Social Commentary

Post Recommendations: The Ongoing Legal Ramifications and Contention around the Royal Commission into Institutional Responses to Child Abuse

On 12 November 2012, former Labor Prime Minister Julia Gillard announced an intention to inquire into widespread institutional responses into child sexual abuse within religious institutions, state care providers, not-for profit organisations and child service providers in the form of a Royal Commission into institutional responses into child abuse. The terms of reference for the royal commission were deemed to be inquiry into how institutions and governments alike can act to better improve safeguards against child sexual abuse within institutions in the future, what best practice is in reporting, responding and gathering information about allegations, incidents and risks of child sexual abuse within institutional contexts, determining what impediments exist for reporting, investigating and responding appropriately to allegations into child sex abuse and assessing how institutions that have failed to safeguard children should response to child sexual abuse should address and alleviate the hurt caused and help move towards healing. Ultimately the Royal Commission sought to reform laws, policies and institutional practices to strengthen protections afforded to children and young people in institutions and how allegations of child sexual abuse were to be dealt with.[1] Consequently over 42,041 calls were received, 25946 letters and emails were handled, 8,013 private investigatory sessions held and 2575 referrals made to authorities, including the police.[2] These facts and figures uncover a widespread institutional failure across Australia that has caused immeasurable pain, torment and angst to people and families seeking answers and reform to ensure institutions are accountable for their actions and responses to allegations of child sexual abuse. Whilst various institutions were embroiled in allegations of mishandling allegations of child sexual abuse, notable organisations that exhibited a systematic mismanagement and lack of child safety procedures include Scouts Australia, YMCA NSW, The Salvation Army, Knox Grammar School, Uniting Church, Yeshiva Chabad Schools, the Australian Defence Force and most notably, the Catholic Church. Evidence of experiences with these organisations was ascertained through private sessions where solicitors sat with survivors and listened to the experiences, the response of the institutions and the frustration and hurt encountered by survivors who feel institutions have lacked accountability for too long. Consequently, the Royal Commission into Institutional Responses to Child Sexual Abuse passed down it’s final report recommendations in December 2017, providing recommendations to the government and institutions alike on how to ensure child safety. This essay seeks to explore some of the more contentious recommendations and explore the legal arguments provided to support and reject various recommendations.

A) Making Religious Figures Mandatory Reporters

 

Whilst various religious organisations of differing beliefs, values and denominations were embroiled in the Royal Commission into Child Sexual abuse, none were as prolific and integral to the findings than the Catholic Church, so much so that for many news organisations referred to the Royal Commission as the Royal Commission into the Catholic Church. People in religious ministries, particularly of the Catholic Church, engage with children in various capacities, including “religious instructions or pastoral care for children, community group activities run by places of worship, religious confessions and the National School Chaplaincy Program, where chaplains provide pastoral care services in over 3,000 schools across Australia”.[3] This wide scope of interactions places people in religious ministries in a position that enables them to receive disclosures and detect cases of institutional sexual abuse. The Royal Commission consequently sought to extend mandatory reporting responsibilities onto people of religious ministries to sexual abuse can be prevented or intervened in by those best positioned to detect said occurrences.  This recommendation has met great hostility by ministries, parishoners, clergies and figureheads of the Catholic Church who contend that this responsibility cannot interfere with the inviolability of the sacrament of reconciliation, as canon law of the Catholic Church forbids the sacramental seal as inviolable. The tension between balancing the rights and safety of children within the Catholic church and the rights of the church community to follow the rules and procedures of the church without the intervention of the state has proven problematic for legislators and the public alike.

In accordance with section 127 of the Evidence Act[4] (replicated within New South Wales, Tasmanian, Victorian, Northern Territory and ACT Evidence Acts), information provided to priests within confessions are non-compellable, as “a person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the content of a religious confession made, to the person when a member of the clergy”. [5] The Royal Commission was satisfied that “the practice of the sacrament of reconciliation contributed to the occurrences of child sexual abuse…[and] leaders having viewed child sexual abuse as a sin to be dealt with through private absolution and penance rather than as a crime to be reported to police.”[6] Consequently, victims groups and the publics lobby to reform the Evidence Act and compel priests and those in religious ministries mandatory reporters, irrespective of their faith and the inviolability of the confessional, as “those who have covered up abuse and put the interests of their church and the reputation of their clerics above the suffering of abused children don’t deserve the protection of their the congregation or the law”.[7]

