Leveson Inquiry: An important address by the lawyer on behalf of victims... (Main Forum)

Brian,

Thanks for this reference to Sherbourne's address. There were a number of similarities that struck me about it too.

It is no exaggeration to say that the evidence which was heard from the selection of victims who came here to recount their personal and often very painful experiences at the hands of the press was truly chilling.

Now, you can substitute "Church" here for " press", and the "evidence" before the enquiry with "the ABC Four Corners program, the Foster book", and many other examples, and you could make the same statement without being in the slightest bit embarrassed that it might be an exaggeration.

One of the things I have constantly stated in this forum was that the 1996 Towards Healing protocol making it obligatory to report child sex abuse by priests to the police or relevant authorities, was a big step forward, and all credit should be given to Bishop Geoffrey Robinson and the Australian bishops for going to Cardinal Ratzinger and getting an exemption from the secrecy provisions of Crimen Sollicitationis to allow such reporting. The real scandal is that Ratzinger, neither as head of the CDF or as Pope applied that to the rest of the Church until 2010, when he finally gave in to world pressure. That is a familiar story and I won't repeat the damning evidence against him.

But what I never knew, and I guess no one except the Church knew, was the extend to which the Church authorities actually complied with the reporting provisions of the Towards Healing protocol. This is where the statement by Deputy Commissioner Ashton is so relevant to the demands that there by a Royal Commission.

"...that despite repeated requests from police, the church was not alerting authorities about clergy sex abuse cases, instead preferring to deal with the cases internally."

Elsewhere in this forum, there is a discussion about Archbishop Hart's statement that victms were reluctant to go to the police. Well, we know that very often victims of all kinds of sexual assaults are unwilling to go to the police because inevitably that means reliving the experience in the police station first and then later in court. But what we don't know is how much pressure has been put on them not to go to the police. And only a Royal Commission can determine that.

The probem for the Church here is that it has appalling form when it comes to this sort of pressure. First, Crimen Sollicitationis required the victims to swear to secrecy, and required anyone else involved in the investigation to not go to the police under pain of excommunication - automatic, and only to be lifted by the Pope personally. Then in 2001, it was reinforced, and repeated in the form of "pontifical secrecy". Now, while Australia was given an exemption in 1966 it is pretty obvious that the culture of cover up was still there because it was still being dictated from on top. Culture in a dictatorial hierarchy comes from the top.

Commissioner Ashton must be speaking from experience. It is essential that these allegations be properly tested with an independent judicial officer. Parliamentary enquiries are fine, but they are not independent. They are run by political parties and are subject to lobbying by interested parties, including the Church.

The other matter that needs to be looked at urgently is that there are two aspects clergy sexual abuse. One is the criminal side. Now, let's assume that Archbishop Hart is right and that most victims don't want to go to the police and want it dealt with "internally". What does that mean? Well, the Church, like any private organization has a right to make its own disciplinary rules for its priests. When a victim goes to the Church, he or she may well be looking for the Church to impose some disciplinary measure, whether defrocking or whatever. But in most cases, they have suffered serious tortious damage at the hands of the clergy. They are entitled to compensation as a matter of law.

And there's the rub. The priest is either dead or has no assets. The bishop is either dead or has no assets. In such circumstances, the victim is completely at the mercy of the Church because of the Ellis defence. Any decent lawyer will tell them that they can't take it to court.

I have said many times before,that anyone with the slightest experience of legal practice, knows that in any negotiation or mediation to settle a compensation claim, the strength or weakness of the claim is critical to the ultimate outcome. In other words, everyone, including a mediator, is looking ahead to what an outcome might be in court. And in the case of the Catholic Church, in many cases, where it wants to rely on the shabby, James Hardie type, Ellis defence, there is no possible outcome for the victim. And many people are now starting to come forward and show that what they were offered was "go away money". And in the case of the Melbourne response, it is even worse, because of the $50,000 limit ($75,000) put on compensation payouts by the "independent" Commissioner and his team. How can they be "independent", when they can't award more than the limit the Church puts on them?

Now, getting back to your comments on the Leveson enquiry and freedom of the press. Yes, one has to be careful about some type of watchdog on press freedom for reasons you mention. But in many ways, there are already some independent judicial controls on the press by defamation laws. Giving affected persons the right to sue where there has been an unjustifiable violaton of their privacy may be one way to solve the "big brother" problem.

But these concerns do not apply to the Church and clerical sex abuse. If a Royal Commission shows that pressure had been put on victims not to go to the police, then the public airing of this should be enough to bring it to an end, even if there was no criminal conduct involved. The Church should be shamed into stopping it.

Second, if the Ellis defence is outlawed then those victims who for good reason don't want to go to the police, can at least be satisfied that they are not at a significant disadvantage in negotiating for compensation with the Churchn - an organization, which, strictly speaking, does not exist when it is convenient to say that, to protect its coffers.

Third, one of the problems that all disciplinary bodies have in dealing with members is the fact that the recalcitrant members are dealt with by their peers. Now, I think that it is appropriate that their peers be part of the disciplinary tribunal - after all, doctors do have a better idea about what is medical malpractice. But the way that secular society has dealt with the problem of justice being seen to be done is to make sure that there is some non professional presence on the tribunal.

The Church would, of course, scream interference in religious liberty. But priests do have a peculiar problem which does not exist with other professions. There are many more doctors, lawyers, dentists, and architects than there are priests who do form a small exclusive club. The problem is much more acute for them. The laity are supposed to be a significant part of the "people of God". Many of them have legal, psychological and medical qualifications.

Why could not they also be part of such a tribunal? The longer the Church hierarchy resists giving them a proper place in deciding disciplinary matters over priests - and I am not just talking about giving legal or other advice, but the right to be part of the decision making team - the more likely there is going to be pressure, once again, from secular society to interfere.

There has to be a Royal Commission to look into all these things.