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Gender justice and policies of compensation for clerical sexual in

Australia and the

Paper given to the International Conference on Public Policy Milan July 2015

Dr Kate Gleeson Macquarie Law School [email protected]

1. Introduction This paper sketches a preliminary methodological dialogue by which to try to understand the treatment of the Catholic Church in regard to child scandals arising in Australia and the Republic of Ireland since the 1980s. It is a response to the unusually privileged status of the church in both countries that is associated with a de facto immunity from civil justice in cases of historical claims. In both Australia and Ireland the church has been effectively shielded from the public interrogation and determination of damages that have led to significant advancements in child protection policies in other common law nations. In many countries the church has been revealed to have responded to child sexual abuse as though it were above the criminal law. In Australia and Ireland that internalised immunity continues to extend to litigation and concessions of institutional liability. In both countries survivors of Catholic child sexual abuse are forced to bargain for their compensation in the shadow not of the law, but of what legal theorist Thomas Lytton describes as the ‘shadow of a scandal’.1

It is imperative to understand the political and legal factors that have produced legal immunity for the Catholic Church in Australia and Ireland, and therefore denied gender justice for victims of Catholic child sexual abuse. In Ireland the historical ‘state-like’ status of the church2 appears to give some clues, but the situation in Australia is more curious and may complicate simplistic readings of the Irish situation. To try to understand the role of the state in producing this sustained sense of immunity, in this paper I investigate theories of feminist political science and feminist critical legal theory associated with gender justice and equality. I suggest that in dialogue between the two, the logic and

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rationale of the state in stymieing justice for survivors of Catholic child sexual abuse may begin to become apparent. In an era of universal condemnation of child sexual abuse and a ferocious hatred of paedophilia, the state’s actions in this area may be difficult to comprehend. However, I suggest that together both schools of feminist scholarship point the way (or point to one way) to comprehending the political significance of maintaining the integrity of institutions in the face of scandal, even those institutions shown repeatedly to lack internal capacities for integrity.

The feminist approach to understanding child sexual abuse is to emphasise ‘power and control, the role of patriarchy and the gendered context’ of the contact between adult and child;3 associated remedies are understood in terms of gender justice. Understanding child sexual abuse as a gendered crime characterised by gendered power is especially pertinent to understanding abuse by Catholic clergy, which Irish psychotherapist and academic Marie Keenan describes as the ‘inevitable’ outcome of the power dynamics and structures of the Church. Keenan identifies Catholic clerical perpetrators as having lived an ‘unreflective script of private powerlessness whilst ministering a site of unsupervised and unchallenged public dominance’, whereby the sexual abuse of children in private ‘functioned to preserve the priesthood in the public sphere’, so long as it was secret.4 That the acquittal of individual priests’ powerlessness often took the form of the sexual abuse of the most powerless of all people (both boys and girls) suggests that the homosocial power dynamics of the church are inherently, or conclusively, gendered and that they function by reifying hegemonic masculinity, which dominates and marginalises men as well as women (and children).

The focus of this paper is the Catholic Church and child sexual abuse committed by its clergy and other religious personnel. As repeated inquiries have shown, systemic child sexual abuse is a liability of institutions, not least of all the family. It is not simply a liability of Catholicism. Nonetheless, the Catholic Church has been implicated in significant enduring abuse in both nations for which it has been granted special legal and political status. Hence the focus of my paper, which is concerned with the nexus between politics and law in responding to child sexual abuse. This paper is structured as follows. First it summarises the public history of the Catholic child sexual abuse scandal in Australia and Ireland. Next it outlines the features and far-reaching significance of the Church’s de facto immunity from suit in each nation. Third it introduces the political science methodology of feminist institutionalism as a prism by which to view the actions of the state in producing this immunity, before incorporating the insights of feminist legal theory about institutional sexual harms in this analysis. It concludes that while the institutions of politics and law may have a vested interest in pursuing individualistic criminal justice in cases of child sexual abuse, lawsuits and perceptions of institutional liability made in the context of the Catholic Church present fundamental challenges to the internal gendered logic of all state institutions. Hence they are less likely to be pursued.

