FRANK BRENNAN. Let’s be less shrill about Church-State relations

Apr 5, 2018

I had the good pleasure of celebrating Easter masses out in the country — Adaminaby and Nimmitabel in the Snowy country. At Adaminaby we had a full church and a very happy baptism. At Nimmitabel, the numbers were very modest but we delighted in the peace and tranquility of the Easter full moon. Upon returning to the city I was greeted by the Murdoch headline: ‘Christianity under attack: Archbishop Anthony Fisher’.

Our Dominican preacher archbishop definitely proclaimed a strong Easter warning. In part he was responding to the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, and in part to some of the 16,000 submissions to the Ruddock review on religious freedom which have been published on the government website.

Being on the Ruddock panel, it would of course not be appropriate for me to comment on any particular submissions at this time. But I was shocked by the Archbishop’s shrill tone when he said, ‘we cannot take the freedom to hold and practice our beliefs for granted, even here in Australia. Powerful interests now seek to marginalise religious believers and beliefs, especially Christian ones, and exclude them from public life … We may not always be as free as we are now to evangelise and baptise as Jesus mandated at the first Easter.’

During lent we had the prime minister Malcolm Turnbull venting his frustrations with the states being slow to sign up to the proposed national redress scheme for the victims of child sexual abuse in institutions. Turnbull turned the spotlight on the churches rather than the recalcitrant states, saying: ‘If a church or a charity or an institution doesn’t sign up, I hope they will be shamed. We’ll be using the megaphones we have to encourage them to sign up, and I hope you all are too. I’m sure that if it’s a church, their parishioners and members of their congregations will be doing so.’

This shrill use of megaphones by the leaders of church and state in their respective pulpits is not helpful. In the wake of the royal commission, there is a lot of painstaking work to be done ensuring that all institutions are child safe, and ensuring justice for survivors. Though the royal commission ran for five years, it has left a lot of unanswered questions. Before the royal commission was set up, many of us were calling for state assistance to the Catholic Church because the statistics on abuse in the Church seemed to be off the scale and needing clear explanation and corrective action.

Speaking at the Law Justice Awards dinner in Parliament House Sydney back in October 2012 before Julia Gillard had decided to set up a royal commission, I had said to the assembled lawyers and politicians, ‘Whatever our religion or none, whatever our love or loathing of the Catholic Church, what is to be done in the name of law and justice? Clearly, the Church itself cannot be left alone to get its house in order. That would be a wrongful invocation of freedom of religion in a pluralist, democratic society. The state may have a role to play. As our elected politicians prudentially decide how best to proceed, they need assistance from lawyers committed to justice, not lawyers acting primarily to protect the Church or to condemn it.’

At that time, Professor Patrick Parkinson, an acknowledged national legal expert in the field, had conducted an initial study comparing reporting rates of abuse in the Catholic and Anglican Churches. I said, ‘If the Anglican and Catholic figures are statistically comparable, we all need to know the explanation for the discrepancy. If there be particular problems in the Catholic Church, they need to be identified for the good of all citizens, not just Catholics.’

Five years on, we know a lot more, but there’s still much we don’t know about the figures. 35.7 per cent of survivors who came forward and who were interviewed by the royal commission said that the abuse took place in an institution managed by a group associated with the Catholic Church. 32.5 per cent of survivors who came forward and who were interviewed by the royal commission said that the abuse took place in a government-run institution. 22.4 per cent of survivors who came forward and who were interviewed by the royal commission said that the abuse took place in an institution managed by a group associated with a religious institution other than the Catholic Church. 10.5 per cent of survivors who came forward and who were interviewed by the royal commission said that the abuse took place in a non-government, non-religious institution.

Gerard Henderson has made the point that ‘due to the systemic Catholic education system, which was not reflected in other faiths, Catholics must have accounted for around 80 per cent of children educated in a religious setting in Australia. Catholics also had a much higher percentage of orphanages and hospitals than like institutions which operated in a religious setting.’ He asked Commissioner Robert Fitzgerald if the royal commission had drilled down into these figures. Fitzgerald replied: ‘Regrettably there are no historic prevalence studies in Australia but we recommended such be undertaken in the future.’

