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Church abuse protocol is no joke


Apology cover It is very gratifying that Pope Benedict took the opportunity of his World Youth Day visit to apologise to the victims of sexual abuse by clergy and other church personnel. He ended his visit by celebrating mass with some victims, having already made his own courageous decision to say sorry for the pain and suffering endured.

His apology was heartfelt and included a clear directive to the local church to extend compassion, care and justice to the victims.

During his visit, some persons expressed dissatisfaction with the Catholic Church's protocol Towards Healing, which sets out the principles and procedures for the Church response to complaints of abuse against Church personnel. Father Chris Riley went so far as to label it 'a joke', with the perpetrators being the only winners.

I beg to differ. Towards Healing, established in 1996 and revised in 2000, is continually reviewed. There may well be defects in the protocol's application by some church authorities. But it would be a disaster for victims of abuse if the church were to dismantle Towards Healing leaving victims to rely solely on the civil law. The protocol and its application need to be assessed against the backdrop of Australian law.

Sexual abuse of a child by an adult is always a serious criminal offence. The perpetrator is not only criminally responsible but also civilly liable for damage caused to the victim. If the perpetrator is employed in a situation involving regular contact with children, the victim might want to sue the employer as well as the perpetrator.

In 2003, the High Court of Australia decided three cases on the liability of the State for sexual abuse of students by state school teachers. The court decided that state education authorities are not liable for the wrongs of these teachers unless the authorities themselves have been at fault. Chief Justice Gleeson said:

The legal responsibilities of such an authority include a duty to take reasonable care for the safety of pupils. There may be cases in which sexual abuse is related to a failure to take such care. A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil.

The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal. Breach of that duty, and consequent harm, will result in liability for damages for negligence.

Following this reasoning, a Church could be liable for the negligence of (say) a bishop who failed adequately to screen or supervise a Church worker or to investigate thoroughly any complaints made about a worker. If there was no evidence of negligence in recruitment or supervision, the Church would not be directly liable for the wrong committed by the worker.

In law, an employer could still be vicariously liable for the damage caused by a worker committing a criminal act if the act occurred in the course of employment. When dealing with this vicarious liability, Chief Justice Gleeson observed that 'where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment'.

In one of the cases considered by the Court, not even abuse by a teacher of primary school students in a one-teacher country school entailed vicarious liability of the teaching authority.

In most cases, churches like other employers and service providers are unlikely to be civilly liable for the criminal abuse committed by their workers provided the workers have been properly supervised at all times. In Australia, the victims of sexual abuse are unlikely to succeed in court against anyone but the perpetrator or against a callously negligent employer or supervisor who had little regard for the signs that there may be a sexual predator in their midst. There are many hurdles for a victim wanting to sue anyone but the criminal perpetrator.

A victim faces one additional hurdle when suing for abuse by a priest or other church personnel. Often the alleged abuse will have occurred many years ago and now there is a new supervising bishop or superior. The previous bishop or superior may even have died. Who is to be sued?

In 2007, the New South Wales Court of Appeal clarified that in the case of the Catholic Church, there was no point in trying to sue the 'Trustees of the Roman Catholic Church', the statutory trust corporation that holds title to all the church lands of a diocese. That corporation may hold the assets but it does not supervise, employ or oversee clergy or other church workers.

The Church should not give any appearance of hiding behind the corporate veil. Justice demands that present church leaders agree to satisfy any judgment debt against their predecessors or their deceased predecessors' estates when there is an allegation of past failure to supervise or adequately investigate a sexual predator in the ranks. Any damages should be paid from church assets.

The Towards Healing protocol is not a substitute for criminal prosecution of sex abusers. Nor is it a cheap alternative to civil liability for damages. It is a procedure available by choice to victims in addition to criminal prosecution of perpetrators or pursuit of civil damages for negligence by church authorities. Whenever a complaint concerns an alleged crime, the protocol states that 'the Church has a strong preference that the allegation be referred to police and, if desired, the complainant will be assisted to do this'.

Many victims of abuse have been helped by this professionally administered protocol. The church and victims would be worse off without this additional path to compassion, care and justice.

