Church response to sex abuse falls short

By Samantha Walker
Courier
November 23, 2015

http://www.thecourier.com.au/story/3510740/mixed-views-on-response/

A body representing the Catholic Church has released guidelines for how the church should respond to civil claims for child sexual abuse, which have received mixed reviews from a sexual abuse survivor and lawyer. 

The Truth, Justice and Healing Council published the guidelines yesterday, which aim to “promote justice and consistency” with the church’s handling of sexual abuse claims and litigation. They include that church authorities should pay “legitimate claims without litigation” and “assist a claimant to identify the correct defendant to respond to legal proceedings”.

Ballarat clergy abuse survivor, Andrew Collins, welcomed the guidelines but said they needed to go further to guarantee survivors could receive compensation from the church.

“I’m very pleased to see them (the church) standing up and taking this seriously, because litigation has been very hard to pursue in the past,” Mr Collins said.

 “One thing they need to do is to nominate an entity for survivors to sue.”

In the past the church has used a legal tactic known as the ‘Ellis Defence’ to avoid paying compensation to victims of sexual abuse.

It is based on a 2007 decision by the NSW Court of Appeal that found the church couldn’t be sued for compensation because it was not a legal entity.

The Truth, Justice and Healing Council has released statements in the past that “there will always be someone or thing to sue which will be backed by assets and or insurance”, however lawyer, Vivienne Waller, said this was not what she experienced in practice.

“There’s a great disparity between what they’re saying in this press release and what they’re doing on the ground in individual cases,” Dr Waller said. 

“The latest guidelines make no mention of ensuring there will be an entity available for victims to sue.”

Dr Waller said the use of the ‘Ellis Defence’ would impact upon the outcome of “hundreds” of her client’s cases.

“It’s helpful that they (the church) are willing to engage in alternative dispute resolution measures, but these guidelines leave open the possibility that there’s nobody there to sue,” she said.

The council’s chief executive officer, Francis Sullivan, said the new guidelines were “fairly closely aligned” with recommendations made by the Royal Commission into to Child Sexual Abuse.

“They’re a church-wide policy and a bishop will use these as a guide,” Mr Sullivan said.

“Any bishop would be hard-pressed not to follow them because they’ve been endorsed by church leaders.”

The bishop of Ballarat Paul Bird was unavailable for comment.