 when procedures are “hazy, porous and totally inadequate”? The fact as shown by the Inquiry and the Royal Commission is that Pell’s scheme, the Melbourne Response – like Towards Healing - has been a disaster for many claimants. And it continues to be a disaster. The Parliamentary Committee concluded that: Neither of the Catholic Church’s systems—the Melbourne Response or Towards Healing—provide for clear public acknowledgement of any wrongdoing by the alleged perpetrator, regardless of the circumstances. Only in recent months have senior representatives of the Catholic Church accepted responsibility for the Church’s failure to conduct its operations with due regard to the safety of children and the considerable trust placed in them by victims and their families. The amounts of compensation have been arbitrarily set and the individual awards bear no identifiable relationship to the nature and circumstances of the assaults, the personal situations of the victims or each other and all compensation has been offered as ex gratia payments on a ‘take it or leave it’ basis. (p 25-26) The Committee found that the Melbourne Response protocol was “flawed…and fraught with difficulty from the outset” (p 25). It can hardly be said that the scrutiny of cases by the Royal Commission has found that an age of enlightenment has appeared since 1996. Third, the commentary on George Pell’s role glosses over the real facts. For example: “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.” Further, “Before acting, Pell had discussions with Jeff Kennett, the Victorian premier…”. Pell’s own words in evidence to the Committee were: I was also summoned by the Premier at the time, who made it clear that if we did not clean the Church up, then he would…(p. 22) That doesn’t sound like discussion to me. It is reasonable to conclude that it is the political pressure brought about by victims and survivors, and particularly their very public testimony in recent years, that the Church has decided to respond in a more Christian way. The age of reform – if it can be found at all - dates not from 1996 but more likely 2013.

Frank Golding | 21 October 2014  

But but I appreciate Jennifer's point and her valid comments. Re the 'innocent priests and religious' 'wearing the responsibility', they are a body and not individuals. As members of religious orders, congregations and worse..'representatives of God' as in the case of individual priests, these are, in this situation, as part of a body, associated in the guilt as they would be associated in the good deeds of the body. However, here, the guilty are hiding behind the innocent..there's supposedly, less culpability and feeling of guilt in numbers.Its the done thing, Re The Ellis case.. the church only owns up when it is caught out, Money is no object to establishing innocence and protecting reputation. Contriteness is measured with more discrimination. Rhetoric is employed to appear to 'wear' the blame. Brennan states: "we" need to "wear the rap" This is only a proposal to admit guilt. Had he said "I will..: it would be an admission. of guilt. Here are the guilty including the innocent in the crime to mitigate culpability and to mimic contriteness. Matt Casey has fallen into the trap.

Robin Henders | 21 October 2014  

Frank, you conclude that “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.” That sounds fine to me if “we all as Church” had any involvement in the direction of the institution. When the institutional Church is structured, both the hierarchy and Canon Law, to ensure minimal “transparency and accountability”, on what basis can you suggest that we all should share the blame? Catholic clergy and laity who have been excluded from the decision making of the institutional Church have a moral responsibility to demand that the structures of the Church are made transparent and accountable. It seems that George Pell was part of a system that accepted that an auxiliary bishop was kept ignorant of the rape of children by priests for whom he was responsible, and Frank Little as Archbishop apparently felt constrained by the system to secretly protect those paedophile priests. This is the Church founded by Christ who specifically warned that anyone who “put a stumbling block before one of these little ones” would be better off being drowned “in the depth of the sea” (Matt 18:6). I agree with you that we must all “commit ourselves to transparency and accountability in the Church”, but to achieve this the views of the people of the Church need to be respected by the institution in its decision making, and that decision making must become transparent and accountable.