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2. Ireland The Catholic abuse scandal was exposed publicly by the trials of Father , commencing in 1993. Allegations made against Smyth were revealed in the Ulster TV documentary Counterpoint, leading to his conviction of 74 counts of the sexual abuse of children over 35 years in Ireland and Northern Ireland. Although parents of victims had made complaints to church authorities since the 1960s, Smyth was shielded by the Church, which moved him between parishes and swore juvenile victims to secrecy in the process of canonical trials. Media coverage of the criminal trials brought the spectre of ‘paedophile priests’ to the consciousness of Irish society, with instant political effects associated with the ongoing peace process. In 1994 the Fianna Fail/Labour coalition government fell, and the Irish Attorney General resigned, after it was revealed that a Northern Ireland extradition order for Smyth had ‘lingered’ in the AG’s office for seven months.5

Allegations against priests continued to be made across the Republic before attention turned to state institutions. In 1998 the Irish government began to consider the need for a comprehensive response to , citing the South African Truth and Reconciliation Commission as inspiration.6 The government failed to act on its own recommendations before, in May 1999, the public broadcaster RTE aired the three-part documentary , detailing what director described as the ‘extremely vicious and sadistic , way off the scale, and horrific emotional abuse, designed to break the children’ perpetrated in Irish state and church-run industrial and reformatory schools between the 1930s and 1970s.7 The documentary is credited with ‘changing Irish society’.8 It prompted an immediate ‘sincere and long overdue’ apology by Fianna Fail Taoiseach ‘to the victims of childhood abuse’; a national counselling service; and the establishment of the Commission to Inquire into Child Abuse (CICA) from 1936 to 1999 when approximately 173000 children were committed by the courts to industrial and reform schools.9 In response to lobbying by plaintiffs’ attorneys the government also suspended the statute of limitations for civil claims for historical sexual abuse, for one year.10

Chaired first by High Court Judge Mary Laffoy, CICA was tasked with hearing evidence of alleged victims of abuse; conducting and reporting on an investigation into the cause and nature of abuse in institutions, with Church and state representatives acting as respondents; and making recommendations for addressing and preventing abuse. About 1000 survivors also testified to a ‘Confidential Committee’, where their stories were recorded unchallenged. Complaints were received in relation to over 200 institutions; the majority of allegations related to sixty residential reformatory and industrial schools mostly operated by Catholic religious orders, funded and supervised by the Irish Department of Education.

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The Christian Brothers, facing over 700 individual complaints, delayed the investigation for more than a year with a lawsuit that challenged the authority of the commission to investigate historical abuse, and successfully defended their members’ rights to anonymity in the commission’s report, even in cases in which individual Christian Brothers had been convicted of sexual and physical abuse of children.11 Anne Marie McAlinden identifies the refusal to publicly identify abusers as possibly undermining justice for survivors in regard to public recognition of the crimes committed against them, thus the entire operation.12

In September 2003 Justice Laffoy resigned from the commission and later criticised its lack of independence as it was funded by the Department of Education –a primary respondent to allegations.13 Laffoy was replaced by barrister (now High Court Judge) Sean Ryan. After having its tenure and budget extended twice, at the culmination of the Inquiry CICA produced the 2600 page Ryan Report in May 2009, representing 30000 complaints made. Along with physical abuse, and sexual molestation, especially of boys, was found to have been ‘endemic’ in Christian Brothers institutions in particular.14 Eleven cases were referred to the DPP for prosecution; three were proceeded with.15

By the time the Residential Institutions Redress Board was established in 2002 an estimated 2500 civil claims were underway or threatened in the High Court concerning historical abuse in Catholic- run state institutions.16 The Irish Residential Institutions Redress Scheme operated independent of CICA to provide flexible ‘banded’ ex gratia compensation based on evidence of abuse established in ‘non adversarial’ processes, in exchange for a waiver of rights to bring a claim for damages in the courts in respect of abuse and injuries covered by the award, and the avowal of liability by the state and religious orders. Despite claims of ‘non-adversarialism’ the scheme was criticised by survivors for being too legalistic and requiring their legal representation; and for protecting individuals of religious organisations while imposing ‘penalties on the abused if they gave wrong information, or if they disclose details of claims made by them’.17 The Board stopped accepting applications at the end of 2011. At 31 December 2014 it had approved legal costs of €192.9 million to 1020 law firms in respect of 15064 applications for redress. Awards made to survivors have totalled €944.1million: the average was €62530, and the largest €300500.18 Total costs of the scheme are estimated at around €1.5billion.

