Australian born lawyer Geoffrey Robertson QC has published a book calling for Pope Benedict XVI to be prosecuted for crimes against humanity with regard to the alleged sexual abuse of minors by members of the Catholic Church. According to Sydney barrister Michael McAuley, Robertson's case is flawed.
|McAuley: Robertson's book is an 'appeal to paranoia'|
However, Robertson's call needs to be viewed in a much wider context.
At the District Court in Sydney, over 50 per cent of the trials taking place relate to allegations of sexual assault. Most of these trials concern persons who have no religious association. Many trials involve 'word on word', and some relate to offences said to have occurred many years ago (historic sexual assaults). The complainant is often a minor, or was a minor at the time of the alleged offence. Sexual offences usually involve only two persons - the perpetrator and the victim - often with no witness, and no or little corroboration. To establish such offences 'beyond reasonable doubt' is a big ask and there is a relatively low rate of conviction.
Therefore, it is little wonder that many persons, who have been the subject of unwanted sexual acts, make no complaint to anyone, let alone the police. Embarrassment, uncertainty, fear of being subject to scrutiny, reluctance to give evidence, concern for reputation, unfamiliarity with legal processes, lack of confidence and shame are all reasons for reluctance amongst victims to make a complaint.
Of the complaints that are made, only a minority result in the conviction of the offender. Any system of law worth its name has provision for the criminal prosecution of offenders as well as civil proceedings, but not every victim wishes to pursue a legal remedy.
In recent years, as a society, we are perhaps more aware of the existence of unwanted sexual acts. Laws such as Part 3A of the Ombudsman Act 1974 provide for reporting of what is referred to as 'reportable conduct'. While unwanted sexual acts come in many forms, there is perhaps greater popular knowledge and concern regarding the activities of paedophiles than in the past.
"Robertson's book contains page after page of glib comments"
No matter how good the precaution, it is impossible to prevent paedophiles gaining access to children through youth organisations. Often persons with such tendencies are seen to be particularly capable of working with children - and effectively win the confidence, not only of the children, but their parents - and the organisation's administrators. If a complaint is made, it is greeted with disbelief, even hostility. The victim may suffer doubly by reason of those who are outraged at the complaint.
There has also been a lack of awareness that perpetrators have very high rates of recidivism. Perhaps there was a tendency to think perpetrators could somehow reform themselves. Hence, it was thought that the solution involved a 'new start' for the perpetrator. There was a lack of awareness of the compulsive nature of paedophilia.
It is in this context that Geoffrey Robertson's book needs to be assessed. Robertson, who is an unusual phenomenon for a lawyer - a media star - accepts that the Pope rejects sexual abuse, but alleges that the Church acts to prevent complaints of unwanted sexual acts being made to the police, preferring to deal with complaints under canon law. This allegation is baseless and silly. The Church has no means of preventing the victims of unwanted sexual acts complaining to the police.
In NSW, since the enactment of Part 3A of the Ombudsman Act, the Church is punctilious in notifying reportable allegations, or reportable convictions. Reportable allegations require an independent investigation. The aim of the legislation is to ensure independence, objectivity and transparency. There is similar legislation in other states.
Moreover, Towards Healing: Principles and procedures in responding to complaints of abuse against personnel of the Catholic Church in Australia, authorised by the Australian Bishops Conference and Catholic Religious Australia, encourages complainants to contact the police.
That many complainants do not do so (and have not done so in the past), is not because of actions by the Church.
In many ways, youth organisations (including schools) are amongst the victims of the actions of paedophiles. They are taken in by persons who are highly devious and who undermine the objects of the organisation by which they are engaged.
Without doubt, individual bishops and heads of religious orders have, on occasions, failed to deal with complaints as strongly as they ought. What Geoffrey Robertson ignores is the difficulty of the situation commonly confronted. What was the information available at the time? From whom did it come? Was it corroborated? Was it disputed? What possibilities were available for independent investigation? What was the attitude of the victim, and of the victim's parents, to the possibility of publicity associated with investigation?
The reality is that Pope Benedict XVI has reformed the Church's procedures for dealing with sexual abuse and he has personally met with victims. He has written an encyclical to the Church in Ireland, and instituted investigations of dioceses and religious orders, in an attempt to ensure the Church's activities are conducted with integrity and respect for all.
Even though the Pope's actions and that of the Church have not always satisfied victims, Robertson's book contains page after page of glib comments. He complains, for instance, of an 'elderly Catholic lawyer' conducting investigations. What precisely is wrong with that? Provided the elderly Catholic lawyer acts in a fashion which is objective, independent and transparent, what matters?
Elsewhere, Robertson is repeatedly guilty of making sweeping statements. For instance, he accuses the Church of operating a 'world-wide sanctuary for child abusers'. This requires evidence which Robertson simply does not come up with. Much of his book is an appeal to paranoia.
Robertson ignores the reality that wherever it is, the Church is subject to the laws of the land, including the laws as to crime, civil wrongs and reporting of complaints. The Church invariably seeks to act in accordance with the law. Where there has been a failure to act, such failure often reflects a failure of the law of the particular place, and a broader cultural unawareness of the risks of predatory sexual conduct.
Robertson provides an interesting read, but one which is unbalanced, blind to complexity, and condemns actions by others with the benefit of hindsight not available at the time to the person so readily condemned.