KIERAN TAPSELL. The Royal Commission, Religious Liberty and the Jehovah’s Witnesses

A more difficult issue is the Jehovah’s Witnesses’ practice of “shunning” those who decide to leave the organisation as adults because of sexual abuse. It may be that the Commission is left with no other alternative but to condemn it as cruel. Quite apart from Church/State separation issues, legislation can be effective to overrule Jehovah’s Witnesses wishes that their children not have blood transfusions, but it is a blunt and useless tool to make them love their neighbour.  

In a contribution to this blog on 12 October 2016, I raised the issue of whether the Royal Commission into Institutional Responses to Child Sexual Abuse could criticise the doctrines and laws of religious faiths without impinging on freedom of religion and the separation of Church and State enshrined in the Constitution. A vigorous commentary followed: http://johnmenadue.com/?p=7997

My view of the matter was that because a Royal Commission can only make recommendations, any criticism of Church doctrines and practices contributing to child sexual abuse did not offend the separation of Church and State because the Churches can ignore the recommendations. After all, Churches habitually make recommendations about what should or should not be in civil laws, and no one, to my knowledge, has seriously suggested that the separation of Church and State prevents them from doing so.

The five metropolitan Catholic archbishops who gave evidence to the Royal Commission on 24 February 2017 welcomed any recommendations from the Commission for changes to canon law which would be in the best interests of children. Not every canon has a doctrinal basis, but some, like the governing structure of the Church, undoubtedly do. Whether the Church adopts any such recommendations is entirely a matter for it.

In October 2016, the Royal Commission issued a report in Case Study 29 on the responses to sexual abuse by the Jehovah’s Witnesses which suggests that the Commission has already adopted the view that recommendations for change to Church rules and practices do not offend the separation of Church and State.

While there are clear theological differences between the Catholic Church and the Jehovah’s Witnesses, some of their structures are remarkably similar. They are both international organisations whose beliefs and laws are controlled from Rome and New York respectively.

The Jehovah’s Witnesses have no pope, but they do have a Governing Body of elders who look to Jehovah (God) and Jesus Christ for direction in all matters. They provide definitive and authoritative interpretations of the Scriptures, and develop policies and laws that are sent out to the various national branch offices, in the same way as popes do with encyclicals and canon law.

In Case Study 29, the Royal Commission examined the experience of some survivors of sexual abuse within the Jehovah’s Witness organisation. Its findings were that the Jehovah’s Witnesses did not respond adequately to child sexual abuse allegations, and did not adequately protect children from the risk of abuse. Unlike the Catholic Church, the Jehovah’s Witnesses had no equivalent of a “pontifical secret” laid down in its internal laws, but its practice of not reporting to the civil authorities had the same effect.

Like the Catholic Church, the Jehovah’s Witnesses do have an internal disciplinary system, but theirs is hampered by what became known as the “two witness rule”, based on Matthew 18:16 and Timothy 5:19. It was described by Counsel Assisting the Commission Angus Stewart SC as: “…an inflexible requirement that there be at least two eyewitnesses to an incident of child sexual abuse, or two or more witnesses to a different incident of child sexual abuse.”

Canon 1791 of the 1917 Code of Canon Law also imposed a “two witness” rule, but the Catholic Church’s literal interpretation of Matthew and Timothy was modified by Pope Pius XI’s 1922 Instruction Crimen Sollicitationis for the very practical reason that soliciting sex in the confessional, child sexual abuse, sodomy and bestiality, dealt with by that Instruction, would almost invariably not have a second witness. A flexible interpretation of Matthew and Timothy is now enshrined in Canon 1573 of the 1983 Code of Canon Law.

In Case Study 54, heard on 10 March 2017, the Jehovah’s Witnesses were called back to the Commission to see how they had complied with the Commission’s recommendations. Counsel Assisting said that in many respects the Jehovah’s Witnesses had failed to implement the recommendations of the Royal Commission.

Of particular interest to the issue of religious liberty was the Commission’s recommendation that the Jehovah’s Witnesses revise the two witness rule. On 17 March 2017, Terrence O’Brien on behalf of the Jehovah’s Witnesses told the Commission that revision of the two witness rule had been considered, but it could not be revised because it was founded on Scripture.

The issue of religious liberty could arise squarely if State governments legislate to deal with the problem posed by the two witness rule. State prosecution of child sexual abuse can be dealt with by comprehensive laws requiring mandatory reporting. The Jehovah’s Witnesses accepted that they had to comply with all reporting laws and no Church/State issue arises from them.

The disciplinary regimes of Churches become relevant where the State has decided not to prosecute because of lack of evidence, or the accused has been acquitted. Because of the different standards of proof required by civil law for criminal prosecutions and disciplinary proceedings, it is not unusual for professional people to be deregistered despite acquittals. The Royal Commission’s Case Study 14 (Nestor) provides an example of that in the area of child sexual abuse within the Catholic Church.

The solution to the problem may well be the extension of reportable conduct schemes such as the one authorised by Part 3A of the Ombudsman Act 1974 (NSW) to enable the Ombudsman or some other State authority not only to carry out an investigation into “reportable conduct”, but to make restrictive orders on particular people dealing with children, so as to overcome the inadequacies of the two witness rule. It is hard to see how this would interfere with the separation of Church and State. The Jehovah’s Witnesses could still believe that two witnesses were required before their disciplinary sanctions can be imposed, but the State could independently impose restrictions after conducting its own inquiry.

A more difficult issue is the Jehovah’s Witnesses’ practice of “shunning” those who decide to leave the organisation as adults because of sexual abuse. It may be that the Commission is left with no other alternative but to condemn it as cruel. Quite apart from Church/State separation issues, legislation can be effective to overrule Jehovah’s Witnesses wishes that their children not have blood transfusions, but it is a blunt and useless tool to make them love their neighbour.

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

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Kieran Tapsell is a retired civil lawyer, author and translator.

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