The Redress Scheme was funded on the premise of shared liability with a contribution of cash, property and assets worth €128 million made by religious orders – an amount vastly underestimated in 2002 as likely to cover 50% of the cost of the scheme, which has come to represent 10% or less of the actual cost. In exchange, the government made an agreement to indemnify and pay legal defences of all contributing religious orders and their members against existing and future claims for damages

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made against them in the courts, in respect of any action arising from circumstances such as those addressed by the Redress Board. No representatives of survivors were involved in the negotiations, which were completed by outgoing Education Minister Michael Woods in the last days of a caretaker government at the time of the national election, with no involvement of the Cabinet and the Office of the Attorney General, and no parliamentary debate.19

Periodically, reports appear suggesting the magnitude of settlements paid by the state. In 2006 it was reported that the government paid €745000 to three former residents of St Joseph’s Orphanage in Kilkenny in response to negligence claims brought in the High Court for sexual and physical assaults by lay staff members. In all three cases, St Joseph’s pleaded indemnity, and the government defendants (such as the Minister for Education) paid general (though not exemplary) damages awarded by the court.20 It was not until the release of the Ryan Report in 2009 that the scale of abuse and associated costs to be borne by the state started to become apparent to the people of Ireland. Since 2010 the government has tried, and failed, to secure at least another €348 million from religious orders to meet the costs of redress.

Survivors’ advocate Colm O’Gorman describes the indemnity deal and associated court cases as allowing the church ‘to escape much financial liability and all moral responsibility while still being allowed the power to challenge or dispute cases. This is being foisted on claimants while the church and its organisations operating under all-embracing immunity, are free to unleash all their legal forces on the compensation process to gain access to all statements of claim and to challenge any claims made’.21

The Ryan Commission and Redress Board concerned only abuse committed in residential institutions. High profile allegations against parish priests continued to be made in Ireland, such as those aired in the 2002 BBC documentary , against Father Sean Fortune, who suicided in 1999 after being charged with 66 counts of historical child sex offences. That documentary marked a documented sea-change in public opinion against the Church in Ireland.22 Three diocesan inquiries into Catholic child sexual abuse followed, concerning Dublin, Ferns and Cloyne dioceses. All three unearthed church policies and practices of shielding alleged offenders, moving them nationally and abroad, of abuse, obfuscation and risk management, including the purchase of insurance against claims for child sexual abuse in 1987, accompanied by a failure to report any apparent crimes to the Giardia prior to 1995.23 The Dublin and Ferns Inquiry each identified around 100 priests against whom abuse allegations were made. Since 1975, across Ireland only 26 prosecutions have ever arisen from 723 criminal allegations made against 320 priests.24

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The Church began to reform its internal policies, ostensibly from 1996 when a framework document for responding to child sexual abuse was presented to dioceses by the Irish Bishops Conference. In 2005 a child protection policy was instigated by the Church and the National Board for Child Protection in the Catholic Church of Ireland was established. However the Cloyne Inquiry found that during the period 1996-2009 these protocols and procedures were not followed.25

It would appear that no suit brought against Catholic church organisations in the context of child sexual abuse has been determined by an Irish court. The church has been remarkably successful in mediating these settlements out of court, thereby avoiding publicity and the courts’ determinations of damages. In a rare public statement, as terms of settlement in a case defended for 5 years, in 2003 Bishop of Ferns Eamonn Walsh admitted the church’s negligence in court, and issued a public apology on behalf of the diocese to Colm O’Gorman - the first victim of Sean Fortune to go public with allegations, and the subject of Suing the Pope.26

3. Australia Institutional child abuse came to light in Australia in the late 1980s, in the context the child migrants who had been abused in orphanages and schools, notably including Christian Brothers’ institutions. From 1912 to 1969 approximately 7000 mostly British children were forcibly expatriated to Australia, almost half to Western Australia. In 1987 the Western Mail detailed stories of the sexual and physical abuse of the past residents of a number of local institutions including St Joseph’s Farm and Trade school at Bindoon. A number of books were published about the abuse of child migrants before, in 1992, the public broadcaster ABC TV aired the dramatic mini-series The Leaving of Liverpool, concerning the lives of two English children transported to Australia in the 1940s. From 1992 the sexual and physical abuse of child migrants became ‘a scandal of immense proportions’ in Australia.27 That same year, the sex crimes of clerics were also brought to the popular consciousness, when ABC TV aired the Compass documentary The Ultimate Betrayal: Sexual Violence in the Church.

