Current Issues in Criminal Justice
Why the Continuous Failures in Justice for
Australian Victims and Survivors of
Catholic Clerical Child Sexual Abuse?
This brief comment explores the significance of a number of current lawsuits brought against Catholic Church leaders in Ballarat, Victoria, Australia, in the context of enduring failures of justice for Australian victims of Catholic clerical child sexual abuse. It examines the obstacles to criminal and civil justice that have prevented Church superiors from being held to account for child sexual abuse perpetrated in Catholic institutions, and explains the responsibility of Australian governments, courts and the Catholic Church to further justice for survivors[†] in this context.
Keywords: Catholic clerical abuse – child sexual abuse – litigation –
historical child abuse – Ballarat – Australia – Pell – Mulkearns
In April 2016, former Bishop of the Catholic Diocese of Ballarat, Ronald Austin Mulkearns, died leaving behind a litany of unanswered questions about one of the most entrenched sites of systemic child sexual abuse in Australian institutions (ABC Radio 2016). In the months preceding his death, 86-year-old Mulkearns was summonsed to testify to the Australian Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Royal Commission’) about what he knew, and what he did, about proven child abuse within schools, orphanages and parishes under his watch from 1971 to 1997. From his nursing home, Mulkearns gave 90 minutes of videolink testimony, in which he acknowledged his regret that he did not understand the impacts of child sexual abuse when he chose to relocate priests and brothers with credible, repeated complaints made against them (Commonwealth 2016a). But he offered little information that shed light on the organised criminal activity of the diocese perpetrated on children ‘over generations’ (Family and Community Development Committee 2013a:53), which is believed to have been implicated in the suicides and premature deaths of possibly dozens of victims of abuse (McKenzie-Murray 2015). Previous inquiries have shown that Mulkearns, who possessed a doctorate in Canon Law, rarely kept records, and that he destroyed much of the information he did record (Family and Community Development Committee 2013a:42).
The case study of Ballarat forms the most comprehensive investigation of the Royal Commission, in operation since 2013, and highlights the systemic failures of justice for all Australian victims of Catholic clerical child sexual abuse. The web of brothers and priests involved in child sexual abuse in Ballarat from the 1950s to the 1990s suggests an extraordinary density of crimes, including violent rapes, mostly of boys aged 5–14, who were students of local Catholic institutions in the former gold-mining regional town. In one primary school, St Alipius, a female lay teacher was the only teacher not subsequently convicted or suspected of perpetrating child sexual abuse in 1973 (a peak year for abuse) (Family and Community Development Committee 2013a:51–7; Waller 2012:8). Historical allegations made recently against Cardinal George Pell, the Prefect of the Secretariat for the Economy of the Holy See, have once again brought the troubled diocese to public attention. In July 2016, it was reported that Pell, Australia’s highest-serving officer at the Vatican, is under investigation for allegations of sexually abusing children in Ballarat in the 1970s and elsewhere in the 1980s and 1990s — claims Pell denies (Milligan and Burns 2016; ABC TV 2016).
This brief comment explores the significance of a number of current lawsuits brought against Church leaders in Ballarat in the context of enduring failures of justice for Australian victims of Catholic clerical child sexual abuse. It examines the obstacles to criminal and civil justice that have prevented Catholic Church superiors from being held to account for child sexual abuse perpetrated in Catholic institutions, and explains the responsibility of Australian governments, courts and the Catholic Church to further justice for survivors.
