KIERAN TAPSELL. The Royal Commission and Religious Liberty

 

Three law professors, Michael Quinlan and Keith Thompson (Notre Dame) and Frank Brennan (ACU) have criticized any attempt by the Royal Commission into Institutional Responses to Child Sexual Abuse to discuss the doctrines and canon law of the Catholic Church on the grounds that such a discussion would breach religious liberty and the separation of church and state.

Quinlan, in a submission to the Royal Commission on Issues Paper No. 11, states that freedom of religion excludes assessment by the state of the legitimacy of religious beliefs or the ways in which they are expressed. A Commission finding that a religious belief contributed to child sexual abuse would not involve an assessment of the belief or its expression. It would only make a finding on causation. Quinlan says that it would be futile criticising Catholic doctrine, canon law, clericalism and celibacy because they are “deeply scriptural”, and one cannot be changed without affecting the other. He doesn’t explain how canon law’s provisions for dealing with sexual abuse by clergy are “deeply scriptural.”

Professor Quinlan argues that celibacy is not a factor in child sexual abuse, and he cites various studies in support. He asks the Commission to make a finding that there is no such connection, but if the Commission took a different view, he believes that religious freedom “ought militate against recommendations of change to the celibacy requirements.” Royal Commissions have no power to change any rules, private, state, national or international. They can only make recommendations, which can be ignored (and often are). But Quinlan claims that religious liberty prevents the Royal Commission from even criticising and making recommendations about celibacy. It is hard to see how religious liberty could be affected by findings and recommendations which the Church can ignore.

Associate Professor Thompson in his submission on Issues Paper 11 states that “to the extent that churches are also autonomous entities, nothing that the Commission may say about internal church governance is likely to have practical utility.” If that is the case, anything the Commission says about Swimming Australia’s internal governance which may have led to sexual abuse or its cover up is also useless. It is also an autonomous entity. He further says: “certainly findings and recommendations that criticize churches may influence public opinion, but it is submitted that such criticism is unconstructive.” It will only be unconstructive if the Church refuses to change anything. Thompson states that the separation of church and state requires that “no one church institution should dictate Australia’s political agenda, and the Commonwealth should not interfere in church governance.” But churches continually express their opinions of what the law should be, and likewise a Royal Commission is entitled to express its views about church structures and rules which contribute to child sexual abuse. Neither expression of opinion breaches the separation between church and state.

On 23 September 2016, Professor Brennan criticized the Commission for making a finding in the Neerkol case that various Church figures in Rockhampton lacked “compassion” towards the victims. He says it stepped into what he calls the “holy ground of religious belief”. The 1994 Church protocol required the diocese to adopt “pastoral action which is compassionate” in dealing with victims. The Commission found that in many instances the Church did not comply with its own protocol in that its response was not “compassionate”. The Commission was doing no more than courts do every day in making determinations of whether particular conduct complied with a statute, regulation, contract, policy or protocol. Compassion is not peculiar to Christianity, and can have a meaning in a protocol without reference to theology. Compliance with the Church’s own protocols was part of the “systemic issues” on which the Commission is required to focus.

Brennan states: “the Commission must highlight failures in the Church to protect children and recommend standards of compliance for protection in accordance with Australian community values. But the church must be left to its own resources to see how it can best comply consistent with its own theology and doctrine.”

According to this view, the Royal Commission can make findings on how the Church has failed to follow accepted community standards, but is precluded from finding that the Church’s structures, doctrines and laws contributed to that failure. This is contrary to the Commission’s terms of reference requiring it to examine “systemic issues” and causes. In Brennan’s view, it would not infringe religious freedom for the state to pass legislation requiring blood transfusions for the children of Jehovah’s Witnesses who might die without them, but a Royal Commission charged with investigating a high death rate amongst those children could not make a finding that it was caused by that particular religious belief. Such a finding would not prevent the Witnesses from continuing to believe that blood transfusions are contrary to scripture. Findings by this Royal Commission that the structures and rules of the Church were factors in the sexual abuse of children would not stop the Church ignoring recommendations to change them.

The Murphy Commission Report in Ireland found that the structure and rules of the Catholic Church contributed to the cover up in the Dublin archdiocese. In response to that Report, Pope Benedict in his 2010 Pastoral Letter to the People of Ireland ignored that finding and blamed the bishops for the cover up. There could not have been a better example of the exercise of religious liberty by the Supreme Pontiff in the face of criticism by a Commission of Inquiry.

Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (ATF Press 2014)

See also submission that, together with colleagues, we made to the Royal Commission. Our submission highlights the need to examine ‘systemic’ issues in the Catholic Church.  http://www.johnmenadue.com/religion/html_files/Royal_Commission.html

 

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Ed

Tapsell, who believes in moral relativism, does not have any moral authority to say anything is right or wrong, nor does anyone who believes in moral relativism – moral relativism and right or wrong cancel each other out.. Only those who believe in an objective Truth, can have moral authority – in theory at least. Until someone can convince me that moral relativism has authority or even logic, those who are moral relativists are mere sounding gongs.

Ed

Mind you, the Church itself, while claiming Absolute Truth, has itself, at least culturally (or in real life) taken on moral relativism as all their treatment of the sexual abuse scandal and the general sexual activity of its clerics show: Celibacy is relative; harm is relative; covering up is relative; “All are punished”.

Kieran Tapsell

I have no idea where you get the idea that I am a “moral relativist” (I am not, and have never claimed to be, at least in the way I understand the term). A true moral relativist would say that the Church was entitled to cover up child sexual abuse because that is part of its culture which should be respected. That has hardly been my position.