Full text of Pope Benedict's apology to sex abuse victims (ABC News)

Frank BrennanFrank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University and Professorial Visiting Fellow, Faculty of Law, University of NSW.


Topic tags: Frank Brennan, father chris riley, towards healing, civil liability, clergy sexual abuse



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Existing comments

Welcome though it certainly was,the papal apology could hardly or properly described as 'courageous'.Indeed, it was an expectation of the whole Australian nation and the Pope himself had signalled his intention of providing an apology before he even flew out of Rome.

A huge flaw in the Pell-designed 'Towards Healing' process is the cardinal's arbitrary decision to cap compensation.

Fr Brennan would surely appreciate the irony of a defendant in court seeking to have his penalty capped...indeed, he'd probably attract a further penalty for contempt!

Compensation should not be a matter of what suits the defendant's budget...and it certainly doesn't in the whole realm of justice where, often, the financial burden might be quite crushing, regardless of one's ability to pay.

Rightly, Fr Brennan argues that the church "should not give any appearance of hiding behind the corporate veil".

But the sad reality is that it does.

Neither should it use its huge wealth and the array of eminent legal counsel it has at its disposal to drag out proceedings...as it did for eight long years in the case of the Foster family whose two daughters had been raped as schoolchildren, with one turning to alcohol in later life and thus dreadfully injured in an accident, and the other committing suicide earlier this year.

No, in the face of such horror, and one that galvanised all of Australia that learned of that story all of last week....there was certainly no courage needed by the Pope to apologise for such cases.Indeed, Frank, the Pope used the most appropriate word...."shame".

As someone else al;so pointed out, while the Australian bishops have apologised for sexual abuse by the clergy in the past, the perception has been that they've apologised only for the offender...not seeing that any blame attached to themselves.

Brian Haill | 22 July 2008  

I think our Notre Dame University Ethics & Law Professor, Fr Frank Brennan has done an outstanding job in explaining what the Bishops have obviously not been able to explain, not only over these past few weeks, but over the past few years.

Congratulations Fr Frank.

Perhaps the Bishops need to show more confidence in you and less in their own ability to 'bluff things through,' and appoint you as a spokesperson in such matters - not in the case of individual cases, which sadly, seem to be stage managed by certain media interests (Syd Morn Herald and some sections of the ABC), but in an overall plan to continue rebuilding trust with the entire Australian community, that the Catholic Church is, overall, worthy of such trust and that sadly and tragically for a few people who have been the victims of criminal assault and morally reprehensible inappropriate behaviour - in the cases of adult to adult sexual misbehaviour, that such incidents are not an indictment on all priests and even the Ordained Priesthood of the Catholic Church.

A little sad though that this article and maybe Fr Frank's availability as a spokesperson on these issues was not in circulation over the last couple of weeks.

Fr Mick Mac Andrew Bombala-Delegate NSW | 22 July 2008  

I have been hearing for a long time that folk who go through the Church's Towards Healing program have, at the end of that process, to make a signed promise not to pursue anything in the courts. Is that true? If so, what difference does it make to your article's message.

jim marshall | 22 July 2008  

There is no cap on payments under the "Towards Healing" protocol. The Melbourne Archdiocese stands alone with its own set of procedures with a $50,000 cap. I have previously expressed the view that such a cap is no longer appropriate.

Frank Brennan SJ | 22 July 2008  

Frank Brennan says: "The Church should not give any appearance of hiding behind the corporate veil." And I thoroughly agree.

But even yesterday, the Church corporately selected four anonymous 'victims' who, they said, represented all victims of clergy sexual abuse. What a farce!

We can only presume that these anonymous victims would have been so totally satisfied with the 'Towards Healing' process (or the Melbourne alternative) that they could be relied upon to go quietly.

In what sense - except in the Church's corporate mentality - could they represent all victims? How could the Church be so foolish as to think they could get away with this charade?

Frank Golding | 22 July 2008  

Just a note to Mick McAndrew: Frank Brennan is no longer professor at Notre Dame, but at Australian Catholic University, as indicated in his byline.