The criminal investigation of Church superiors for offences relating to the concealment of crime were progressed in New South Wales (‘NSW’) largely as a result of the Special Commission of Inquiry into Matters Relating to the Investigation of Certain Child Sexual Abuse Allegations in the Catholic Diocese of Maitland-Newcastle (‘the Newcastle Inquiry’), established in 2012. That inquiry was precipitated by the landmark charges laid against Newcastle Priest, Father Thomas Brennan, for two counts of misprision of felony — concealing a serious indictable offence — relating to serial child sex offences committed by priest Father John Denham in the 1970s (McCarthy 2012). Brennan was also charged with two counts of assault, for caning children who complained about Denham’s abuse, and eight counts of sexually assaulting an eight-year-old boy at a church in the 1980s (Bibby 2015). Brennan’s are likely to have been the first charges of concealment offences made against an Australian Catholic clergyman (Ryan Carlisle Thomas Lawyers 2012). Brennan died before his trial. More significantly, the Newcastle Inquiry led to the 2015 charges laid against the most senior Catholic leader internationally, Archbishop of Adelaide Philip Wilson, for concealing a serious indictable offence, under s 316 of the Crimes Act 1900 (NSW). This charge relates to the alleged concealment of the alleged crimes of another Newcastle priest, Father James Fletcher, with whom Wilson lived in the 1970s. Fletcher was convicted of multiple child sex offences in 2004 and the case against Wilson concerns allegations that he withheld information from the police during the 2004 investigation (R v Fletcher; Wilson v Department of Public Prosecutions (NSW)).
It would appear that no charges concerning concealment of offences have been laid against Catholic Church personnel in Ballarat or elsewhere in Australia. This is despite evidence tendered to the Royal Commission, and to a comprehensive Victorian State Government investigation (‘the Victorian Inquiry’), that Mulkearns sent Ballarat priests for ‘treatment’ and relocated them after complaints had been made against them (Family and Community Development Committee 2013a:171). Police reports tendered to the Victorian Inquiry indicate that the Victorian police considered charging Mulkearns with misprision of felony in the 1990s (Ryan Carlisle Thomas Lawyers 2012). This was reportedly in regard to crimes committed in the 1970s by notorious convicted child sex offender and former St Alipius school chaplain, Father Gerald Ridsdale, who is currently serving custodial sentences relating to his convictions of 138 child sex offences perpetrated in various locations over 30 years (Towers and Akerman 2015; see, for example, R v Ridsdale). After considering the distinction between misdemeanour and felony in relation to Ridsdale’s convictions, the police did not charge Mulkearns (Ryan Carlisle Thomas Lawyers 2012). The common law offence of misprision of felony was repealed in 1981 and replaced with accessory to a serious indictable offence (s 325), and concealing of crime ‘for gain’ (s 326) in the Crimes Act 1958 (Vic).
The criminal convictions of individual Catholic child sex offenders have progressed justice for some survivors of abuse. However, the failure to hold Church superiors to account in Victoria (and elsewhere) has contributed to a sense of sustained immunity internalised by the Church. While the Victorian Inquiry concluded that the ‘systemic nature of this abuse’ in Ballarat was ‘undeniable’ (Family and Community Development Committee 2013a:50), Church representatives continue to describe the organised criminal activity as ‘an accident of history’ (Br McDonald in Family and Community Development Committee 2013a:57) and a ‘disastrous coincidence’ of unrelated events and personalities (Pell in Commonwealth 2016b). In particular, Pell has consistently denied the systemic nature of the crimes of Ballarat or, for that matter, his personal knowledge of them at the time (Commonwealth 2016b). This is despite his service as priest in the diocese from 1973–83, including sharing St Alipius presbytery with Ridsdale in 1973, and evidence that Pell was present at a 1982 meeting when Mulkearns discussed the need to remove Ridsdale from the primary school (Carlyon 2015). It is also despite Pell’s role from 1996–2001 as Archbishop of the Archdiocese of Melbourne, in which Ballarat is situated.
Pell has never had to address the crimes of the priests and brothers of Ballarat in criminal or civil trials. The new Vatican position at the Secretariat for the Economy was announced on 25 February 2014 (ABC News 2014). This was soon after the Victorian Inquiry report was tabled and shortly before the tabling of the Newcastle Inquiry report. Pell has since relocated permanently to Rome, refusing to return to Australia to appear in person at the Royal Commission in 2016. In the past, The Holy See has resisted investigations into its representatives’ handling of sex abuse complaints, by invoking diplomatic immunity for the Pope and other Church superiors, such as the Irish Papal Nuncio (O’Gorman 2009), and by refusing to cooperate with the Royal Commission in regard to requests for what Pell describes as the ‘internal working documents of another sovereign state’ (AAP 2014).
