Kieran Tapsell. Two reports from the Child Sexual Abuse Royal Commission.

The Royal Commission into Institutional Responses to Child Sexual Abuse published two reports on 19 December 2014. The first related to Case No. 11 dealing with four institutions run by the Christian Brothers Congregation in Western Australia from the 1920s until the 1980s for wards of the State, child migrants and children sent there privately. It made findings about the poor treatment and education of the boys, the many instances of sexual abuse by 16 named Christian brothers and 2 priests, the lack of supervision by the leaders of the Christian Brothers and by the State, the failure to report these crimes to the police and to dismiss these brothers.

The second report was of Case No. 14 concerning Fr John Nestor in the Diocese of Wollongong where the issue was the inadequacy of the Church’s disciplinary system and the effect of the conflicts between canon law and the local Church protocol, Towards Healing. In the result, it took 15 years to dismiss a priest against whom many complaints of abuse had been substantiated.

The Christian Brothers in Western Australia

In the Western Australia case, the Commission found that there were continuous allegations of sexual assault since the 1930s brought to the attention of the Christian Brothers, yet only one brother was ever convicted of sexual assault. The Brothers regarded these assaults as “moral lapses” or “weakness”, rather than as criminal offences. There was provision under canon law and the Congregation’s Constitution to dismiss such offenders, but they were not used. If there was a dispute over the facts, the brother’s word was usually accepted over that of the student, and if the facts were admitted, then the matter was dealt with by warnings and shifting the brother to another institution or school, despite the Congregation being aware of the likelihood of repeat offences. The Western Australian Director of Public Prosecutions refused to prosecute for a variety of reasons, and this raised the systemic issue of the capacity of the criminal justice system to deal with child abuse in that State.

Much of the report is taken up with questions of compensation for victims, redress schemes and problems with the criminal law in Western Australia. In dealing with the 96 claims for compensation, the Christian Brothers relied on the same technical legal points as the Archdiocese of Sydney in the Ellis case. There were 775 allegations made by 531 complainants against the Christian Brothers throughout Australia, including the Western Australian cases.  When the Congregation agreed to pay compensation, the average payout was a little under $50,000, and for the Western Australian institutions it was $36,700. The Report is not entirely negative, and describes the reforms instituted by the Congregation since the 1990s. No recommendations were made in terms of redress schemes or changes to the criminal law, as these are no doubt national issues which one assumes will be addressed by the Commission on a national basis after it has dealt with all of its case studies.

The Nestor Case

Fr John Nestor was a priest of the Wollongong diocese. Complaints of sexual abuse or inappropriate behaviour were first made against him as far back as 1993. He was eventually dismissed from the priesthood 15 years later by order of Pope Benedict XVI on 17 October 2008.

Nestor was convicted by a magistrate on 20 December 1996, and sentenced to 12 months jail for aggravated sexual assault. His appeal was allowed by the District Court on 27 October 1997, the judge not being satisfied beyond reasonable doubt of the assault, but was satisfied about Nestor’s other inappropriate behaviour. In the meantime, Bishop Wilson had received further complaints about Nestor.  To his credit, Wilson considered that Nestor should not be restored to the ministry because he continued to be a danger to children. Wilson, a canon lawyer, used the investigatory procedures laid down by Towards Healing, considering that it complied with his obligation to conduct a preliminary investigation under canon 1717 of the Code of Canon Law. Anyone interested in the labyrinthine processes of the Vatican and the confusion over which of its Congregations had jurisdiction can read the report. It is Dickens’ Bleak House played out in Rome.

The Royal Commission, in a masterful understatement, said: “This case study shows that canon law procedures for preventing priests from exercising their priestly ministry and ultimately having them dismissed from the priesthood are very complex.” The report highlights a number of problems with canon law and its relationship with local protocols such as Towards Healing. Professor Patrick Parkinson had advised the Australian bishops that a protocol that conflicts with canon law has serious problems. The Cumberlege Commission in Britain came to the same conclusion. The Nestor case is more proof of the pudding.

The Commission noted that the Nestor case was subject to the “pontifical secret”, a solemn “obligation to preserve it forever”, which even prevents a bishop from announcing whether the priest had been found guilty or innocent. However, in this case the Vatican had consented to Bishop Ingham making such an announcement. His failure to do so is the one criticism made of Australian Church personnel in the report. The big problem was canon law and the Vatican’s byzantine procedures and delays.

The conflict between Towards Healing and canon law is still a significant problem within the Church’s disciplinary system because the 2010 version of Towards Healing requires reporting of all allegations of sexual abuse to the civil authorities, but the dispensation from the pontifical secret only applies where there is a domestic law requiring reporting. Only two States have comprehensive reporting laws, NSW and Victoria. The easiest solution would be for the Holy See to comply with the request of the United Nations Committees on the Rights of the Child and on Torture to abolish the pontifical secret in matters of child sexual abuse, and to require mandatory reporting under canon law, something which it has so far declined to do.

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

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