On sex abuse, has the pendulum swung too far?
By Enza Ferreri
Catholic World Report
March 22, 2016
|Alleged sex abuse victims and their supporters demonstrate down the street from St. Peter's Basilica in Rome in October 2010.|
Photo by Paul Haring
Attitudes about how the Church is handling cases of clerical sex abuse are frequently rooted in a misunderstanding of rule of law and evidentiary standards.
Last month Peter Saunders, the British man who founded and leads the National Association for People Abused in Childhood (NAPAC), was removed from the Vatican’s Pontifical Commission for the Protection of Minors, “apparently following a 15-0 vote of no confidence.”
The chorus of some mainstream media has been quick to describe this as a sign that the Vatican doesn’t intend to do enough against child sex abuse, or that Pope Francis is failing to do so. However, this attitude of utter condemnation of the Church is misplaced and based, in part, on a misunderstanding of rule of law and evidentiary standards.
I will start with some background on the role that Peter Saunders, NAPAC, and other activists like them have had in events in the UK.
Since 2012, Britain has been shaken by a flood of allegations of child sex abuse, the majority of which go back decades, against important figures in the public eye, both dead and alive. The police have investigated practically all claims, however improbable, and often in the total absence of evidence, launching one operation after another.
There has been Operation Fairbank, Operation Yewtree—specifically dealing with accusations against deceased TV personality Jimmy Savile, but not precluding others—and Operation Fernbridge. Even provincial police forces have joined in, for example with Operations Daybreak and Xeres.
Operation Midland, the enquiry into sexual abuse and murder of children allegedly perpetrated by senior politicians, spy chiefs, and top military figures, is about to be closed: “Scotland Yard is to close its disastrous investigation into alleged VIP child sex abuse and murder after concluding there is no substance to the claims,” reports the Daily Mail.
Police and high-profile accusers like the Labour Party’s deputy leader Tom Watson had to apologize to the victims and their families—and I mean victims of allegations belatedly recognized as false.
We now have Operation Hydrant. The numbers concerning the investigation are staggering: more than 1,400 (now increased to more than 2,000) men investigated; hundreds of institutions identified by “victims of non-recent abuse”; police predictions of the number of victims running into the hundreds of thousands; an enormous increase in reports of all types of child sexual abuse, risen by 71 percent since 2012 to 116,000 reports in 2015, of which 52,446 are allegations of “sexual abuse in the past”; a 166 percent increase in reports of “non-recent abuse”; the number of reports of sex abuse, both by adults and children, still increasing on a daily basis.
These are the figures of madness. In the above link notice how the Guardian, which views these investigations favorably, uses the expression “non-recent” abuse to mean what is more appropriately called “historical” abuse, from several decades back, which makes a police investigation—in which physical evidence should play an important role—extremely difficult, if not impossible. Also remember that many cases regarding accusations against members of the Catholic clergy have been historical.
There is a clear risk of perverting and even destroying the rule of law. British barrister Barbara Hewson explains the degeneration of the UK legal system:
[A National Society for the Prevention of Cruelty to Children (NSPCC) and Metropolitan Police Force joint report states:] “We are therefore referring to them as “victims” rather than “complainants” and are not presenting the evidence they have provided as unproven allegations” [italics added in Hewson’s article]. The report also states that “more work still needs to be done to ensure that the vulnerable feel that the scales of justice have been rebalanced.”
Note how the police and NSPCC assume the roles of judge and jury. What neither acknowledges is that this national trawl for historical victims was an open invitation to all manner of folk to reinterpret their experience of the past as one of victimisation.
The acute problems of proof which stale allegations entail also generates a demand that criminal courts should afford accusers therapy, by giving them “a voice.” This function is far removed from the courts’ traditional role, in which the state must prove defendants guilty beyond reasonable doubt…
It is depressing, but true, that many reforms introduced in the name of child protection involve sweeping attacks on fundamental Anglo-American legal rights and safeguards, such as the presumption of innocence. This has ominous consequences for the rule of law, as US judge Arthur Christean pointed out: “Therapeutic jurisprudence marks a major and in many ways a truly radical shift in the historic function of courts of law and the basic purpose for which they have been established under our form of government. It also marks a fundamental shift in judges’ loyalty away from principles of due process and toward particular social policies. These policies are less concerned with judicial impartiality and fair hearings and more concerned with achieving particular results…”
The therapeutic model has certain analogies with a Soviet-style conception of justice, which emphasises outcomes over processes. [Emphases added]
Unfortunately, organizations like NAPAC and individuals who lead them, like Peter Saunders, have greatly contributed to this state of affairs, in which the rights of defendants are slowly being eroded.
Saunders showed very poor judgement in an appearance in a BBC investigative documentary last fall—a documentary which was highly critical of police investigations into child sex abuse, and which was influential in the police’s decision to dismantle Operation Midland. In the documentary, Saunders defended the credibility of “Nick,” the anonymous Operation Midland star witness. Nick has made a number of sensational claims, including that he was sexually abused as a child for more than nine years by prominent men, including war hero Lord Bramall, and that he witnessed the ritualistic murder of three boys by a gang that included former Prime Minister Sir Edward Heath, ex-home-secretary Leon Brittan, former MPs, and heads of the Army and intelligence services in the 1970s and 1980s.