Correcting narratives of ‘coincidence’ and ‘accidents’ to prove the organised and systemic nature of institutional child abuse is a crucial priority for those seeking a sense of justice, meaning and wellbeing for survivors (Balboni 2011; Lytton 2008) with important implications for future child protection policies and procedures (Lytton 2008). In this regard, the civil law offers even greater potential than criminal laws to address institutions, organisations and third parties to criminal activities, and to perform the function of truth recovery by exposing the organisational processes implicated in abuse (Lytton 2008). While some (perhaps many) survivors may prefer alternative dispute resolution (‘ADR’) to courtroom trials, court determinations perform essential public interest functions of declaring liability and responsibility for systemic crime, including through the application of exemplary damages. Commencing in 2015, Mulkearns was therefore the subject of a negligence suit brought by 17 survivors of Ridsdale’s abuse (ABC Radio 2016). With the death of Mulkearns, it is unclear if the suit will proceed, although a similar suit continues against his deceased predecessor, with the current Bishop of Ballarat Paul Bird acting as respondent (ABC Radio 2016). If successful, the Ballarat lawsuits would represent the first time the Catholic Church has been found liable for institutional child abuse in Australia.
The Ballarat suits aim to change the terms of play for survivors of historical Catholic institutional child abuse in Australia where, as an unincorporated association, the Catholic Church has escaped liability for the criminal activities of its priests and other religious personnel, essentially because a correct defendant had not been named in suits targeting ‘the Church’ or religious orders, and due to Australian courts’ conservative treatments of vicarious liability. Just one successful lawsuit could inform the parameters of the multitude of confidential settlements in the process of negotiation in private mediation and Church-run compensation schemes, involving schools, parishes and dioceses, across the country. Since 1993, complainants have attempted to seek damages via mass and individual vicarious liability suits brought against orders such as the Christian Brothers, Archbishops and Archdioceses, and the Trustees of the Church, to no avail (Gleeson 2016). In response, the Church has argued for the strictest interpretation of limitation acts, and/or has failed to put forward a suitable defendant to be sued (Waller 2012).
The first significant attempt at a mass lawsuit, representing more than 200 claimants and brought against the Christian Brothers, was defeated on the basis of limitation acts (Gleeson 2016). While recent reforms in NSW and Victoria have removed the barriers of statutes of limitations in child abuse cases, the 2016 High Court Decision in Prince Alfred College Inc illustrates the sustained obstacles of limitation acts in those jurisdictions that have not reformed the law, or where a common law defence of inordinate delay might be advanced (Prince Alfred College Incorporated v ADC). With regard to the Catholic Church in particular, it was the 2004 trial of Ellis, in which an individual attempted to seek compensation for his abuse by his parish priest in the 1970s, that confirmed the Church’s strategy of arguing that a correct defendant had not been named (Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis). Ellis attempted to sue both the then current Archbishop of Sydney George Pell (ruled not to have been involved at the time) and the trustees of the Church (ruled not liable for the conduct of priests, who are not employees of the trustees — an essential element of vicarious liability). The judge also observed that an unincorporated association, such as the Catholic Church in Australia, cannot (at common law) sue or be sued in its own name because, among other things, ‘it does not exist as a juridical entity’ (at 47). Ellis was delivered in the wake of the most high-profile and expensive of all Catholic Church settlements, made by the Archdiocese of Boston USA, which paid a reported US$85 million to 552 claimants in late 2003 (Edelman 2015:274).