Neil Ormerod | 22 July 2008  

Thank you, Frank, for once again showing the value of an educated mind that can clearly state the case as it is. Yesterday's Radio National Breakfast program allowed seriously flawed comment by a supposed lawyer about the Towards Healing process that were patently inaccurate if not deliberately false. The person had obviously not read the document closely.
You are right to sheet home any shortcomings to the application of the final decisions regarding the outcomes of the process to the individual Church authority, and the more the process is put under scrutiny the less these people will be able to make judgements lacking in compassion or fairness. As I wrote to the ABC yesterday and to this site, it is the best system we have and we should continue to take advice from victims about how best to improve it.
Th eother side of the coin is that every individual and 'corporate body' for that matter has the right to defend itself against fraudulent claims and to do this in a way that is just to those accused as wel as fair to those making the accusations.
This having been said, it is the best system we have and in many cases fairer than the court system.

Shane Wood | 22 July 2008  

Excellent though Frank Brennan's 'explanation' is, especially in terms of the comparison with the state education system, I am left troubled by it.The simple truth is that issues of sexual abuse in church schools or other institutions involve a breach of trust whose magnitude cannot be measured.Both Bishop Fisher and Fr Brennan seem to me not fully to grasp this.I have never before been so tempted to accept the caricature of the 'blindness' of a celibate clergy.

Margaret | 22 July 2008  

Thank you Frank. You so often agree with me. Am I correct in pointing out to Brian Haill that "Towards Healing", which is not capped, was designed by Bishop Robinson, not Archbishop Pell, but that the Melbourne protocol, which is capped, was brought in while Archbishop Pell was Archbishop of Melbourne?

Alan Hogan | 22 July 2008  

There are, I think, two problems with Fr Brennan’s position. The first is that the church seeks to place itself in a position of moral authority, the arbiter of what is right. This is very often dramatically different to what is allowed at law. The law does not hold up the ideal in behaviour - this is the role of leadership in our communities.

The second problem is in comparing the role of cardinals and priests to that of employees. The Pope did not come to Sydney as the employed CEO of the catholic corporation, he came here as God’s man on earth, an integral part of the life and body of the church. Is it possible for a parishioner to see a priest as the voice of God in the confessional and a salaried officer outside? I don’t think so, one is either an arm of God, or not.

Fr Brennan’s approach creates confusion in my mind about who the modern church is seeking to be and it is about time that Cardinal Pell took advice about what is right rather than what he can get away with.

Peter Mathie | 22 July 2008  

Thank you to Frank Brennan for the clarity in his article. Hopefully all in the Church will heed his words. I am on record almost ad nauseum re the criminality of sexual abuse and the need for civil intervention as well as Church intervention. We could all heed the words of BenedictXVI too with regard to compassion for the victims.
Rosemary Keenan

Rosemary Keenan | 22 July 2008  

To Neil Ormerod
Thanks for the correction about Fr Frank being a prfessor at ACU and no longer at Notre Dame.But you never know Neil, he may not stay long at ACU either, now that there is a vacancy on the High Court benches, 'like father like son' and I'm sure he would be across political hues as well, making him a very good choice to Kevin Rudd's vision.

Fr Mick Mac Andrew Bombala-Delegate NSW | 22 July 2008  

Jim Marshall has brought up a point about the protocolTowards Healing. The protocol states clearly that people ought to take their case to the police for investigation. But if they wish not to go to the police they sign the protocol indicating that they are not going to do so.

Fr gary Walker | 22 July 2008  

As Frank Brennan would know more than most, needless and deliberately prolonged legal action leads not Towards Healing, but, rather, towards bankruptcy.That's why the Towards Healing process needs a determined and realistic shakeup or be consigned towards oblivion.

A young man just recently broke off his action against the church because the church had spent so much money on topline lawyers that he was warned that further action could mean he'd have to sell his home to keep going.

Indeed, indeed, justice must be seen to be done and where most transparently than within the church?

That cannot be said to be the case at the moment...and a careful study of the Pope's comments on this matter during his Australian visit very clearly signal that.

But, now that he's gone......will it again be just a matter of out of sight,out of mind?

Brian Haill | 22 July 2008  

Further to Fr Gary Walker's comments:
The Towards Healing process asks for a signed statement when a person decides that they will not at that stage take the matter to the police even though they have been advised that this is their right. This covers the 'investigator' agaist accusations that this was not made clear to the victim. The victim can, of course, have a change of heart at any stage in the process, and take the matter to the police or the courts, in which case the church process is suspended pending the outcome of the legal process.