Many legal practitioners argue that as a secular multicultural nation, Australia should not afford special legal protections to the Catholic Church and the sanctity of the confessional, particularly if said protection endangers the safety and lives of vulnerable children. The protection of non-compellability within the Catholic confessional was determined in Royal Commission findings to be a barrier to reporting and at times, the situation in which sexual abuse would occur in the privacy of a confessional room or box. Due to the present protections provided to the sanctity of the confessional, priests ignored the secular legal ramifications of child sexual abuse that the average Australian would be accountable for, instead providing repentance and treating disclosures of either molesting or being molested as a spiritual impurity that was accountable to God and not to the state. Thus, “religious confessions provided for spiritual atonement of the perpetrator (which would not appear to require public or open admission or acknowledgement of act and consequence) without secular acceptance or responsibility.”[8] Many now believe that if the Catholic Church is to “recover from the immense reputation damage it has suffered from the exposure of hypocrisy and complicity in crimes against children then it must dispose of this anachronism.”[9]

Further, many contend that as the role of priests and the religious ministries surpass merely their confessional roles and act in capacities of pastoral care for children and engage in chaplaincy programs, priests should have a duty of care to their parishoners that resembles the responsibilities of healthcare workers, educators, child welfare practitioners and those who work in law enforcement. Much alike priests, these professions have the ability to access children one-on-one, they often have sensitive information divulged to them as trusted adults and are often perceived as protectors. These principles are evidenced in published case studies of victims of child sex abuse in institutions where many young people approached their spiritual leaders to obtain assistance in addressing the wrong done to them within the religious institution and instead were met with hostility, indifference and apathy.

It is contended however that the role of a confessional goes to the root of Catholicism and importance of forgiveness, receiving the sacrament and anonymity before the confessional. Melbourne’s Catholic Archbishop Denis Hart has denied that disproval of this recommendation of the Royal Commission is the church and it’s priests acting above the law, instead an understanding that some things, namely the confessional, has a higher order and is inextricable intertwined with God. Archbishop Hart does maintain that “if we were to leave the seal there, which is the position of the Church…it’s perhaps the only opportunity where a person who’s offended or a child who’s been hurt, can take the opportunity for broader advise and then outside the confessional for appropriate action to be taken”.[10]This proposition is criticised by many practitioners as flying in the face of Royal Commission recommendations as the Catholic Church has had decades to encourage confessors to report child sex abuse to secular authorities however evidently this method has failed to encourage perpetrators and victims to come forward and acknowledge the wrong done by or to them. These statements are seen by many as self preservation of the heads of the Catholic Church in continuing to protect those perpetrating child sexual abuse in religious institutions.

Those who do not support this recommendation of the Royal Commission further assert that s 116 of the Australian Constitution protects religious observance without the interference of the state, as “the Commonwealth shall not make laws for establishing any religious, or for imposing any religious observance, or for prohibiting the free experience of any religion”.[11] Whilst some argue making priests and religious ministries mandatory reporters would be constitutionally invalid, the granting or privilege of non-compellability of statements made in confession is a secular determination offered in good faith to the Catholic Church and as such, revoking provisions of non-compellability does not interfere with exercise of free religion. It is counter-argued that the protections offered in the Evidence Act were provided before the findings of the Royal Commission into Institutional Responses into Child Sexual Abuse and understanding the nexus between the confidentiality of the confessional and the under-reporting and concealment of child sex abuse in Catholic institutions.

Whilst the recommendation of the Royal Commission is evidently contentious and inextricably linked to the fundamental values and beliefs of many Catholics, the seriousness of the alleged crimes of sexual abuse and indifference towards children of the Catholic Church constitutes serious action being taken. Those refusing to adopt the Royal Commission recommendations of mandatory reporting are seem as “ symbolic of the culture of secrecy and cover-up that has perpetuated generations of abuse”.[12] Thus, irrespective of whether the Catholic Church and other religious institutions alike adopt these measures, it is integral that the welfare and protection of vulnerable children’s rights are protected, namely that there institutions do not protect and conceal sexual abuse of children. If religious institutions and secular institutions apply this value as a pillar value of all negotiation made regarding the findings of the Royal Commission into Institutional Child Sexual Abuse findings, our society as a whole will be better for it.