Lawyers acting for Australian survivors of Catholic abuse identify ‘the Ellis defence’ as the single greatest obstacle to civil justice today (Law Report 2015; Waller 2012; Morrison 2013), especially since it was upheld in 2011 (PAO, BJH, SBM, IDF and PMA v Trustees of the Roman Catholic Church for the Archdiocese of Sydney). The Australian High Court’s treatment of vicarious liability in the context of child sexual abuse perpetrated by teachers in non-residential schools does suggest a narrow reading of vicarious liability, when compared with jurisdictions such as Canada and England (NSW v Lepore). Even so, in cases where a religious diocese or school is incorporated, survivors of child abuse committed in schools of other denominations have been able to obtain justice in the Australian courts. For example, in 2001, the Anglican Corporation of the Synod of the Diocese of Brisbane was sued for a teacher’s sexual abuse of a boarding student at the Toowoomba Preparatory School in 1990, and ordered to pay A$494 000 including exemplary damages (S v The Corporation of the Synod of the Diocese of Brisbane). In 2015, the Melbourne Adass Israel School was sued for the sexual offences of headmistress Malka Leifer committed on a pupil, and ordered to pay A$1million, including exemplary damages relating to the school’s ‘deplorable’ concealing of the offences (Erlich v Leifer at 220). Because Leifer was the headmistress, she was deemed to represent ‘mind and will of the School’ (at 7). As such, ‘her misconduct was the misconduct of the School’ (at 118), which was found both vicariously and directly liable for damages arising from the sexual abuse.
However, in the example of Ballarat, non-diocesan schools such as St Alipius are not incorporated. And in the case of Ridsdale, his crimes were committed in his role as priest (rather than teacher) at various locations that are not incorporated within any school governance structure. In Australia, more than in any other country in the world, the Catholic Church has instead controlled survivors’ compensation, and therefore justice, through its two relatively meagre in-house ex gratia schemes Towards Healing and The Melbourne Response, both operational since 1996, and both instrumental in deterring litigation (Gleeson 2015). Many complainants simply give in, and settle for a small one-off ex gratia payment, made on the condition that the Church does not acknowledge responsibility for abuse (Commonwealth 2015a). And, while numerous Catholic orders, schools and other institutions have been the subject of mass and individual claims, these have tended to be settled out of court. For example, following the 2008 criminal convictions of Canberra-based Marist Brother, Brother Kostka Chute, the Marist Order actively encouraged claimants to make use of Towards Healing, rather than civil claims, while internally resolving to ‘continue to play hardball’ regarding the Ellis defence for any claims raised (Commonwealth 2014b:ACT4042). Of those survivors who successfully pursued settlements with the Marist Order, the majority (56 claimants) settled for amounts of money far exceeding that granted comparable claims made under Towards Healing (Commonwealth 2014b).
In the absence of damages awarded by the courts, particularly galling to many Australian survivors are the resources fronted by the Church for the legal representation of sex-offending clerics and brothers, such as former St Alipius Principal Brother Best, whose criminal defences of more than A$1million were funded by the Christian Brothers to discredit witnesses and victims in multiple trials for the rape of 11 children, from 1996–2011 (Family and Community Development Committee 2013b; Waller 2012). Hence for many Australians the real significance of the Ballarat suits lies in the possibility that the Church hierarchy might finally be publicly held morally and legally responsible for child abuse, 25 years after the Catholic child sexual abuse scandal first broke publicly.
By naming contemporary Bishops as defendants in negligence suits, the Ballarat suits aim to test the Ellis defence and compel the diocese, or Catholic Church Insurance (‘CCI’), to indemnify named respondents to fund either settlements or damages awarded by the courts. However, the legal process is in very early stages and the outcomes are far from predictable. The death of Mulkearns may also affect proceedings, as the diocese is now invulnerable to any omissions Mulkearns may have made, either to the Royal Commission, or in his own civil court case. In July 2016, it was reported that the proceedings are adjourned, pending the outcome of an ADR process (Waller 2016). There is some hope that the cooperation of Bishop Bird with one of the current Ballarat lawsuits represents a new chapter for the Church responding to the scrutiny of the Royal Commission. Bird appears to be acting in accordance with new Church guidelines issued in late 2015 concerning responses to abuse claims. The new voluntary litigation guidelines stipulate, among other things, that Church representatives should ‘assist a claimant to identify the correct defendant to respond to legal proceedings’ (Truth Justice and Healing Council 2015:1). Although ‘not a legal document’ (Sullivan in Lee 2015), the guidelines are promoted as commensurate to the model litigant guidelines of Australian governments, and as providing a ‘framework for Church authorities to do the right thing in court and ease the trauma of litigation of survivors’ (Truth Justice and Healing Council 2015:1).