Shane Wood | 22 July 2008  

I didn't know that there is a cap on payouts to victims of abuse in Cardinal Pell's 'Towards Healing' protocol, until I had read Brian Haill's comments. Doesn't such a cap represent an extreme provocation for victims and their families to sue?

Claude Rigney | 22 July 2008  

Fr Frank's article reminds me of a wise priest who many years ago told my husband he wished for God's mercy rather than his justice. Both victims and perpetrators are much in need of that mercy. I suspect this is what victims are really seeking. The hurt will never go away completely but the destructive aspects of it need to be addressed in some way to allow a future.

Margaret McDonald | 22 July 2008  

It might be worth noting that the some lengthy legal proceedings might flow not from the church's obstinacy by definition but from the necessity to presume that not all complainants are genuine and/or that not all settlements sought are reasonable. I did not take much pride in Cardinal Pell's almost legalistic dissembling in the face of the Lateline onslaught but maybe he needs to be careful about removing $3 million of church money from schools or hospitals to compensate for an admittedly appalling but adult encounter.
A decision by the church to be unguarded and presume the best of all complainants cannot be taken without consequences. Frank Brennan's point that the church as an employer is not necessarily legally liable for the actions of its employees may be right but from the point of view of a victim, his family and the public, the victim has been violated by the church. If we take pride in the work of nuns and priests everywhere with the sick and the poor and the young, we probably have to accept shame at the uglier outcomes caused by these, our 'employees'.

Andrew Coorey | 22 July 2008  

Jim Marshall asks about victims who have been through the Towards Healing process having to “make a signed promise not to pursue anything in the courts”. There are two documents a victim may be asked to sign.

When the complaint concerns an alleged crime and the victim still insists on using Towards Healing, the victim is asked to sign an acknowledgement that they have been encouraged to take the matter to the police and that they have decided not to do so.

Then if a complaint has been processed completely with agreed provision of counselling and compensation, the victim can be asked to sign a deed of release, but only after they have sought their own legal advice. Such a deed precludes future civil litigation regarding the complaint which has been resolved to the mutual satisfaction of the parties. It does not preclude future criminal prosecution.

It is worth noting that there is no confidentiality clause included in deeds of release under Towards Healing.

Frank Brennan SJ | 22 July 2008  

Thank you Father Frank for your clear and concise explanation.

As someone who has been through the Towards Healing process let me say that I found the response of the persons involved to be very healing indeed. I could have taken the step of going to the police about these events and was told quite clearly that I could do that.

I chose not to for personal reasons. As have some other victims I know. I was compensated as it happened but I had not set out to make my complaint for that reason but in order to take a serial predator out of the system.

MaryM | 22 July 2008  

Today’s scripture reflection from the US Bishops’ Office finishes with a quote from St Paul, ‘If we have grown into union with him through a death like his, we shall also be united with him in the resurrection,' (Rom 6,3-5).

It made me think of the re-enactment of the passion of Jesus during WYD... How ironic that as this was being acted out through the streets of Sydney, the Fosters carrying the suffering of their daughters’ abuse were again being put through their own passion and death at the hands of the official church.

While Frank Brennan puts a good case for Towards Healing when there is no recourse via the courts, the fact remains that victims who go outside this process regularly get better compensation. They just need a special determination, expertise and good contacts.

While Towards Healing leaves the final decision making to bishops and heads of orders, while neither victims nor their families have a say in administraton of the process, it remains essentially flawed.

It is fine for the Pope to apologise and call for justice for the victims and their families but the Church will only be seen to be just when leaders and administrators who cover up abuse are removed from office and not rewarded like Cardinal Law from Boston.

Jesus managed a resurrection in three days. So far the Fosters have endured more than eight years without resurrection. I pray that the Fosters and many victims and their families, can see some glimpses of the resurrection in this life as well as the next.

Garry Eastman | 22 July 2008  

Thank you Frank for an informative article.

