KIERAN TAPSELL. The Royal Commission and Religious Liberty

Oct 12, 2016


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.



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