Peter Johnstone | 22 October 2014  

"and now we all as Church must accept the blame, " When Frank Brennan puts forward the position that somehow all of the people who constitute the church, are somehow responsible for the sexual abuse problem (and fixing its effects) , I sense Frank operating in the same arrogant clerical manner that he so vehemently criticises. Is it your role as a priest - dare I say one of the brotherhood of priests where much of this trouble has arisen - to disperse the responsibility and blame to the myriad of church-goers who exist outside of the clerical power structures that you inhabit? Culpability (and reparation) lies with those who sinned. From my Catholic education I have learned that conviction of sin comes through the Holy Spirit. It's not your place to tell us we are responsible for sins we had no responsibility for or knowledge of or power to address. This theory of corporate blame is something you have talked about a number of times. It is wrong, it hurts and confuses people and it needs challenging.

Cathy | 22 October 2014  

Fr Brenan says: "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... ... ... ... 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." Yes - the "top end of town" personnel were employed -in an egregious process where from 1996 to 2013 the Archdiocese of Melbourne spent $18.9 Milion on teh ae of victims and $17.0 million on legal and administrative costs. That is - for every $1.00 spent to assist victims, $0.90 was spent on legal and other administrative costs. Anyone who suggests that the Archdiocese's top priority was the care of victims will have a hard time justifying those ratios.

jim boyle | 22 October 2014  

At last a well balanced sensible article on this horrible subject. I am stunned by the comments of one contributor here, Neil De Cruz. The late Archbishop Frank Little does not deserve this comment. It is a fact that at least one convicted pedophile have been buried in the Priests Crypt, and perhaps there are others. Frank Little deserves his place in the Cathedral Crypt, he did his best surrounded by inept "advisors" who later laid too much blame at his feet after his death. May I suggest that Neil De Cruz does some research before making outlandish suggestions based on ill founded comments and media reports.

Therese Marley | 22 October 2014  

Thanks to those who have provided such detailed comments. On this difficult topic, there will always be those who question my motivation as a Catholic priest and there will be those who remain convinced that I lack compassion for victims. Nothing I say will change their minds about me, the Church or abuse issues. I accept that. Be assured, I hope and pray that this royal commission can help provide a safe environment for all children in Australia and some further healing and justice for those who have been victims of sexual abuse, especially those who were children violated by members of the Catholic Church in positions of trust. That is why I write on this issue. It is why I was one of the church people calling for some state intervention before the royal commission was established.

Some of us are at cross-purposes. By way of clarification, I will make seven points. Pardon my legal prolixity!

1. There are moral questions to consider and legal questions. By addressing the legal questions, we are not leaving morality and compassion at the door. But we are needing to enter the chamber of reason and legal analysis, before re-emerging and asking in moral terms what we should do and for what should we be responsible.

2. In law, the perpetrator is of course liable for his wrong (and it usually is a male). The bishop or superior is also liable if he (and it nearly always is a male) is negligent in relation to the perpetrator. That negligence will relate to the failure adequately to train, supervise, correct or suspend someone later proven to be a perpetrator. There may be circumstances in which the bishop or superior would be vicariously liable for the wrong committed by the perpetrator. Vicarious liability arises when the supervisor has NOT been in any way personally negligent, but when it is appropriate to hold the supervisor or the organisation responsible for the wrong committed because the wrong was committed as part of the enterprise to which the supervisor or organisation is committed. To date, the High Court of Australia in three decisions has said that vicarious liability does not usually attach to a school authority overseeing the activity of a teacher, even a teacher in a single teacher country school for primary school children. Since these High Court decisions, there have been developments in the law in the UK courts more in harmony with previous decisions in Canada which extend the range of vicarious liability.

3. In this article I am suggesting that regardless of what the High Court might decide in the future about vicarious liability, church authorities when sued for child sexual abuse prior to 1996 (and that is most of the present cases) should accept that they were negligent in their supervision of any perpetrator because, on the uncontested evidence of Cardinal Pell, there was prior to 1996 a system of training, appointment, supervision and dismissal of priests which was such a mess and so disregarding of the well being of children that there was no expectation that even an auxiliary bishop in an Archdiocese would be able to know or do anything to rectify abuse.

