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Victoria's path to child sex abuse prosecution


Abuse Inquiry Cover

Will the recommendations of Victoria's parliamentary inquiry into the sexual abuse of children in non-government institutions be overshadowed by the proceedings of the Royal Commission that is now under way? Probably, but it doesn't matter. The first thing to be said about the Victorian inquiry, which tabled its report, Betrayal of Trust, in the state's parliament today (13 November 2013), is that the MPs have done a far better job than many people — including this writer — had expected them to do in the relatively short time allotted to them, and without the resources available to the commission.

The inquiry's recommendations are, with one important exception, carefully considered responses to the evidence the bipartisan committee received from 405 written submissions and in more than 160 hearings. Apart from the exception, of which more later, the Napthine Government should implement these recommendations and, if they are later subsumed under all-state legislation recommended by the Royal Commission, that will not render them pointless. They will have been a model and a guide in dealing with a problem that all forms of institutionalised authority — not only the churches — have preferred to avoid dealing with openly for far too long.

That is not to say, of course, that the sexual abuse of children has ever been condoned, let alone treated as less than a serious offence under criminal law. As the inquiry's report notes, buggery of children under 14 and rape were capital crimes until 1949. But that official abhorrence makes all the more lamentable the fact that until the early 1990s abuse happened extensively in non-government institutions, especially the churches, and that perpetrators were typically redeployed rather than being suspended from their duties and the police notified.

And the biggest adherents to this practice of routine concealment were Catholic bishops and major superiors, just as Catholic priests and religious were proportionately far more numerous among the ranks of perpetrators than were those who worked in other non-government institutions. The figure has been cited before but is worth repeating: Patrick Parkinson, professor of law at the University of Sydney and formerly a consultant to Towards Healing, the Church's national pastoral response to victims of clerical sexual abuse, estimated in his evidence to the inquiry that Catholic clerics and religious outnumbered other institutional perpetrators by six to one.

If the Catholic Church is so frequently mentioned in Betrayal of Trust, therefore, Catholics and their clerical leaders can hardly complain. It simply reflects the evidence: among the churches scrutinised by the committee, only the Salvation Army has an even remotely comparable record of abuse in its institutions. Nor is it sufficient response to say that this is because the Church is so heavily committed to schools and to the provision of welfare services for families and children, becoming thereby a magnet to potential abusers.

The crucial question is why these institutions fostered a culture of secrecy with regard to abuse, and in asking that question and essaying an answer to it the Victorian inquiry is surely a harbinger of the Royal Commission. Expect to hear much more about the relationship between clerical power and secrecy, and about the role of celibacy, on which topic Betrayal of Trust offers observations that, though tentative and exploratory, are neither crass nor naïve. Abuse is not deemed to be a product of sexual frustration, but the report does ask whether there is a link between celibacy and the pervasive clericalism of the Catholic Church.

So what about the inquiry's recommendations? The most important of them makes for easier prosecution of those who fail to report a serious indictable offence involving the abuse of a child. Under section 326 of Victoria's Crimes Act, it must be proved that a person who conceals a serious indictable offence received a benefit, and the committee recommends that this 'element of 'gain' should be removed'.

This is paired with a recommendation that a new offence of child endangerment be created, where 'a person gives responsibility to another for the care of children and is aware there is a risk of harm to those children and who fails to take reasonable steps to protect them from that risk'. There will no doubt be lawyerly argument about what being 'aware there is a risk of harm' means and how failing 'to take reasonable steps' should be defined, but both these recommendations should be implemented. The core of the sexual-abuse crisis has been the failures of those in authority, and the state should make it as difficult as possible for such failures to be repeated.

As Betrayal of Trust notes: 'No representative of the Catholic Church directly reported the criminal conduct of its members to police. The committee found that there is simply no justification for this position.'

Other recommendations that would make it easier for abuse victims to obtain legal redress should also be implemented: excluding child abuse from the statute of limitations; requiring NGOs in receipt of public funds or tax exemptions to be incorporated and adequately insured; and holding these organisations to be vicariously liable for acts committed by 'agents, representatives or volunteers' deemed to be their employees.

And, although the Church has offered the pastoral processes of Towards Healing and the Melbourne Response as alternatives to the civil justice system, it must be accepted that many victims will doubt whether an internal ecclesiastical process can ever be genuinely independent. The committee is right, therefore, to recommend that the powers of the Victims of Crime Assistance Tribunal should be broadened so that those who for practical, including financial, reasons cannot seek redress in the courts can be assured of independent resolution of claims.

More dubious than any of the foregoing, however, is the committee's recommendation that another new offence of 'grooming' be created, which would not require a substantive offence of sexual abuse to have been committed. There is no doubt that the grooming of intended victims, especially with the new opportunities for abusers that have arisen in the age of the internet, is an insidious activity. But it amounts to the cultivation of friendship with an intended victim, and often with the victim's family, too.

What makes this a process of grooming other than the committing of a substantive offence? And how easily could it be distinguished from acceptable conduct by teachers, clergy and youth workers? In some cases the danger signals would be real and apparent early, but in others well-intentioned behaviour might easily be misunderstood. The committee's desire to find a legislative remedy for grooming is understandable, but it is difficult to see how such a law could be drafted without running too great a risk of prosecuting the innocent with the guilty.


Ray Cassin headshotRay Cassin is a contributing editor.

Topic tags: parliamentary inquiry, clergy sex abuse, Catholic Church, vicariously liability, Royal Commission



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Existing comments

But has the hierarchy got the message yet? Apparently not when Archbishop Hart's response is that 'further consultations were required BEFORE THE CHURCH COULD AGREE [my emphasis] to full incorporation, which would make it easier for victims to sue for compensation' implying that he still wants to put the protection of the Church's assets before the rights of the Church's victims.

