In his video appearance before the Royal Commission into Institutional Responses to Child Sexual Abuse on 21 August 2014, the former Archbishop of Sydney, Cardinal George Pell, insisted that the Catholic Church should be treated like every other organisation in society. It should not be held responsible for the crimes of its priests in the same way as the “ownership or leadership” of a trucking company is not responsible if one of its drivers picks up a hitchhiker and molests her.
Pell conceded that “if in fact the authority figure has been remiss through bad preparation, bad procedures or been warned and done nothing or insufficient, then certainly the church official would be responsible.”
Pell’s analogy revealed the fatal flaw in his own argument the moment he used the word “company”. If a trucking company had been remiss as he described, and people were injured as a result, the trucking company would be liable. Those injured would have access to the company’s assets to meet any judgment, even if its directors or officials were dead or had no assets.
Pell spent over $750,000 on lawyers in the Ellis case to prove that the Catholic Church was not like his trucking company, but is an unincorporated association that could not be sued. All of its billions are tucked away in a corporate trust that does nothing else than hold property. The only person who could be sued in that case was Cardinal Freeman who had been warned about Ellis’s abuser, and yet let him continue as a priest. Cardinal Freeman was incapable of being sued because he was resting in peace in the crypt of St. Mary’s Cathedral.
Earlier, Justice McLellan suggested to the Church’s solicitor, Richard Leder, that the structure of the Catholic Church put it in a “privileged position”. Leder agreed that the Church’s position was different to that of a company, and that it was “anachronistic.” On the other hand, the cover up of child sex abuse by the Church is not at all anachronistic, but very modern.
For 1500 years, the Church accepted that priests who sexually assault children should be punished by more than restrictions on ministry; they should be dismissed from the priesthood and then punished in accordance with the civil law. That was written into canon law by Church decrees, particularly from the 12th to the 16th centuries.
In 1917, when the Church codified its canon law, it threw out those decrees. Five years later Pope Pius XI, in effort to keep a lid on scandal, issued a decree imposing “the secret of the Holy Office” on all information that the Church obtained in its internal investigations of such crimes. Bishops were also required to try to “cure” the priest before dismissing him. The end result was that since 1922 until very recently, clergy child sex abusers were not reported to the police, and, as Cardinal Pell conceded, it was “almost impossible” to dismiss a priest under canon law. Canon law even gives the priest a Catch 22 defence: a priest cannot be dismissed for paedophilia, because he is a paedophile. The end result was that all over the world, these priests were shifted around where they continued to abuse children.
The Murphy Commission in Ireland found that the “structure and rules of the Catholic Church facilitated” the cover up of sexual abuse by clergy in the Archdiocese of Dublin, and the evidence before the Royal Commission so far is that the situation was no different here. Yet Pell insists that his Church should be able continue with its privileged position in society, unlike the trucking company whose assets would be available to meet any judgment because of its “bad procedures” and “warnings”.
Cardinal Pell told the Commission that the Church accepted a “moral responsibility” for the abuse because it had been committed by “officials of the Church”, but that did not mean that it had to abandon its “common law rights”. The average payout under Pell’s Melbourne Response was $33,187. Bishop Bill Morris of Toowoomba refused to rely on the Church’s common law rights. The average payout was $382,433.
The Good Samaritan came to the aid of a man left in a ditch by robbers after a priest and a Levite had passed him by. The priest and the Levite were acting within their common law rights to leave him there. In this modern re-run of the parable, the man was left in the ditch not by robbers, but after being sexually assaulted as a child by colleagues of priests, bishops and popes most of whom acted in accordance with their common law rights, and passed him by, or threw him a few shekels.
Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (ATF Press 2014)