When no basis was found for these claims, Nick was largely discredited and the police are now under pressure to investigate him for perverting the course of justice. Nick is now openly called a “fantasist” and his stepbrother describes him as a “serial liar who ‘jumped on the historical sexual abuse bandwagon’ and may have been motivated by money.” Nick’s current reputation as a reliable witness is reminiscent of that of another star witness, on the other side of the Atlantic: “Billy Doe,” whom Newsweek called the “lying, scheming altar boy” behind legal battles waged against the Archdiocese of Philadelphia.
There is something in the British experience I’ve described that can help us better understand the Catholic Church’s predicament vis-à-vis sex abuse allegations.
It’s quite evident, from the four years during which the UK public has been treated to announcements of scandal after scandal, that the vast majority of accusations were not supported by hard evidence. It’s also quite obvious that there is a habit, on the part of the media and of commentators generally, of referring to individuals who have only been accused of sexual misconduct as “offenders,” their accusers as “victims,” and their alleged behavior as “abuse,” without specifying if any of these things have been established or not, or if there is any supporting evidence whatsoever.
This is a bad habit indeed, as it violates one of the first (if not the first) principles of justice: innocent unless proven guilty.
Something similar has happened with the claims against Catholic clergy.
When it comes to sexual offenses, trials on campuses, or in the media, or on Twitter have too often replaced real trials, and this move away from evidence is very bad news for society, not just the Church.
Psychologist Father Gerard J. McGlone, PhD—a Jesuit—writes in an essay in the book Sexual Abuse in the Catholic Church: A Decade of Crisis, 2002-2012 (all emphases added):
It was apparent from the initial and subsequent surge of clerical offenders coming into treatment that the veracity of the allegations and the standards of credibility were and are clearly different from what was expected in a court of criminal law. In most cases, the law was simply inadequate. The crimes and incidents had gone beyond most statutes of limitations for criminal conduct. Most, if not all, of the overwhelming majority of these cases were never adjudicated in a court of law. This posed and poses a significant hurdle for treatment centers and those Church officials referring their men to these centers.
The “beyond a reasonable doubt” criminal standard was no longer operational, and the standard of credibility used by most treatment centers…[and other entities] would set a new standard for most clerical allegations and cases in the United States. As more local diocesan and religious provincial-level review boards adopted a standard that was used in most American civil law cases the credibility issue was placed at the forefront in the treatment providers’ assessment processes. These evidentiary standards are obviously different for criminal cases.
This level of evidence was simply stated on the oft-quoted variable that “51 percent of the evidence” seemed or was likely to indicate that the allegation was credible. This is an essential new and important development that many are not aware of and do not understand.
The 51 percent, also called “preponderance of the evidence,” is a lower standard of evidence used in civil law, or for minor infractions in criminal law—certainly not for something as serious as sex crimes against minors:
This means that at least 51 percent of the evidence supports the plaintiff’s side. In a criminal case, the burden of proof is much stricter, because the defendant may go to prison if found guilty. Therefore, the prosecutor must convince the judge or jury beyond a reasonable doubt that the accused committed the crime.
Criminal cases use the “beyond a reasonable doubt” evidentiary standard, which requires that 95 to 100 percent of the evidence support the plaintiff’s side.
This vast difference in the amount of evidence required explains why, when self-proclaimed victims of sex abuse in lawsuits against the Church lose cases in criminal prosecutions, they often start civil cases. In a civil case, the probability of winning becomes much higher.
A legal source puts it this way:
The “beyond a reasonable doubt” standard is the highest standard of proof that may be imposed upon a party at trial, and it is usually the standard used in criminal cases. This standard requires the prosecution to show that the only logical explanation that can be derived from the facts is that the defendant committed the alleged crime, and that no other logical explanation can be inferred or deduced from the evidence. The United States Supreme Court in Victor v. Nebraska, 511 U.S. 1 (1994), described [reasonable doubt] as “such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof.” [Emphases added]
The overwhelming majority of accused clergy cases were never adjudicated in a court of law and, if they had been, more likely than not the accused would have been acquitted.
As the quotation from Father McGlone above shows, the action taken in cases of sex abuse was to refer the accused clergymen to psychologists. We have to understand that ideas have changed. It’s interesting to see how the Boston Globe, an outlet that would later ferociously attack the Church for referring accused priests to psychologists rather than reporting them to authorities, in 1992 viewed this course of action favorably, and went as far as publishing an editorial entitled “An offender’s right to treatment” that petitioned the governor of Massachusetts to establish “improved treatment programs” in the state, contending that it was “wrong to impose harsh punishments on sexually violent criminals without offering them treatment.”
Frequently, the psychologists consulted recommended psychotherapy treatment. The treatment providers, in order to assess each individual case referred for psychotherapy, used as the standard of credibility the 51-percent evidence criterion. This set the standard for most clerical claims in the United States’ Catholic review boards.
The damage done to the moral authority of the Catholic Church worldwide by the “pedophile priests scandal” is undeniable. I believe that the time has come to rethink how much of that scandal has been real and the extent to which it has been misrepresented.