Accused priest's landmark legal challenge to Church's sexual abuse process

By Louise Hall
Brisbane Times
December 13, 2015

http://www.brisbanetimes.com.au/nsw/accused-priests-landmark-legal-challenge-to-churchs-sexual-abuse-process-20151213-glmar9.html

The priest has taken the church to the NSW Supreme Court arguing for the matter to be dealt with via canon law processes. Photo by Tanya Lake

A priest accused of serious sexual misconduct with a "vulnerable" woman is challenging the Catholic Church's Towards Healing procedures in a landmark legal case.

An internal Church assessment concluded the priest had sexually assaulted the woman and he has been stood aside from from his role.

However the priest has taken the Church to the NSW Supreme Court, arguing for the matter to be dealt with via canon law processes that were superseded by the Towards Healing regime in the mid-1990s.

In a preliminary judgment handed down this month, Associate Justice Joanne Harrison said the case is the first time the Towards Healing principles and protocols, introduced in 1996 to deal with sexual abuse complaints, have been challenged in court.

Prior to 1996, complaints of abuse were dealt with under canon law, the internal body of law governing the Church, pursuant to a code put out by Pope John Paul II in 1983. The priest claims the Code of Canon Law is superior law to the Towards Healing protocols, is the universal law of the church and issued by the Pope, binding everyone including bishops.

The priest, who is of Vietnamese background and held a position in Brisbane but who cannot be named for legal reasons, has denied the allegations since they were made last year.

During the Towards Healing investigation the priest was hospitalised for mental illness and said he was unable to give evidence.

His lawyers also suggested the allegations fell outside the definition of "abuse" because it was a consensual sexual relationship.

Following the investigation, two assessors found the priest used his position to "groom" the woman to initiate a sexual relationship. They also found he contacted one of her relatives attempting to offer her money in exchange for denying the allegations.

But the priest claims he has been denied procedural fairness and the findings of guilt are in contravention of canon law. In particular, he says he was not given enough detail about the complaint and his alleged abuse to formulate a response.

He says his reputation as a priest has been "irreparably damaged" by the report and his career is in jeopardy. He says his livelihood, ministry, rights and privileges as a priest cannot be removed other than in accordance with canon law.

At issue at the preliminary stage of Court proceedings was its power to intervene in a case about the internal rules of a voluntary religious organisation. The traditional view is that civil courts do not have jurisdiction to interfere such decisions.

The Church defendants – named as the two assessors, the director of professional standards Mark Eustace, the chair of the Towards Healing review panel John Dunford QC and the Archbishop of Brisbane Mark Coleridge – said the claim is purely related to the interpretation of spiritual law and should be struck out. Further, the defendants argued canon law should be regarded as the public law of a foreign country.

However, Justice Harrison found the Court has authority to hear the case because the language used in the Towards Healing protocols arguably "manifests an intention to affect legal rights and obligations". And it is arguable these protocols have been breached, she said.

The Church has adopted Towards Healing in deliberate preference to relying solely on canon law.

The program has been scrutinised by the Royal Commission into Institutional Responses to Child Sexual Abuse, during which the Church said it was the preferred method as canon law processes "are not victim-focused and are mainly concerned with dealing with accused persons".

The matter will return to court in February.