The Ellis Submission (or: Final Vindication?)

lewisblayse.net
December 3, 2013

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Image: John Ellis (Source: www.clinchlongletherbarrow.com.au)

One of the submissions to the Australian Royal Commission into Institutional Responses to Child Sexual Abuse which is worthy of close study is that by John and Nicola Ellis, both of whom are lawyers who have represented victims. John Ellis is himself a victim. A past court action against the Catholic Church by Mr. Ellis resulted in the finding that the Catholic Church could not be sued, because it, technically, does not exist (see previous postings on “Ellis Defence”).

The submission covered here is one on the general principles on which the “Towards Healing” process (see previous postings) errs. Mr. Ellis has, apparently, also made a personal submission on his own experiences with the Catholic Church, which is private. There exists considerable anticipation of Mr. Ellis’ evidence to the hearings on the “Towards Healing” process at the Royal Commission, beginning on 9th December.

As stated previously, this author is not a lawyer (and not even a “bush lawyer”) so there will undoubtedly be technical errors. Apologies are given to the Ellis’ in advance, for any misinterpretations of their submission. Despite these disadvantages, it is important to give a general idea of what they feel about the “Towards Healing” process, since they are the acknowledged experts on it.

The focus of this posting will therefore be the 25 main points they make, with little interpretation of them, in terms of consequences and necessary regulatory changes required to address the problems they raise. For those who have the time, energy and expertise to do so, a look at their submission, available on the Commission’s web-site, is encouraged.

Complainants have to go to church which abused them. The church won’t allow independent contact person e.g. counselor, on the basis that this is too expensive for the church. It does not allow for victims’ lawyers. As indicated in yesterday’s posting, the church’s submission appears to be very anti-lawyer in terms of victim support persons. As a result, the primary concern of victims is that they won’t be believed. The situation creates a power imbalance (see previous postings on this issue in general). For example, the church representative is referred to as the “church authority”. Sometimes, delays in the process can be used to create a legal limitations problem – e.g. normally, one has a certain amount of time after becoming aware of the effects of abuse on oneself, so if the church delays the process longer than this time (the victims is assumed to be aware of the effects of the abuse when he or she first approaches the church), the victim is disadvantaged in the legal process.

Victims are discouraged, or filtered out, at the first contact point with the Professional Standards Office, which runs the process. Victims are sometimes told to “go away and think about it [the complaint]” which is seen as a rebuff.

After the initial contact with a church authority, the victim is sent to a priest, nun etc to give the details of the abuse. They are not given choice of contact person, and the meeting is also conducted on church premises, which all adds to the power imbalance and the perception that the church is in control of the process.

Under “Towards Healing”, the contact person is supposed to keep the victim informed throughout the process. In practice, this is not done on account of the fact that the initial complaint meeting is often both the first and only meeting. There is no trust development. The submission refers to one case where the victim asked “Aren’t you on my side” to which the answer was “No, of course not.” It has been described as a quasi-judicial process, despite a contrary view in the church’s own submission. Further, the process disadvantages less-articulate persons, while the articulate ones are seen as being only after money, trouble makers etc.

Through the process, victims have to tell their story multiple times, which is stressful and re-traumatizing. The natural desire to avoid this problem can be used to place pressure on victims to agree to church offers.

Again, in contradiction to the church’s own submission, the Ellis’ submission refers to the process as “adversarial, overly-legalistic, and protecting the church, not the victims”. The claim assessment process is seen as denigrating. The submission’s case study 2, concerning “AB”, relates that, despite a church leader, then a psychologist saying they believed the victim’s account, later the church assessor said there was no evidence in support of the victim’s claim, so the process stopped. In another case, the assessor said ok but then church said no. These cases highlight the inconsistency of the process.

Victims feel they are not being informed of the progress of their claim, and experience unexplained and lengthy delays.

Some victims feel they are forced, or pressured, into meeting with the church authority before they are ready. This makes them feel they are a “problem” which must be disposed of quickly. The church should offer, rather than demand, an early meeting.

The power imbalance problem between church and victim creates feelings of intimidation and powerlessness.

