Xenophon Has Done A Good Deed


Nick Xenophon has been widely criticised for his decision to name alleged rapist Monsignor Ian Dempsey under parliamentary privilege, both for acting unilaterally outside the justice system and for contravening the wishes of the victim, Archbishop John Hepworth of the Traditional Anglican Communion.

In an instance as complex as this — an alleged abuse of trust committed upon a teenager decades ago, in a tangle of secular and Church politics, with the insidious historical context of Catholic rape — there can be no pure moral position. Nothing can be gained from dismissing Xenophon as a vigilante, as immoral or as self-interested. He named Dempsey with full knowledge of the implications. When viewed in the context of ongoing revelations about Catholic child abuse, he should be given qualified applause.

It would be a mistake to treat Xenophon as an unwanted third party in a criminal matter between two individuals. According to Hansard (page 83), Hepworth was raped periodically by three different men, two of whom are now deceased. Two were priests at the time and one was a seminary student. This is a systemic problem, not just a rape of one person by three men. Xenophon’s defence of his actions — "parliamentary privilege exists for situations like these where systems have broken down" — shows he recognises this fact, and is not aping Derryn Hinch, stirring up mobs for ratings.

Xenophon delivered his ultimatum because he believed Monsignor David Cappo, who has stepped down from his appointment as head of the Mental Health Commission in the wake of the allegations, responded inadequately to the claims of rape. Xenophon says Hepworth complained in 2007 and in a written statement in 2008, but because he had not complained formally, no action had been taken on the matter, which was still in a preliminary stage. Further conflicting reports say he requested a formal investigation in November 2008, or at the latest, in February this year. 

Xenophon acknowledges this in Hansard, but says "… I was told by lawyers acting for the church that the appointed QC had not actually begun considering evidence". Dates aside, no significant steps have been taken towards achieving the two aims of the process — having the priest stood down from a position of authority because he is an alleged child abuser, and justice for the victim.

At least in the first case the Church should be hyper-sensitive to potential harm to both its congregation and image if allegations of abuse are not promptly followed up. Xenophon said as much: "As processes go, this seems fundamentally flawed or at least unacceptably haphazard. A proper process would include the immediate standing down of the priest in question…"

Critics say Hepworth should have gone to the police, and although Xenophon’s opinion on the matter is not mentioned in Hansard, Hepworth’s is on record: he didn’t want to, instead seeking reconciliation with the Church through its own internal policies. His status as global primate of the schismatic Traditional Anglican Communion complicates that process greatly. The sect wants to return to the Roman Catholic communion and Hepworth is in charge of negotiations with the Pontiff.

Despite the stigmatisation and shame often felt by rape victims, Hepworth is under incredible institutional and political pressure to negotiate the return to "sacramental unity". Christopher Pearson, a confidant of Hepworth’s, said so in his regular column for The Australian: "As he told me at the time, he also wanted to understand the scope and implications, especially for the TAC in its dealings with Rome, of such an inquiry."

To forgo justice through secular means is Hepworth’s choice, but most victims of church abuse don’t have access to a "specially tailored", to borrow Pearson’s term, internal process for reconciliation and must work with police. The age of many allegations, lack of evidence and trauma make these cases hard.

In addition, statistics on sexual assault convictions are dismal: from an estimated 15 per cent of all rapes that get reported, only 10 per cent result in a guilty conviction. However, significant numbers of clergy do end up being convicted, usually after filing a guilty plea. The Catholic sex abuse site Broken Rites has a list of convicted and investigated clergy that makes for grim reading. Getting offending clergy into a courtroom is paramount for even a narrow chance of success to be realised. In many cases, intentional and negligent behaviour stands in the way of victims doing so. 

If the justice system is hard for victims then the Catholic Church’s Towards Healing program is hell. The system processes instances of abuse, pays compensation and gives apologies but has been widely criticised as enforcing the Church’s interests against victims. Victims of sexual assault undertaking the process have allegedly been denied a support person and are made to waive future legal rights and sign confidentiality clauses. 

Towards Healing is funded by Catholic Church Insurances Limited (CCI). But CCI is in turn funded by payments from churches in the various dioceses, who have an obvious commercial interest in keeping premiums down. The practice of insuring against child abuse is well documented and not native to Australia.  Exasperatingly, Sister Angela Ryan, Towards Healing’s national director, is also the executive director of professional standards, the body that administers Towards Healing, and a former director of Catholic Church Insurances Limited.

Moreover, victims who wish to sue individual priests in civil claims face a difficult legal precedent. The Ellis decision, in which Cardinal George Pell managed to convince the NSW Court of Appeal that he could not be responsible for abuse committed before his appointment, effectively leaves individuals without anyone to sue. Trustees, who have no authority to appoint clergy, are also excluded.

Calls for a royal commission have continued since the failure of the Democrats’ 2007 motion. Following the suppression of a commissioned report by Professor Patrick Parkinson into the handling of sex abuse by the Salesians, a Catholic sect, Parkinson has added his voice to the calls.

It’s clear that the Catholic Church’s internal systems are still not dealing sufficiently with allegations of sexual abuse. If Archbishop Hepworth wants to reject the secular justice system in favour of reconciliation that choice is his to make, but unless the Church meets its moral obligation to stand down priests under investigation the community’s entitlement to protection and justice is not met.

Given the crookedness of the Church’s internal systems, the long history of Catholic rape and abuse, and balancing Hepworth’s request against the rights of ordinary Catholics and abuse victims, Nick Xenophon has done a good deed. Yes, the impact on Hepworth, Cappo and Dempsey will not be measured for some time, and parliamentary privilege has been used, yet again, in a manner for which it was not intended. But until a widespread inquiry can be mounted into sex abuse, individuals making flawed moral stands on the behalf of others is all we have.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.