It’s a bit like what happened with the Royal Commission into Aboriginal Deaths in Custody. An Aboriginal walking down the street was ten times more likely than any other Australian to die in custody. But once in custody, a prisoner, whether Aboriginal or not, was just as likely to die in custody. It was just that an Aboriginal was ten times more likely to be in jail in the first place. How much more likely was it in the past that a child would be abused in a Catholic institution than in a non-Catholic institution? How did this rate compare with the likelihood of a child being in a Catholic institution in the first place? It would have been helpful to have the answers to these questions.

Robert Fitzgerald spoke recently on a panel at a Catholic Social Services conference. A Catholic, and still a Catholic despite all he has heard and experienced these last five years, he said:

‘It is clear that in so many institutions that when children needed love, they were met with hostility. There was simply no love present in their lives. When they returned to the Church to seek justice, they were met with indifference, hostility and unjust practices. And instead of a Church walking humbly with its God based on the messages of the gospel they found an arrogant Church. A church that placed its own reputation above the interests of those victims and survivors. And did so knowingly and willingly in a way as to cause further harm to many of those victims.’

Much of the media attention at the royal commission case studies relating to the Catholic Church focused on the failure of church leadership back in the 1970s and 1980s and on the secrecy within the Church, precluding the reporting of abuse to state authorities.

The good news for everyone is that since then, state authorities, especially police forces and child protection agencies have changed. The media and politicians are now more alive to the issues. Even if there had been little change in the Church, it would no longer be possible for the Church authorities to act as they did a couple of generations ago. This is not a reason for nonchalance. But it should give us pause before we become too shrill about changes in church-state relations. There is now a need to look more dispassionately at what reforms are being proposed.

During the royal commission, there was a lot of simplistic media coverage which left the viewer thinking that all would have been well if only church authorities had reported matters to the police or if only priests were not bound by the seal of the confessional. But the evidence was altogether different. In fact, the commission in its case studies reported only one case of a child sex abuser using the confessional to try and escape the processes of the law. Even that case would not be covered by the seal of the confessional, given the improper purpose of ‘the penitent’. The usual case considered by the royal commission was not a penitent confessing but a victim disclosing abuse by another.

Fr Ian Waters, the distinguished canon lawyer who appeared before the royal commission to explain the operation of the seal of the confessional, has now written: ‘It is simply quite incorrect to say, “Whatever I tell a priest in a confessional will never be revealed by him to anyone”. More accurately, (the canon law) states that whatever sins of a penitent confessed by the penitent to the priest during a celebration of the sacrament of penance must never be revealed by the priest to anyone — a very different matter.’

And what’s more, it hardly if ever happens. Pedophiles don’t think they have committed any wrong. Even if they were to confess, they are more than likely to describe their offending in very generic terms. And if they really did want to confess without being reported to the authorities, they (like any other penitent) could present for confession in a confessional behind a veil where neither the victim’s identity nor theirs would ever be revealed.

On the last day of the royal commission, Justice McClellan in his brief closing remarks made four poignant observations usually overlooked by those seeking simplistic solutions or explanations for the past wrongs specially of the Catholic Church:

‘Just over 8000 people have come and spoken with a Commissioner in a private session. For many of those people, it has been the first time they have told their story. Most have never been to the police or any person in authority to report the abuse.’

‘The failure to protect children has not been limited to institutions providing services to children. Some of our most important state instrumentalities have failed. Police often refused to believe children. They refused to investigate their complaints of abuse. Many children, who had attempted to escape abuse, were returned to unsafe institutions by the police. Child protection agencies did not listen to children. They did not act on their concerns, leaving them in situations of danger.’

‘There must be changes in the culture, structure and governance practices of many institutions.’

‘The number of children who are sexually abused in familial or other circumstances far exceeds those who are abused in institutions.’

It’s time for everyone to be a little less shrill in the public square while the painstaking work is done to consider the implementation of recommendations from the royal commission which are workable and principled. It’s not being shrill to say that not all recommendations are equally workable and principled. It’s time to ensure that all institutions are safe for children. That’s the state’s business. And it’s time for all states to get on board, and for governments to share details of the proposed redress scheme, so that churches can sign up for truth, justice and healing for victims.

Frank Brennan SJ is the CEO of Catholic Social Services Australia.

This article first appeared in Eureka Street

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