 B) Amendments to Canon Law – Can Canon Law and Civil Law Work Hand in Hand?

 

Catholic priests and ministries within Australia are accountable not only to domestic civil laws, but also canon law imposed and regulated by the Catholic hierarchal authorities as a means of ensuring all Catholic bodies function with the purpose of advancing the Catholic faith. Canon law comprises of a myriad of theological and philosophical principles that are interpreted and applied to the Catholic church, to be treated as legal principles. Canon law “is derived from a formal code of promulgated in 1983 and from canonical jurisprudence which has evolved over many years…[and] defers to civil law in most respects, but only to the extent that the civil laws are not contrary to canon law”.[13]Where there is a disconnect between civil legislation and canonical laws, priests are religious ministries are at liberty to determine what laws and regulations they will follow – a decision generally favourable to canon law.

Controversially, the Royal Commission into Institutional Child Sexual Abuse uncovered a culture in the Catholic Church and Catholic institutions whereby alleged offenders were not reported to civil authorities for offences against a minor within the Crimes Act, instead canon law was relied on as a means of obfuscating responsibility. Prior to 1922 Canon Law recognised that child sexual abuse was a sin that was punishable in accordance with civil laws and that would be judged harshly by God on judgement day. Pius X1 adapted the code of canon law in 1922 by imposing a strict responsibility upon priests and the religious order to manage allegation of child sexual assault in-house to self-preserve and portray an illusion and portray a sense of perfect morality. Consequently, in 2018 under canon law, the most severe means of disciplining religious ministries and priests for actions of child sex abuse “was dismissal from the priesthood or religious life…[however as this action was rarely relied on, many] religious superiors adopted a range of informal responses aimed at limiting the capacity of alleged perpetrators to engage in Ministry”.[14] Consequently many representatives of the Catholic Church were relocated to different institutions and parishes as a means of preserving the good name of the Catholic institution, removing the perpetrator from the child and in effect, fortifying religious perpetrators from civil law. Father Thomas Doyle, an American priest and canon lawyer testified that canon law is used worldwide as protecting the Catholic hierarchy, avoid responsibility and excuse the inaction of the church and as such, “it wasn’t naivety or innocence – as too many senior churchmen argued over the years – but a clinical, systematic, cold-blooded process designed to protect the “brand”, informed by centuries of “Calling the shots”.[15]The Royal Commission into Institutional Child Abuse recognised these occurrences, stating

the offending priest was often removed from the parish where the allegations had arisen and moved to a new location where the allegations were unknown. Untrue and misleading reasons for the priest’s departure were given to the old parish, and no warning was given to the new parish. Sometimes, the priest was sent for treatment and counselling…[and] often, more allegations against the priest emerged in the new parish.[16]

The Royal Commission into Institutional Responses to Child Sexual Abuse final recommendations 16.10 to 16.26 relate to canon law and changes that should be implemented to ensure the safety of the clergy and clear and appropriate repercussions for offending priests for all catholic institutions. Namely, the Royal Commission recommended in 16.10 that the Australian Catholic Bishops should request to amend canon law so that the potential secret does not apply to any aspects of allegations or canonical disciplinary process relating to child sexual abuse and to in effect urge priests to report allegations of sexual abuse to respective civil authorities. Further, recommendation 16.16 requests that the Catholic Church departs from the heir of secrecy and that Australian Catholic Bishop Conference should request the Holy Sea to introduce measures to ensure that decisions that are made in disciplinary matters about child sexual abuse be published publically. This recommendation was made as a means of ensuring transparency between religious ministries and their parishes by proving churches inform parishoners of dangers and suspected child endangering behaviours of Catholic priests and clergies.

