Cardinal Archbishop George Pell will soon be leaving for Rome, but before he goes, he will appear before the Royal Commission into child abuse. The current public hearing, which will form the centrepiece of the commission's work, is examining the infamous "Ellis defence": the result of a successful appeal by the church against claims brought by John Ellis, who was raped by Father Aidan Duggan while an altar boy in the 1970s.
In Trustees of the Roman Catholic Church v Ellis & Anor [2007], an appeal of Ellis v Pell, the court found that:
"The relationship between individual office holders in the Roman Catholic Church (such as an assistant parish priest) and the members of that Church as a whole is too slender and diffuse to establish the members’ liability as principals in contract or their vicarious liability in tort."
In plain English, that means the church, whose assets are locked away in trusts, can't be sued for abuse committed by its clergy. Ellis, who went on to become a lawyer and represent other abuse victims, told the ABC in 2011 that in his legal practice he encountered the church defence named after his own case.
"I have had lawyers for religious orders sit across the table from me and say well, there is absolutely no liability in this matter," Ellis told Tony Eastley. The church has consistently denied that the Ellis defence exists, saying "The Catholic Church is not like a corporation with one basic structure for its activities."
Gail Furness SC, counsel assisting the commission, yesterday indicated in her opening remarks that examining the Ellis defence would be only one element of this case study. Significantly, the commission is also asking why the pastoral elements of the Catholic Church's "in-house" victims compensation program, Towards Healing, ceased if complainants chose to litigate — including the provision of spiritual advisors.
"It will [also]explore why the stated aims of providing a ‘just and compassionate’ response to victims of child sexual abuse at the hands of Catholic clerics only applied if complainants chose Towards Healing," Furness added, referring to the brutal lawfare conducted by the church against victims.
Many abuse victims do not lose their faith, and some go on to become clergy or leaders in the church. The church's responsibility to victims does not automatically end once litigation begins. Examining the pastoral response as well as the financials and legal matters falls well within the remit of the Royal Commission.
In fact, the most devastating evidence heard by the commission, the details of abuse aside, has concerned the uncaring or flippant response of clergymen and officials to the pleas of abuse victims. Previous hearings into the YMCA and Salvation Army have forever darkened the public's perception of those organisations.
One wonders whether the Catholic Church can fall any lower in the public's estimation. In any case, Pell appears last on the witness list for this public hearing; he will face plenty of hard questions after a week of testimony on the Ellis case by church bureaucrats and inferior clergy.
But in his bullish way, the Cardinal has already set the tone for this public hearing. In his widely-reported public statement to the commission, he said that, regarding the Ellis case:
"Whatever position was taken by the lawyers during the litigation, or by lawyers or individuals within the Archdiocese following the litigation, my own view is that the Church in Australia should be able to be sued in cases of this kind”.
The press has run with "Pell says victims should be able to sue church", which is nothing new — that has always been Pell's "own view". A pre-commission statement on the Sydney Archdiocese website states that "Church parties can and have been sued," before concluding that, if a victim decides to litigate, the process "will, of course, be more legalistic and less pastoral."
This is the whole reason the commission was established — of course victims can sue the church! They've been trying to for years. But they can't get results, because the financial and health costs of litigation are so high, and for some the spiritual burden of suing their own religion must be intolerable.
This is why the 2013 Victorian Parliamentary inquiry into child abuse, at which Pell appeared and admitted that a cover-up had taken place, made three hugely significant recommendations: that religious and other non-government organisations be mandatorily incorporated and insured to an adequate standard, to make litigation easier; that the statute of limitations be revised for child abuse offences; and that an independent tribunal scheme be set up to administer child abuse claims.
This session of the commission will be a kind of final judgment for Pell, at the end of his long career as Australia's best-known churchman. It's not an inglorious way to go out; Pell is, after all, not a glorious man. His lasting achievement will be the refinement of liturgical translations from Latin to English in a committee, Vox Clara, that he chaired. He is also known as a good financial manager and is about to be promoted to chief Vatican hatchet man. That's a suitable position for a priest who revels in unpopularity, and who has spent most of his career fighting a withdrawal against secular society — whether embodied in abuse victims, laws decriminalising sodomy, or liberalisation in his own church.
The unfortunate truth though, is that Pell will likely best the Royal Commission, and leave unscathed for Domus Australia and la dolce vita. But Pell, accustomed to being the judge, was never going to be brought to justice by any earthly authority. Australians lean on legal inquiries to "solve" many of our societal ills, but they can't ask the political, historical and theological questions that would really grapple with why the church under Pell treated victims with such contempt. Hopefully his last appearance in the dock is enough of a spectacle to give some sense of closure to those still suffering from the effects of abuse, and that it sends a warning to Pell's successor: the days of hiding the church behind a legal veil are long past.
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