4. I readily concede that there were many of us church members, especially laity, who knew nothing and could do nothing about these issues at the time, in part because of the clericalism and lack of transparency in the church hierarchy. But, in justice, if a victim chooses to sue “the Church” for abuse by a priest or other church official, “the Church” ought provide the victim with a legal entity to sue, backed with the guarantee that the entity will be able to pay any judgment debt. The money will come from “Church funds” which will be money largely given by laity who knew and could do nothing about the committed and proven abuse. It is in that sense that I say that we, the Church, are responsible and should accept legal liability. Morally, we should accept collective responsibility as the local Church. I in no way want to suggest that this makes it the personal moral fault of unknowing laity. But from here on, we are all on notice that we have a right and a duty to call our hierarchy to account on this issue because in the end we do wear the rap collectively – morally and legally.

5. There will continue to be discussion at the royal commission about compensation and reparation schemes which spare victims the need to litigate their claims in court and which provide authorities (including churches) with greater certainty about financial liabilities for alleged but unproven or unadmitted claims of abuse. Everyone concedes that it is best that victims be spared having to prove that abuse occurred. But as a backdrop, there must always be recourse to the courts if a claim is disputed.

6. It is far too simplistic to claim that the Catholic Church in Australia did nothing prior to 1996 or prior to 2013 to deal with these issues. There is no doubt that the Australian Catholic Bishops Conference (ACBC) started addressing this issue seriously in 1988, seeking the best advice available nationally and internationally. The first makings of a national protocol were agreed to in 1992. This is the real significance of Cardinal Pell’s evidence. As a bishop, he attended the ACBC from 1987 onwards. From 1990, he was a member of the Congregation for the Doctrine of the Faith (CDF) regularly attending meetings in Rome, and thus presumably hearing details about the problems in Canada and the USA etc. Our now most promoted bishop was party to all these discussions for nine years but back home in his own diocese, he and his archbishop never discussed the issue and the particulars of local wrongdoing. He never sought to be brought into the loop with archdiocesan personnel charged with dealing with this mess and human tragedy. He was part of an institution, and was being constantly promoted in an institution, which did not put the interests of vulnerable children first. If it had, any auxiliary bishop, and especially a highly competent and favoured one, would have been across the local particulars seeking a better way. That did not happen until 1996. So prior to 1996, we must all collectively wear the rap. This is my sad conclusion from reading His Eminence’s evidence on the three occasions he has taken the oath on this issue.

7. I did not see a need to comment further on the Ellis case, given my previous writings. I have always said that Mr Ellis should have been provided with an entity to sue. Given that his admitted abuse occurred before 1996, the church should have admitted liability unless the Sydney Archdiocese were in a position to demonstrate that its pre-1996 monitoring arrangements were vastly superior to those at work in Melbourne and as attested by Cardinal Pell.

Frank Brennan | 22 October 2014  

Sad to see the standard 'It can't be our fault because we lacked the power to do anything' argument. Here in WA It is crystal clear that the impossibly high expectations a Catholic laity put on those running the CB institutions did contribute to the problem.We saw what we wanted to see. Granted we knew not what we did.But we still did it...

Margaret | 22 October 2014  

I think you'll find that the 'discussions' with former Victorian premier, Jeff Kennett, were more along the lines of Kennett telling Pell to clean up the mess or he would clean it up himself.

Kate Barton | 22 October 2014  

Father, I also share the weight of this awfulness on our collective consciences. Your suggestion to alleviate that is to use Church money to compensate the victims, albeit accepting that the money has come from laity who did not know of the abuse and even if they did know could do nothing about it. Clearly though, a great many who have contributed money to the Church (before and after 1996) would never have done so had they known of these abhorrent crimes, and that their money would be used to pay compensation for them. So if the Church authorities use the laity's money to pay compensation, they will have acquired that money under false pretences. For that reason and others, it would not be legal or ethical for what is effectively other peoples' money to be used to ease the consciences of some - even if they are the vast majority. The appropriate course is for those, the great majority, who accept the moral or legal requirement for compensation to contribute to a special fund for that purpose, out of their own pockets. That would be real atonement rather than a seeming gesture, and I expect generously supported.