Whilst critics opposed to recommendations of reform argue that the inherent operational goal of canon law is to provide a consistent set of rules to Catholics worldwide, supporters of canon law reform contend that institutional sexual abuse is not isolated to Australia as the 2017 report into ‘Child Sexual Abuse in the Catholic Church: An Interpretive Review of the Literature and public Inquiry Reports’[17] found. The report “examined 26 commissions of inquiry, scientific research and literature since 1985 to find common features in the culture, history and structure of the church and the psychological, social and theological factors.”[18] The denominators and factors influencing the impunity of the Catholic church in concealing abuse are recognised internationally, with reports of systematic sexual abuse in Catholic Churches in Australia, America, Chile, Peru, Mexico, Canada, Sweden, Slovenia, Poland, Netherlands, Malta, Italy, Croatia, The Philippines, Tanzania and Kenya. It is significant to note that undoubtedly other nations are also embroiled in child sexual abuse in Catholic institutions, however an underreporting or continued concealment of allegations contributed to limited statistics.  Whilst consecutive Pope John Paul II, Pope Benedict XVI and Pope Francis have spoke decisively against priests accused of assault, no concrete changes to canon law have been made and as such, systematic covering up of child sexual abuse continues within Catholic institutions.

Until Royal Commission recommendations are merely discussed and adopted in reforming canon law to encourage child safety and encouraging reporting of priests to secular law enforcement agencies, little can be done to compel religious ministries from evading responsibility and continuing the culture of moving offenders from parish to parish. If canon law and secular Australian law is to continue conflicting, vulnerable children will continue to be endangered by the lack of accountability and reporting for the Catholic Church as priests and religious ministries continue to prioritise their relationship with God and Catholic hierarchies over secular institutions.

C) Selection, Screening and Initial Formation of Ministries

 

Selection, screening and formation of parishes and ministries is a largely ad hoc process that occurs without explicit guidelines, expectations and hurdles that are consistent Australia wide. To the contrary, the Royal Commission into Institutional Responses to Child Sexual Abuse found that the lack of adequate screening of candidate for admission, lack of transparency around the inherent difficulties of celibacy and difficulties and temptations of working in a venerated position within the Ministry failed to prepare priests and ministries for their roles. In fact, “the initial training of priests and religious [peoples] occurred in segregated, regimented, monastic and clerical environments, and was based of obedience and conformity…this increased the risk of child sexual abuse.”[19]

Unlike other professions where assurances such as working with children checks and child-safe training is implemented, the Catholic Church was criticised for not preparing seminarians for the realities and responsibilities of their duties. Recommendations 16.21 of the Royal Commissions final report provides that “the Australian Catholic Bishop Conference and Catholic Religious Australia should provide a national protocol for screening candidates before ad during seminary of religious formation, as well as before ordination”. This recommendation implies that unlike current protocol, priests should be monitored and justify intermittently that they are child-safe and do not post a threat to their parish. Recommendation 16.22 stipulates that assistance of psychologists, senior-clerics and the lay people should be called upon to determine whether a candidate is fit to work in religious ministry. It has since been suggested that 16.22 is recommending that “candidates for religious ministry should undergo external psychological testing, including psychosexual assessments, to determine their suitability to be in the ministry and to undertake work involving children”.[20] This recommendation mirrors vetting processes adopted in Ireland where all recruits are psychologically tested to prevent historical clerical abuse from occurring again.[21]

In Australia, little guidance has been offered into what a psychosexual assessment and psychological testing should involve and how these tests would decrease instances of child sexual abuse. In fact, many dispute recommendation 16.22 of the Royal Commission claiming that priests and religious ministries are constituted of people, people who naturally have sexual urges and should be taught how to manage them instead of analysing them. Sex therapist Bettina Arndt asserts that psychological testing and psychosexual assessments may demonise ministries struggling with sexual urges and disincentivise transparent conversations about the realities of maintaining celibacy. “I mean he’ll [priest] be regarded immediately as a paedophile if he talks about the fact that he’s finding it difficult to deal with young people who may be, you know, tempting him in some way”.[22] Whilst may criticise the Royal Commission for inadequately stipulating what types of vetting process should take place in, arguably the Royal Commission has afforded the Catholic Church the autonomy, along with the Australian Catholic Bishops Conference and Catholic Religious Australia to establish their own criteria for child safety in good faith that lessons were learnt from the Royal Commission findings. Evidently the Royal Commission appreciates that in order for child safety precautions to be adopted, the Catholic Church cannot feel disengaged from its operations and rules and sensibly have afforded Catholics the opportunity to invest in their communities and strengthen child safety. The consultative approach the Royal Commission took with these principles is evidences in recommendation 16.18, whereby it was suggested that the “Australian Catholic Bishops Conference should request the Holy See to consider introducing voluntary celibacy for diocesan clergy”. Considering this recommendation is so far out of the realm of what Catholic Priests practice and preach, the Royal Commission makes little reference to this recommendation and instead pursues principles and practices that does not threated the Catholic faith system.

