Judy Courtin’s Submission
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The formal submission by Judy Courtin (see previous posting), a Monash University researcher, to the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, is based on interviews with many victims, lawyers and victims’ relatives and support persons. It is both interesting and informative, and represents one of the few studies anywhere on the theme of “Sexual Assaults and the Catholic Church: Are Victims Finding Justice?” (That is her doctoral thesis’ title). Her submission complements and supports the general thrust of that of John and Nicola Ellis (see previous posting), on the “Towards Healing” process of the Catholic Church for dealing with allegations of abuse throughout Australia, except for Melbourne which has its own protocol, termed the “Melbourne Response”, which was established by Cardinal George Pell (of Domus Australia fame – see previous posting). [] One may as well get across early on just how she views the “Towards Healing” process by giving a few quotes from the submission. “It’s not ‘Towards Healing’; it actually takes you towards madness.” “The Towards Healing process needs to be dismantled.” “Towards Healing has failed.” “The Towards Healing process is flawed. It is a Kangaroo court giving it the ‘opportunity to mislead and lie’. It is a sham and a con and an incredibly unsatisfactory process. It is difficult, inappropriate and insensitive. It is deficient, condescending, depersonalizing, demeaning and obscene.” By the conclusion of the up-coming hearings, many people will surely share this perspective. Courtin begins her submission’s main thrust with some statistics on conviction rates for the abuse. She says that “In relation to the criminal jurisdiction, it is well established that convictions for child sexual assaults are low and successful appeals routinely occur. Victims of sexual assault are the least likely of all victims to report the incidents to police. Of the 10% that do report, there will be about 6 convictions. This represents a conviction rate of about 6% of reported cases or 0.06% of actual cases in the community.” “In relation to Catholic clergy child sexual assault, Victoria police quote a figure of reporting to the police of about 8%, reducing those above numbers. This attrition of successful prosecutions continues into the appeal phase of the criminal process where more than half of the convictions are overturned,” she notes. One reported tactic used by the church to dissuade victims from approaching the police is informing them of this low rate of consistent convictions. Courtin also, like the Ellis’, points to the many advantages enjoyed by the Catholic Church when defending civil cases. Of particular note is the “Ellis Defence” (which effectively says the church cannot be sued – see previous postings). Then there is the statute of limitations defence, which is so effective simply because it is normally many years before a victim is able to report the offence. Another concern she raises, along with most lawyers, is that one is prevented from suing an incumbent Bishop because he is not what is called a “corporation sole.” As the church itself boasts in its own submission, the current Bishop cannot be held liable for any of the wrongs of his predecessor (who is usually dead by the time the offence is raised). Courtin gives the example, among others, of George Pell being safe from responsibility for his predecessor, Frank Little, which was raised at the Victorian State Parliamentary enquiry (see previous posting). As she notes “What this means at a national level is that there are possibly tens of thousands of clergy” victims who are being denied justice, and that “This is a clear breach of a fundamental human right.” Another identified problem area is that of “Vicarious Liability”, involving responsibility for the actions of employees. Again, the church’s submission smugly points out that its structure allows for a convenient defence from this approach towards compensation. Courtin’s submission notes that “Australia’s conservative approach with this doctrine in relation to sex crimes by the employee, contrasts sharply with the recent advancements in Canada, where Catholic Archdioceses have been held vicariously liable for the sexual assaults on children by one of its priests.” Again, there is a point of overlap between the Courtin and Ellis’ submissions. This is with regard to victims’ feelings about the initial approach processes. Some felt “vulnerable and fearful”. The use of church buildings or offices was seen as intimidating. It is even noted that this aspect of the Towards Healing protocol “might be there in the full knowledge that it actually does have this set of consequences.” Where the initial approach was through an 1800 phone number (for readers in other countries this is a prefix used for free calls – it is usually employed in a commercial context), there are serious problems. Victims are contacting a complete stranger, and being asked to detail matters they may be talking about for the first time. This contradicts the church’s claim of “sensitivity”. In general, victims found the experience to “exacerbate trauma and uncertainty.” For example, a male victim “talked about his initial telephone call with Towards Healing, and felt that he was ‘an annoyance’ for the woman on the other end. He said, ‘I got the sense … that I was a problem to be dealt with and how dare I ring up.’ The first contact for another male victim was with Centre Care in a rural city in Victoria. He reported difficulties when giving a statement to a female contact person at Centre Care, who was angry with him because he insisted that the word ‘rape’ be included in his statement.” Following the initial contact, there is an assessment/investigation phase, which also comes in for serious criticism. The frequency of assessments and investigations, for some lawyers, has increased in ‘recent years’. The nature of the investigations can be overly forensic and legalistic, negatively impacting on the victims. The standard or quality of the investigations can be cursory and poor resulting in detrimental outcomes for some victims. The behaviour of the investigators has been, at times, insensitive and inappropriate. The standard of proof used by the investigators is questionable, particularly when the investigators are ex-policeman who would have worked to the much higher and criminal standard of ‘beyond reasonable doubt’, compared with the lower and civil standard ‘on the balance of probabilities’. The submission states that “Concern is raised again with the investigators at Towards Healing displaying insensitive and inappropriate behavior. According to the evidence, the assessors and the assessments are below standard causing negative and harmful impacts on the victims… experiences reflect little or no understanding by the investigators as to what constitutes sensitive, empathetic and appropriate behaviour.” Courtin claims that “Pressure was applied to victims by the facilitator to take the money. The impacts of the process on the victims are multiple and serious, including being suicidal, feeling stripped bare, and depressed. There was despair and hopelessness; humiliation and embarrassment; dislocation, confusion and fragility. Victims felt bullied whilst their stories were minimized. The process was disempowering, tortuous and belittling. Victims felt angry, hurt, frustrated, beaten down, manipulated, destroyed and attacked.” What more can be said? In relation to the amounts of compensation paid to victims, “there is consensus that payments are paltry and inadequate. Even though the Towards Healing protocol claims there is no cap on the amounts of compensation for victims: no one has ever got more than 50 or 60 thousand. Entering the process means ‘turning up as a beggar to the all-powerful church.” This echoes exactly the submissions of others, including that of the Ellis’. The only moderately positive thing victims said about the process was concerning the value of counseling paid for by the church, although even then there was the problem that the number of sessions granted, and choice of counselors, appeared to be somewhat arbitrary. [Postscript: Pope Francis is to set up a Vatican committee to fight sexual abuse of children in the Catholic Church and offer help to victims, according to Sean O'Malley, the archbishop of Boston. It is not known if “Towards Healing” will provide the model.]
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