Damian | 23 October 2014  

How do those who say this is a well balanced comment know that? To claim that the Church's efforts since 1996 have been well meaning and adequate enough to claim the Church is not liable without finding out what the victims who experienced those efforts have to say about them cannot be balanced. My experience was in a catholic primary school harmed by offender priests ten years apart one convicted in 2000 and one in 2009 for offences in 1994 and 2006. The response to both was disbelief, silence, cover up and ostracism for the victims and their families. When families and a teacher tried to speak to the Archbishop to complain he refused to meet with them. Stop acting as though 1996 made a difference. Just writing processes without providing adequate training of personnel, oversight and continual review is smoke and mirrors. Do you really mean that the students harmed by the first priest should receive different justice to the students harmed by the second? This is a church still thinking like lawyers when they should be thinking like Jesus himself. Stop! Listen to victims! Learn! Then you can claim a balanced view.

Pam Krstic | 23 October 2014  

Thanks for the acknowledgment and validation Robin. That 18 is not a magic number is a battle for recognition only just beginning.

Jennifer Herrick | 23 October 2014  

About two years ago I was present at a meeting at which a Bishop stated - 'our compensation payout is $9 million and climbing. There is no insurance cover because "we knew" ' Father Brennan, about the same time in a post to one of your uearlier articles in ES, I asked you to comment on the contribution of Canon Law to the cover-up problem. I did not see your response, if any. You might or might not be a Canon Lawyer but you give me the impression you can analyse any law. Before my post on 22October to this current article I searched the Vatican website to confirm the continued of the extracts I quoted. I will be interested to hear your comments. Thank you.

John Casey | 23 October 2014  

John Frawley, The only people in a position to forgive are the victims/survivors.

Peter Downie | 23 October 2014  

Frank, thanks for your further comments. I doubt if anyone would seriously accuse you of lack of compassion, but your analysis invites debate on a subject that needs the considered input of the people of the Church, lay and clerical, who would never have tolerated the institutional Church’s response to clerical child sexual abuse, if only they had known. As I said in my earlier post, Catholic laity and clergy, who have been excluded from the decision making of the institutional Church, now have a moral responsibility to demand that the structures of the Church are made transparent and accountable. Regardless of any questioning of the efficacy of Towards Healing and The Melbourne Response in supporting survivors of child sexual abuse, the fact is that the Church has not even admitted to shortcomings in its dysfunctional system of governance that allowed the cover-up and protection of paedophiles; nor apparently has it conducted any inquiry as to how its structures and practices could have allowed such immoral decision making. Without frank and regretful admissions and an overhaul of Church governance, the people of the Church can have no confidence in the Church’s ongoing decision making. The clerical child sexual abuse saga has demonstrated the awful consequences of institutional decision-making based on an autocratic self-protecting system lacking accountability and transparency. Thank God Pope Francis seems to show some signs of at least recognising the need for fundamental changes.

Peter Johnstone | 23 October 2014  

I respect Frank Brennan and his intellect greatly but I am, with due respect, unable to accept Frank Brennan's proposition that we all have to take responsibility for child sex abuse in the catholic church prior to 1996. The institutional church needs to take responsibility for this heinous crime to children, their families and parish/school communities. These sins of omission and commission both belong to the Church institutions and clergy, not with vulnerable children, families or their parish communities. How could it be otherwise?

mary tehan | 24 October 2014  

The Catholic Church is not a democracy hence it can never ask "all of us" to accept responsibility for morally flawed failure to act and decision- making by Church authorities. That responsibility lies with those within the "closed and opaque" realm of the Church leadership alone. There is no lay authority, therefore no lay decision-making, therefore no moral onus on the laity to "wear the rap".