In conclusion, it is erroneous to conceptualise Institutional Child Sexual Abuse as an enquiry into historic cases, instead the Royal Commission into Institutional Responses into Child Sexual Abuse should be recognised as an inquiry into what changes can be made to protect future generations at the peril and cost of those voiceless for decades. It is undeniable that a lack of accountability, toxic institutional cultures and a lack of foresight into child protection saw various institutions, religious and not, fail children across Australia. Through examination and testimony at the Royal Commission into Institutional Responses to Child Sexual Abuse, institutions, various levels of governments and the layperson were afforded the opportunity of learn of barriers to reporting, seeking help and protecting children. The Royal Commission also “heard from parents, spouses and siblings about the abuse of their relatives, any of whom have died, sometimes by suicide”.[23] It is imperative that lessons are learnt, recommendations are adopted, parishes and organisations address allegations and child safety is considered a central pillar of these institutions as a means of honouring the lives of victims and actively moving towards healing.

[1] Royal Commission into Institutional Responses to Child Sexual Abuse, Terms of Reference (2013) <https://childabuseroyalcommission.gov.auterms-reference/&gt;.

[2] Royal Commission into Institutional Responses to Child Sexual Abuse, Fast Facts (2017) <https://childabuseroyalcommission.gov.au/&gt;.

[3] Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Volume 7, Improving Institutional Responding and Reporting (2017), 97.

[4] Evidence Act 1995 (Cth), s127.

[5] Ibid

[6] Above n 2

[7] Commonwealth, Parliamentary Debates, House of Representatives, 24 May 2018 (Stephen Jones MP).

[8] Joe Harman, ‘The Power of Confession: Mandatory Reporting, Confession and the Evidence Act’ (2013) AltLJ Volume 38:4, 242.

[9] Above n 7

[10] Danny Tran and Karen Percy, ‘Australian Catholics Pass Judgment on Royal Commission Calls to Break Confessional Seal’, ABC News (online), 15 August 2017 <http://abc.net.au/news/2017-08-15/catholics-pass-judgment-on-royal-commission-calls-to-break-confessional-seal/&gt;.

[11] Australian Constitution s116.

[12] Above n 7

[13] John E Date OAM, ‘Implications of Canon Law for Church Organisations Operating in Australia’ (2008) Melbourne Law School Degree of Masters of Law by Thesis, 1.

[14] Royal Commission into Institutional Responses to Child Sexual Abuse, Religious Institutions – Catholic Church (2017) <https://childabuseroyalcommission.gov.au/religious-institutions&gt;.

[15] Joanne McCarthy, ‘Australia’s Bishops Still Don’t Get It – Things Have Changed’, Sunday Morning Herald (online), 12 June 2018 <http://sundarymorningherald/politics/australias-bishops-still-don’t-get-it-things-have-changed&gt;.

[16] Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study No. 28 Catholic Church Authorities in Ballarat (2017) <https://childabuseroyalcommission.gov.au/case_study_28_findings_report_-_catholic-church-authorities-in-ballarat&gt;, 421.

[17] Kieran Tapsell, ‘University Report Lifts the Lid on Child Sexual Abuse in the Catholic Church’, (2017) National Catholic Reporter (Online) <http://ncronline.org/news/accountability/university-report-lifts-lid-on-child-sexual-abuse-in-catholic-church&gt;.

[18] Ibid

[19] Above n 14

[20] ABC News, ’15 Recommendations from the Royal Commission into Child Sexual Abuse you should know About’, (2017) ABC NEWS (Online) < http://www.abc.net.au/news/2017-12-15/royal-commission-recommendations-you-should-know-about/9262758&gt;.

[21] Henry McDonald, ‘Psychological Vetting of Would-Be Priests Exacerbates Decline’ (2008) The Guardian (Online) < https://www.theguardian.com/world/2008/sep/11/catholicism.ireland&gt;.

[22] Nick Grimm, ‘Catholic Church: Psychologist Bettina Arndt Questions How priests can be Trained to Cope with Enforced Celibacy Pressures’(2014), ABC NEWS (Online) <http://www.abc.net.au/news/2014-12-12/sex-therapist-doubts-churchs-training-for-celibate-priests/5964034&gt;.

[23] Above n 1

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