Shane Wood writes,"(Towards Healing) is the best system we have and in many cases fairer than the court system." While this may be true, it is only so in the context of the pursuit of justice within the church in which the people have no power or authority in matters and involvement in systems concerning their governance. Only the heirarchy and clergy have power and authority. The people can act only within these.

Until the people have power to protect their rights and freedoms and to pursue avenues to obtain justice in all instances of abuse of whatever type no system can be said to be satisfactory.

Towards Healing is the only church system available to victims. As satisfactory as it might seem, and is to some, it should not lull anyone into accepting that all is right. A victim without power to pursue justice in his/her own right remains a victim.

George Wyer | 22 July 2008  

Given Fr Brennan's role as Professor of Law at the Australian Catholic University and Professorial Visiting Fellow at the University of NSW...and (thus)the range of both resources and time available to him herein, it seems to me he is ideally placed to look beyond the opinion of the NSW Court of Appeal that determined, in 2007, that there was no point in trying to sue the church through its Trustees Corporation because it doesn't supervise, employ or oversee clergy or other church workers.

This is a challenge I'd urge Fr Brennan to take up. The church simply can't say, in effect, it doesn't exist as a legal entity.

The priest receives the sacrament of Holy Orders and this is not taken to be read as a contract with a statutory corporation.

Given too that Fr Brennan openly revels in the charge by one politician that he's a "meddlesome priest"...what a golden opportunity he has here to be really meddlesome and really pierce through the 'corporate veil', which he's labelled as such.

Brian Haill | 23 July 2008  

1. California perspective:civil law acted to protect church assets from 'pay outs
a]to protect the poor in church refuges
b]to protect the sick in church hospitals
c]to protect the education of young in catholic schools
d]to protect church welfare agencies[eg counselling and other social services-such assets were part of the move of church and state for the common good while perpetrators headed off on holidays o/s and las Vegas
2.the apostolic signatura asserted that protection of victims rights etc were all there in canon law
a]eg the holy see had no statute of limitations on paedophile priests unlike civil law[5 years etc]
b]problems occurred at diocesan usa levels because few canonists were competent to deal with the laborious penal process in an evolving canon law re pedophilia-thus canonists and civil advised a rehabilitation process[psychiatry-a total disaster
c]usa bishops reluctant to follow detailed canonical penal process as were canonists cos rome was rightly a stickler for process[thus bishops opted for rehabilitation
d]bishops were ignorant understandably of the evolving 'hands on' approach of their own canonical ability to deal with offenders in administrative fashion or informatae conscientiae-for fear of not getting things canonically right -with reversal by experts in rome[acting in authentic justice for priests wrongly accused
While i agree that we dont undo fallible towards healing-we have much to learn from usa before the dallas accord

Father John George [randwick NSW] | 23 July 2008  

I agree with so much of what is being said here. However, I do wish there could be a clearer understanding of "Towards Healing" and the way it was drawn up and is practised.

As several correspondents keep saying, it was not drawn up by Cardinal Pell. In fact, he chose not to implement it in the Archdiocese of Melbourne when he was there.

It's absolutely ironic that in commenting negatively on Cardinal Pell's processes, critics so often attribute "Towards Healing" to him. Quite frequently those critics don't seem to have read it. It hasn't been discredited, nor should it be.

Please let's get the facts about it straight - no cap, no signed promises - before we condemn it.

Thank you, MaryM, for your contribution, a powerful one from someone who's been there.

Joan Seymour | 23 July 2008  

On reading the feedback to Fr Brennan's article, I formed the impression that a lot of people are making judgments without having read the protocol. A copy may be seen in PDF format here.

As my Chief Justice used to say, "When all else fails, why not read the legislation?"

Alan Hogan | 24 July 2008  

Thanks to you Fr. Frank and to those who commented, for enlightenment. The agony that the breaches of trust caused, not only the victims but all members of the Church is screaming through the lines of these comments. Remedial measures must and have been taken. It is excellent that Towards Healing is constantly under review and that this is in consultation with victims. There is talk in the comments of compensation and sackings of Bishops and there are numerous recriminations. But I agree with Margaret McDonald that the pain "will never go away completely". Then where do we go? To the Lord of course - to seek solace, to pray for others at fault and to examine our own hearts.

Paul Jurd | 24 July 2008  

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