Margaret Leahy | 24 October 2014  

As a victim (survivor) of sexual abuse while attending Christian Brothers in the 60's, at last we have someone stating the obvious that the church has never admitted to - acceptance of blame for what took place in all catholic institutions over the many years. While Pell may have done some things he did them in a way that he retained full control of procedures and of ultimate results. It is not only the actual act of sexual assult perpetrated, but the long lasting affect it has on a persons life that needs to be consider. How does one make up for all those lost years. Compensation must be revisited. Sorry is too hollow a word. I applaud Frank Brennan for his forthright honest assessment of this whole sorry mess, that for far too long has been covered up and treated as things that happened in the pass & we should get over it!! It is not that easy when it haunts you every day of your life. Time for a fair dinkum & honest address to this problem & time for many clergy to get do away with their "mental reservation" cover & take a long hard look at themselves and what they have been fostering for years because of their denial and head in the sand approach. Honesty, recognition, compassion and fair compensation.

John | 24 October 2014  

Taking moral and legal responsibility is a minimum requirement. The failure which distresses me and I doubt it has even been addressed now is how an institution entrusted with the care of children could so lose its way like this. How children could come to be seen a prey for men, priests whom they should be looking up to for spiritual and moral guidance. I find it hard to believe no-one saw anything.And if this is the case then it raises the question of whether all man educational institutions should ever be entrusted with the care of children. Such a sad day for the Church as I am sure is trying to clean up and write Protocols now at this late stage, none of the underlying problems and reasons for this abuse will be candidly addressed. Kathryn Rae

Kathryn Rae | 25 October 2014  

While I feel you have at least admitted that the church should take responsibility, it is the hierarchy that are those at the centre of this sorry, horrible mess. Your praise of Pell is one area of the article that is totally off beam. You only had to witness his appearance at the Vic Parliamentary Inquiry and The Royal Commission to assess that his interests lay with protecting the name of the church & protecting their wealth. We have a situation in Victoria where a teachers claims of bullying led to the ruination of his career and life. The responsible authorities accepted responsibility and he was compensated. Compare this to an innocent child whose trust is betrayed be a member of the religious. Is not their life ruined and do they not live with trauma each and every day of their life, never allowing them to live a full happy, complete life. The wider membership should not be expected to share the blame or responsibility. Why should they, when those in power never have. Sure a few sorrys here & there. Hollow!!!! I think you are delusional to believe Pell achieved anything positive. I correct myself. He achieved positive results for the institution of the church. Nothing positive for the victims - if anything he inflicted more grief on them. I hope the next article I read from you, is of the fact that the church accepts full responsibility for the atrocities inflicted and have agreed to be a legal entity (rather than hiding behind archaic Cannon Law) and is willing to make adequate and meaningful compensation. Sorrys are two bob a dozen!!!!!!! After 50 years of trauma, suffering and guilt, I can only hope.

John | 25 October 2014  

Damian, Your response is again in line with the hypocritical attitude of the church. Your whole article spoke about money and the conscience of the laity. Not once did you show any thought or compassion for the VICTIMS.;

John | 26 October 2014  

A good distillation of the Royal Commission’s learnings to date in Justice McClellan’s address at Parliament House this morning: ‘The societal norm that “children should be seen but not heard”, which prevailed for unknown decades, provided the opportunity for some adults to abuse the power which their relationship with the child gave them. When the required silence of the child was accompanied by an unquestioning belief by adults in the integrity of the carer for the child, be they youth worker, teacher, residential supervisor or cleric, the power imbalance was entrenched to the inevitable detriment of many children. When, amongst adults who are given the power, there are people with an impaired psycho-sexual development, a volatile mix is created. Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. Society’s values and mechanisms which were available to regulate and control aberrant behaviour failed.’