Some Christian commentators have optimistically declared the guidelines to signify ‘the end of the Ellis defence’ (Holgate 2016). Already, however, counsel for the Ballarat complainants, Vivian Waller, has voiced her concerns that individual Bishops, who are autonomous in the Catholic organisational structure, might refuse to apply them (in King 2016). Even the Church’s Truth Justice and Healing Council (the body formed to coordinate the Church’s response to the Royal Commission) has all but conceded that individual Bishops cannot be trusted to implement the guidelines, and requested that the Australian government pass legislation to ‘oblige all non-incorporated entities that have anything to do with children to make available an entity’ that may be sued (Sullivan in King 2016).
Equally concerning is that fact that, despite their comprehensive content, the guidelines fail to make directions regarding insurance and indemnity, which are central to any claims that might be brought against individual Bishops who do not possess substantial assets or wealth. The Church has offered no assurances it will indemnify Bishop Bird (ABC Radio 2016). The legal cat-and-mouse game played by the Church acting in the context of an acute ‘power imbalance’ between it and its victims (Waller 2012:4) over the past quarter-century certainly suggests that multiple loopholes remain vulnerable to exploitation. Another lawyer representing survivors, Angela Sdrinis, has stated that whenever she has sought assurances that the Church will present an insured entity or individual to be sued, ‘I don't get a straight answer ... I've not actually got any concrete evidence that they are doing that’ (Law Report 2015).
The role of CCI in allegedly ‘dictating’ the Church’s policy on child abuse (ABC TV 2013) was a focus of the Victorian Inquiry and the Royal Commission. As a charitable institution owned by the Church, CCI is exempt from income tax and has returned over a quarter of a billion dollars in profits since 1979 (ABC TV 2013). Along with corrupting mediation processes ostensibly aimed at reconciliation and healing with pressure to settle (Gleeson 2015), CCI representatives have been accused of destroying records relating to abuse claims (ABC TV 2013). Legal representatives of survivors indicate that cases represented by CCI take much longer, and are much more arduous to settle, than those without CCI involvement (Waller 2016). Aside from the particular moral significance of holding the Church hierarchy to account for its acts of omission and commission that perpetuated child abuse, one fiscal and legal rationale of liability suits is to access the ‘deep pockets’ of corporations, organisations and their insurers to distribute the costs of justice represented by damages related to personal loss, and to perform the public function of the courts associated with exemplary or punitive damages. In Australia, the Church has routinely subverted all of the above.
In the absence of court judgments on either criminal or civil institutional responsibility, the morality of the Catholic Church’s response in Australia is a continuing source of debate. The Church’s understanding of the grave harm of institutional child abuse and its attendant moral responsibilities appears, at best, deeply conflicted after decades of investigations into child sexual abuse perpetrated by priests and other Catholic Church representatives. In response to questioning in the Royal Commission, in 2014 Pell stated that he believed that the Church ‘should be able to be sued in cases of this kind [child sexual abuse]’ (Commonwealth 2014a:5301). But it was he who vigorously promoted the Ellis defence in 2004 and since. And it was he who compared the Church’s (lack of) responsibility for sex-offending clerics to that of a truck company’s (lack of) responsibility for rapist truck drivers, thereby offending both survivors and truck drivers in one fell swoop (in Commonwealth 2014c). (Pell said, ‘If in fact the driver of such a truck picks up some lady and then molests her, I don't think it's appropriate, because it is contrary to the policy, for the ownership, the leadership of that company to be held responsible’ (Commonwealth 2014c:C4509)) In contrast, retired Sydney Archbishop Geoffrey Robinson, architect of the original Towards Healing protocols, has consistently criticised the Church hierarchy’s response to child sexual abuse, especially the Vatican’s inaction and interference with justice (Robinson 2007:21) and the 2001 decree by Cardinal Ratzinger, the then Prefect of the Congregation for the Doctrine of the Faith, that paedophilia committed by priests is a less grave crime than abortion (Commonwealth 2015b:16062–3). Robinson’s, however, is a rare public sentiment that is far from reflective of all Church leaders or priests.