Ed

A true moral relativist would also pick and choose what it is they want to defend or reject, based on their own version of truth. Not sure if I understand this correctly, so, correct me if I am wrong: You (Kieran) are an ‘outsider’ of the Church, like the Royal Commission, and believe in the separation of Church and State, but you also believe that the State (and you) has the right to influence/change or interpret Catholic theology and doctrine? Also, I know you have to believe this because you have written a book on it, but can I ask… Read more »

Patricia Boylan

The Royal Commission into Institutional Responses to Child Sexual Abuse would be obliged to investigate the Catholic Churches ‘running a parallel system of criminal justice unbeknownst to and deliberately hidden from the public, police and parliaments, in which the guilty went unpunished and the lips of the victims were sealed – by forced oaths and confidential legal settlements’. As Sydney born Geoffrey Robertson QC explains the ‘plain facts that are now emerging [across the world] show that sexual abuse of children by priests in the Catholic Church has been at a level considerably above that in any other organization, and… Read more »

Stephen K

Once again, I agree with Kieran Tapsell. But to press the point: an inescapable problem with Father Frank Brennan’s approach is that his complaint ends up sounding like ‘you shouldn’t criticise the Church because others are at fault too.” For an institution claiming to be vested with divine dogmatic and infallible moral authority, this defence can hardly avoid being seen as contemptible and is extremely disappointing. That there are Church-employed individuals – individual priests, and religious – who, at particular critical times, displayed compassion and a sense of justice in victims’ behaviour does not in any way mitigate or deflect… Read more »

Frank Brennan

No fair minded, or even rational, reading of my many utterances on the royal commission could be construed as ‘sounding like “you shouldn’t criticise the Church because others are at fault too.”‘ This just shows what a difficult realm of public discourse this is. Yes, I am a Catholic priest. But I have constantly being saying, even before the royal commission was called, that the Church needs to be called to account and that the Church has needed state assistance to get its house in order. I draw the line at the state presuming to rule on theology and doctrine.… Read more »

Frank Brennan

The Neerkol case study of the royal commission covered the church and the Queensland government. Most of the report focuses on the church. Kieran Tapsell says, ‘The Commission was doing no more than courts do every day in making determinations of whether particular conduct complied with a statute, regulation, contract, policy or protocol.’ Really? Unlike a court, I think the commission was applying a very different test to the church than it was to the government. To the church which went to great lengths to deal with the victims, the commission applies the ‘compassion test’. To the government, it simply… Read more »

Kieran Tapsell

Frank, In suggesting that the Royal Commission should apply “the same standards…to the church as to the state, regardless of the particular motivational beliefs or ideals of the church”, you are asking it to ignore one of the core requirements of its terms of reference, namely to focus on systemic issues (Clause f). “Compassion” was not just a motivational belief or Church ideal, it was a term written into the 1994 protocol which everyone in the Church was supposed to follow. Clause h further requires the Commission to consider such protocols and how they protected or failed to protect children… Read more »

Frank Brennan

Yes, very wrong Kieran, and not for the first time. My point is that ‘Catholic theology and doctrine [are] beyond the competence of individual commissioners; it is beyond their jurisdiction’. I have said, ‘Of course, the commissioners have not only the right but also the duty to report in light of the evidence on how all institutions, including the Catholic Church, might comply with appropriate standards for the protection of children.’ I concluded, ‘The commission must highlight failures in the Church to protect children and recommend standards of compliance for protection in accordance with Australian community values. But the church… Read more »

Ed

‘We are satisfied the Diocese and the Sisters settled compensation claims with former residents despite legal advice they were in a strong position to defeat the claims because of the age of the claims. The Diocese and the Sisters contributed equally to the monetary amounts.’ Oh, if only this were true for the ‘fathers’ as Sr Angela Ryan calls them. (think Ellis to name but one). And let’s not forget the Brothers as well. No, there is still too much resistance from too many angles to believe that ‘compassion’ is in any shape or form, is the norm for the… Read more »

Patricia Boylan

One only has to review Catholic Diocesan Bishop’s obligation to the Vatican under canon law and its conflict with Australian laws (including other countries). Cardinals, bishops, prelate superiors, major and minor officials, experts and ministers of lower rank are under obligation of observing the papal secrecy. Research indicates the ‘trickle down’ effect impacts on diocesean church and education management of clergy sexual abuse. In 2013, the International Criminal Court in The Hague decided not to investigate or prosecute former Pope Benedict XVI and three other leaders of the Roman Catholic Church on allegations of covering up sexual abuse of children… Read more »

Stephen K

Absolutely. If beliefs, doctrines, laws, policies, practices, selection criteria – whatever – can be identified as a cause of an institution’s poor response to abuse, then it is clearly within the Royal Commission’s scope to say so. Indeed the characterisation of a Church’s beliefs and doctrines as “holy ground” and the implication that the Church would be justified in refusing to accept any criticism of these, are themselves examples of the kinds of thinking that Church leaders appear to have relied upon to hide or protect or support offenders because they are simply a different arrangement of words that mean… Read more »

Lynne Newington

It doesn’t do much for Royal Commissioner Peter McClelland in my opinion.
The church establishment is quick to run with pushing the government for a top up with financial redress [icluding TJH CEO Francis Sullivan] for crimes they committed considering the massive tax exemptions it receives and charitable status, and as yet no bishop has been charged for covering up for guilty clergy, the blame at the feet of deceased.