Frank Brennan SJ | 26 October 2014  

Societal norms?The Church has always proclaimed it is not going to reflect societal values. Sexual abuse occurs across society, but it has been hidden and dismissed, victims emphatically demonised and further abused,secretly within the Church, all the while The Church enjoying power,wealth and moral authority in society.. Organised corruption and criminality...Yes, I would suggest there was plenty of information/strong suspicion long ago. The old structures of patriarchy and royal absolutism decrees the laity as being of no voice.No question of authority.This is where the church upheld societal values, and used it when it suited them!! The only action was ongoing secrecy, closed doors,further protection of its own. It is so Shocking now there seems no difference in 21st century. Church moral authority is unquestionably destroyed as this MORTAL SIN,the deepest scourge, is continually skirted around to protect church name and property through legal expertise =$millions ( donations of the faithful).Shared responsibility? Only when the laity has a strong voice WITHIN church law there will be any shift to democractic values and responsibility.

Catherine | 27 October 2014  

Thank you Frank for your open and frank assessment of the situation regarding sexual abuse and the Church's handling of it. As I reflect on the impact this has had on the church today I can't help thinking that as the Church Triumphant that I grew us in as a child has now become the Church Broken and in need of healing and repentance. I accept this and pray that we will all unite to bring about the reign of God in the world today. Our younger members are the ones in need of open and just dialogue if they are to have any confidence in us. Thank God we have Pope Francis there as a leader and model to us all. Robyn

Robyn McNamara RSJ | 27 October 2014  

How wide is "we"? Cardinal Pell was certainly not the only one kept in the dark in those days. I know from personal experience that within religious orders, there was shunting around of sex abusers (members or hired staff), with one school run by the order not letting its sister school know of the offender's history! Beyond the Church, there is societal denial. Other Christian bodies have been found equally complicit. Moreover, the Jewish religion, for example, is facing its own demons in this area. Beyond religion: the record of secular institutions is grim indeed. Not only orphanages: Even the ABC and the BBC. Beyond THAT - massive sex abuse is occurring in, eg, remote aboriginal communities today! Why is that not continually front and centre? Then there's, eg, Hollywood. It's entirely just to trawl through historical sex abuse and point fingers. But when current spaces this appalling evil occupies are not equally exorcised, one begins to suspect that for many today the issue is not, in the end, the intrinsic evil of child sex abuse.

HH | 31 October 2014  

"...we need to wear the rap for everything that went on before 1996" We? Who is "we"? The rap for "everything"? Nope! Please don't co-opt me into YOUR personal guilt or sense of culpability. There are are only three possible culprits in this disgrace. 1. The parent or legal guardian who failed their duty of care to protect children. 2. The fake 'priest' (probably a closet atheist) who exploits the opportunity to attack unprotected children. 3. The individual, identifiable members of any hierarchical organisation who felt that a cover-up was a justifiable means to an end.

Lion IRC | 01 November 2014  

No amount of sophistry and spin can deny the growing evidence of horrendous abuse meted out by a sizeable number of clergy for which the catholic church as "corporation "must take or be forced to take responsibilty.The church's failure to deal with this endemic problem ( because it turned a blind eye )has caused the suffering to escalate perhaps exponentially .It is a fundamental and despicable derilection of its duty of care in favour of its own self interest. A conspiracy ,a coverup. So much for the power of Christs message in the hands of its promoters. "I did not know, I did not see, I dont remember" will not cut it. They sound lame hollow lacking the ring of truth and sincerity. If the catholic church had any sense of corporate governance the board would have resigned long ago the administrators called in and it declared morally bankrupt .And its assets realized to fund a compensation scheme. But clearly there is no will within the organization for such action. I suspect that a radical reformation within would be required , but I see only entrenched self servitude supported by a closed belief system not capable of seeing itself from the outside managing itself or able to comprehend the pain inflicted and the damage done by its own representatives. If it wasnt so tragic it would be laughable JohnM

john murphy | 21 May 2015  

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