Ginger Meggs | 13 November 2013  

Grooming - My father was a real pied piper with the local children. The youngster next door used to call out from his cot near the window to say goodnight to Mr Bill; as he walked home from the bus each evening he would often be accompanied by the younsters from the houses on the way. On Saturday mornings these children would follow him up and down the back yard as he pushed his hand mower. I would be aghast if anyone imagined he could be grooming his little admirers! It takes discernment to recognise the difference between real interest in children and ......

Patricia Ryan | 14 November 2013  

Now we wait for Cardinal Pell's response to "Betrayal of Trust". This will indicate whether the Catholic Church Hierarchy fully accepts its responsibility for the appalling treatment of so many innocent children. It is no longer acceptable to hide behind the anonymity of confession, nor is the "I know nothing " plea.

Pearson | 14 November 2013  

Thank you Ray for a thoughtful and strong piece. Surely the Church will now examine itself and the significant part its structures, leaders and culture have contributed to the abomination that is child abuse. My only concern is around the concept of grooming. Such legislation could further damage the relationships between children and the vast majority of adults who love children and would never do anything to harm them. I worry particularly for educators.

Martin Loney | 14 November 2013  

Perhaps Cardinal Pell won't make any more substantial a response than Archbishop Hart. After all, he's the Archbishop of Sydney, which doesn't come under the Victorian Inquiry. He's not Archbishop Hart's 'superior'. We may have to wait for the Royal Commission.... I agree with all you say, Ray. I do think there's a great opportunity here, but the new legislation will need to be very carefully drafted if the result is to be good law. I also hope the demand for incorporation doesn't put additional burdens on small secular organizations that already struggle with the administrative paperwork necessary to carry out their service. Drawing up deeds of incorporation takes a lot of skill, time and personnel resources, so these groups will need to be supported through the process.

Joan Seymour | 14 November 2013  

Diarmaid Ferriter, (2009; Occasions of Sin, London: Profile Books). an expert witness to the Irish Ryan Commission identified the practice of using internal Canon Law Courts in the 1930s in Ireland to address criminal actions of Christian Brothers when the authorities were required to inform Police of such evidence. I cannot agree that celibacy is the major root cause for child sexual assault - a more plausible explanation is found in a socio-cultural / pro-feminist analysis of such violence ie power and control and the concept of "restraining beliefs" (cf Alan Jenkins (1990) Invitation to Responsibility, Dulwich Press). The Qld government has recently introduced changes to its criminal code to include grooming after the gross failure of the justice system in R. v Rose (2009) (cf. David Field "Keeping Incest in the family" http://epublications.bond.edu.au/law_pubs/336/ ) I want to give them credit for trying. Hopefully when the combined minds of Australia are focused through the Royal Commission & other similar processes we can offer the next generation of children greater safety than ever before. I appreciated your article Ray. I've been waiting 51 years for this issue to be front and centre of our national debate!!

Mick Devlin | 15 November 2013  

The recommendations to require NGOs in receipt of public funds or tax exemptions to be incorporated and holding these organisations to be vicariously liable for acts committed by 'agents, representatives or volunteers' are a complete nonsense. What about the freedom of association? The law relating to unincorporated associations applies to all manner of associations. The proposal aims ultimately to make the ‘Church’ (whatever that means) liable for all acts of perpetrators, and effectively overturn orthodox law. The complexity and variety of church organisations providing services (religious, education, health etc services) makes it absurd to attempt to make the ‘Church’ a universal defendant to any claim for legal redress. Where is the right to a fair trial in all this? It is contrary to common sense and basic principles of justice that legislation would allow a body to be held liable where it had no involvement with the appointment and supervision of the perpetrator of abuse or any responsibility for or knowledge about the circumstances in which the abuse occurred. The separation of Church and State is also an issue in all this.

Georgie | 15 November 2013  

Dear Ray, please ask Francis Sullivan (the CEO of the Truth Justice and Healing Council Church - mouthpiece for the Royal Commission) to make a comment on your article. He is always looking for fresh new ideas to set new directions.

Michael Bowen | 15 November 2013  

Has anything changed? I have been seeking support from church groups/leaders to distribute a survey I am doing for a research project into clerical sexual misconduct involving ADULTS and being told by most (if I get a reply) that what I am asking is 'inappropriate'. Why? Why would church leaders/groups openly asking people who have been on the receiving end of, if not criminal offences, then at least offences against church/Jesus' teachings, to do a survey, why is that "inappropriate"? If this is about one cleric protecting another offending cleric for reasons of 'pastoral brotherhood', over and above the ministering to and a sense of what should be an equal brother/sisterhood of their victim, would this not be clericalism at its worst? Does it also not suggest that an offending cleric is a 'more equal' member of the church, than an offended-against lay person or even other cleric? Is this not the very approach that has now ended in inquiries, royal commissions? The fact that the church is not ACTIVELY SEEKING out victims, for their support and healing, putting them first, as the commission and inquiries are doing, has not this been the root of the problem IN THE PAST?

Stephen | 15 November 2013  

I have not read the Victorian Inquiry Report but consider it likely incorporation would only be useful if all assets are held within the "Church" corporation and accessible, ie not held elsewhere in other corporations or trusts. On another point, I think there are further victims, generations of innocent Catholics who paid their dues and supported their clergy to the limit, this compromised institution needs find the funds for abuse victims, not the congregations.

Pilgrim12 | 21 November 2013  

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