Victims have no control or influence over the process. For example, the choice for a male or female facilitator is not often sought, or respected. Further, the list of facilitators is not publicly available, and the facilitators are not seen as independent.

There is little or no transparency in the process. For example, copies of reports are sometimes not given to the victim. There is no process for getting information from the church, since the church reserves the right not to give assessment reports to the victim.

As has been noted by many other people in the past with complaints processes in general, victims feel their account is doubted, that they have to prove their claims and the church will always be believed over them. This is contrary to the church’s claims in its own submission (see yesterday’s posting).

Victims are often told there are no other complaints against their abuser, even when this is not true. This tactic can only be for the purposes of undermining the victim’s credibility, and confidence in being believed. It is a cynical, and unchristian, ploy by the church officials.

Victims often feel they are being discouraged from going to police, particularly from the threat of stopping of the “Towards Healing” process if they go to police, including financial support. The church’s submission also denies this is a factor, and should become a major source of discussion at the up-coming hearings.

Psychological impacts assessments of the abuseare rarely done, and even when they are done, it is the church’s nominee, not victim’s, who does the study. This undermines the church’s claims that “reparations” are tailored to individual impacts of the abuse on particular claimants.

Despite church claims to the contrary, concerning redress, victims feel attention is not placed on harm or needs, but is purely arbitrary. Unlike the “Melbourne Response” there is supposedly no “cap” on payments under “Towards Healing”, but according to the Ellis’ submission, there appears to be an informal one. The net result is that victims therefore feel they are not being treated as individuals.

There is no consistency between States in the process. Different state Professional Standards Offices, and church authorities, have different “caps” and ranges of financial redress. There are other great differences between states.

Where ongoing support and assistance is provided, victims feel they have to go cap-in-hand to the church. As indicated in yesterday’s posting, this is not surprising since the church holds all of the legal cards. The submission gives the example of a person who publicly criticized the church and then lost the existing support which had been being given. Intimidation of this type warrants the full attention of the up-coming hearings.

While the wheels of the process are slowly turning, interim support is not consistently provided, e.g. medical, housing, psychological support etc. This can be used to put pressure on the victim to accept a lesser amount of reparation.

Threats of cutting off therapeutic support are used to pressure victims into accepting financial offers, often which are inadequate. The submission specifically refers to the “AJ” case study where the victim has Post Traumatic Stress Disorder.

Again, because the church holds all the legal cards, there is very rarely any negotiation of out comes. The church adopts a “take it or leave it basis” in discussions.

Victims seen as difficult, or demanding, by the church are treated “more harshly” than those who are compliant. This has been a widespread criticism elsewhere.

In a general comment, the Ellis’ submission claims there is an “overwhelming feeling at the end of the process, that victims are pressured into inadequate and unjust settlements.” Again, this is a widespread perception of the process, which the church has difficulty rebutting.

There appears to be no effective, or independent, review or oversight of the implementation of the “Towards Healing” process. Indeed, the church’s own submission to the Royal Commission proves this point, so there will surely be some discussion of this particular point at the hearings.

The church’s submission relies heavily on its “pastoral” experience. However, many church officials have no understanding of “complex trauma” and of the conditions likely to facilitate recovery. Ideally, it should use experts, or people who have good training in this issue. Professionals in the general area of abuse trauma will have something to say on this issue as well, undoubtedly.

The Ellis’ submission concludes by noting that the church’s concept of “reparation” should be given its full and proper meaning of “action of making amends for the wrong one has done,” and that “This requires full and adequate compensation.”

Herein resides the crux of the differences between the Ellis’ submission and that of the Catholic Church. The church specifically denies that it is giving “compensation”, but is only making “reparation”. Indeed, it even adopts a different interpretation of “reparation” to most other people. For the church, this is more like “pastoral care” which may or may not include an arbitrary financial component.

At the risk of stating the obvious, a major concern of the church will be to protect its assets by denying compensation, in the usual legal meaning. Whatever the Royal Commission decides to recommend on the issue, the church is likely to fight it both politically and through the courts, as suggested in their own submission to the Commission, covered in yesterday’s posting.