In the week following Mulkearns’s death, Melbourne priest Father Bill Edebohls used his weekly sermon to criticise the Royal Commission, complainants’ lawyers and the media for behaving ‘like the baying crowd of men in the gospel ready to throw stones’ and failing to ‘understand the need for a justice that is drenched in mercy’ (Cook 2016). Edebohls invoked the biblical parable of mercy, in which Jesus calmed a mob intent on stoning a woman charged with adultery with the immortal phrase, ‘he that is without sin among you, let him first cast a stone at her’, to instruct his parishioners that ‘maybe to get the real drama and effect of the story we ought to replace the adulterous woman with a paedophile priest’ (Cook 2016). He continued, ‘that does not mean there is no condemnation of the sin, no punishment or consequences for the perpetrator or an institution that protected him. But it does mean justice with mercy’ (Cook 2016). After Edebohls’s sermon was reported in the press, the Church flew into damage-control mode, but the best justification it could muster was that Edebohls was making an example by comparing the ‘worst sinner’ of biblical times with the ‘worst sinner’ of our times (Healy in Cook 2016). Until court judgments condemn the Church hierarchy as responsible for institutional child abuse, such sentiments undermining its criminality will continue to find excuses to be aired.
The situation in Australia places survivors of child sexual abuse in a uniquely disadvantaged position in the common law world — a situation that could be ameliorated by the courts and statutory reforms. Even in the Republic of Ireland, one of the world’s most ostensibly Catholic countries, courts have required the Church to accept legal responsibility for child abuse perpetrated in schools run by the Marist and Christian Brothers. In 2014, the Irish High Court dismissed defences such as those put in Ellis, that a contemporary individual could not represent an ‘unincorporated community of religious brothers’ to be liable for the crimes of the past, in order to vindicate survivors’ claims and award damage upwards of €300,000 (Brennan v Mullan at ; see also Hickey v McGowan & Cosgrave). English courts have ruled that Trustees of the Church may be held liable for the conduct of priests
(JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust). In Australia, the Royal Commission has recommended, among other things, that when institutions do not nominate an insured individual, an associated property trust should be deemed to be the defendant, and that all publicly funded bodies responsible for children should be required to be insured against child abuse claims (Commonwealth 2015d). Since 2013, the Greens Party has repeatedly introduced bills into Parliament to force the Catholic Church to incorporate in NSW (Roman Catholic Church Trust Property Amendment (Justice for Victims) Bill 2014 (NSW)). It is open to the Australian courts, governments and the Catholic Church to further justice for survivors in these ways.
Brennan v Mullan  2 JIC 1802
Erlich v Leifer  VSC 499 (16 September 2015)
Hickey v McGowan & Cosgrave  1 JIC 2405
JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust  EWCA Civ 938
New South Wales v Lepore  HCA 4 (6 February 2003)
PAO, BJH, SBM, IDF and PMA v Trustees of the Roman Catholic Church for the Archdiocese of Sydney  NSWSC 1216 (19 October 2011)
Prince Alfred College Inc v ADC  HCA 37 (5 October 2016)
R v Fletcher  NSWCCA 338 (23 September 2005)
R v Ridsdale  VSC 145 (4 April 1995)
S v The Corporation of the Synod of the Diocese of Brisbane  QSC 473 (7 December 2001)
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis  NSWCA 117
(24 May 2007)
Wilson v Department of Public Prosecutions (NSW)  NSWSC 1458 (14 October 2016)
Crimes Act 1900 (NSW)
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[*] Senior Lecturer, Macquarie Law School, Macquarie University NSW 2109 Australia. Email: firstname.lastname@example.org. I am highly grateful for the time and expertise shared with me by legal representatives in the conducting of this research, and for the research assistance of Olivia Ronan.
[†] Throughout this comment I use the term ‘survivor’ to refer to plaintiffs; however, I also occasionally use the term ‘victim’ to refer to those who did not survive.