The Ultimate Betrayal revealed evidence of ‘gross hypocrisy’ in churches of numerous denominations, in regard to sexual teachings and behaviours of clergy and other religious who were identified as sexually and physically abusing parishioners.28 It broadcast American statistics indicating that sexual abuse was prevalent among clergy. Although occasional high-profile criminal convictions against Australian priests had been known since the 1970s, Australian religious leaders responding to The Ultimate Betrayal condemned its findings as outrageous. Compass persisted with the story, following up with the 1993 program Conduct Unbecoming, which affirmed the original documentary.29

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By 1993 a class action had been brought against the Christian Brothers order by 200 claimants for suffered in Western Australian orphanages. The claim was filed first in New South Wales and then Victoria, where a number of the claimants resided, in an attempt to avail of the more flexible interpretations of limitation acts in those states. The Christian Brothers succeeded in having the proceedings transferred to Western Australia where, due to the limitation act there, the case was ‘dead in the water’.30 In 1996 the claimants were ‘pressured to accept a settlement’ of $5.1 million, $1.5 million of which constituted legal fees paid by the Christian Brothers. Individual claimants received between $4000 and $25000 each. The remaining funds established a trust to provide services such as counselling and cover transport costs for claimants. In 1993 the Western Australian DPP announced it was investigating related claims of criminal abuse by 23 Christian Brothers, but no cases proceeded, due to ‘the passage of time’.31

In 1997 the UK government conducted a parliamentary inquiry into the welfare of former British child migrants, including those sent to Australia. It recommended that Australia suspend statutes of limitations in all child migrant cases so that victims could be ‘awarded the maximum possible damages’.32 The Australian federal government responded that no Australian government had plans to alter its limitation acts, and eventually conducted its own parliamentary inquiry into child migrants in 2000, but did not provide for redress.33 In 2007 the Western Australian government established a redress scheme for those abused in state care (including in religious institutions). Payments were capped at $45000.34

While scholars of the Irish situation lament the continual conducting of inquiries as an Irish political trait,35 it is the Australian response to institutional and religious child sexual abuse that may be characterised by ongoing public investigation, typically without accompanying substantial redress. Select relevant inquiries and reports include the following. In 1994 the NSW government established the Wood Royal Commission into the NSW Police Service with a focus on organised paedophile activity in the state, including within churches. In 1997 the Human Rights and Equal Opportunity Commission published Bringing them Home [the stolen children report] detailing the experiences of indigenous Australians removed from their families and communities and placed in religious and state institutions throughout the 20th century. It recommended a national redress scheme be implemented in accordance with the international van Boven principles. The government rejected this recommendation. Tasmania was the only state to provide reparations.

In 1998 the Queensland government established the Forde Inquiry into abuse of children in Queensland institutions (including religious institutions) and ultimately established a $100 million Redress Scheme that made payment to around 7000 individuals. In 2004 the Australian parliament released the Forgotten Australians report concerning children in institutional care, recommending

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inter alia that the Commonwealth Government establish and manage a national reparations fund for victims of abuse in institutions and out-of-home care settings. This was not acted on. In 2012 the Victorian government established a parliamentary inquiry into the handling of child abuse in religious and other non-government organisations (the Victorian Inquiry). Primary recommendations mirrored those of the Forgotten Australians report including waiving limitation acts, and other reforms to the civil law to allow victims to sue churches and other non-government organisations. The Limitation of Actions Amendment (Child Abuse) Bill 2015 was passed, but the other recommendations have not been acted on.

Two inquiries focused solely on the Catholic Church: in 2012 Catholic Bishops commissioned an independent report into the Church’s handling of an alleged paedophile priest (the Whitlam inquiry), and the NSW government appointed the Special Commission of Inquiry into matters relating to the Police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland- Newcastle (the Newcastle Inquiry). Allegations made in the context of the Newcastle Inquiry prompted the establishment of the 2013 Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. Along with determining what institutions and governments should do to better protect children in institutional contexts, its terms of reference include making recommendations for redress.

In the background of all these inquiries was the escalating media attention given to trials of individual priests. National data are difficult to establish, but the survivors’ rights lobby claims to have details of around 100 Catholic priests and other religious who have been convicted of child sex offences in Australia.36 For example, the trials of ‘Australia’s worst known paedophile’, Father Gerald Risdale for serial offences committed on 50 victims between 1961 and 1987, commenced in 1993.37 Similar to Ireland, the Newcastle and Victorian Inquiries revealed longstanding church policies and practices of , obfuscation, and shielding alleged offenders by moving them between parishes, and countries, especially prior to 1996 and the release of the Wood Royal Commission findings. It is evident that the church’s rehabilitation program for ‘sexual boundary violators’ made not one referral to the police throughout its operations from 1997 to 2008.38

1996 did appear to mark a turning point in terms of some Australian Church protocols. In 1988 the Australian Catholic Bishops Conference (ACBC) had established a ‘Special Issues Committee’ to develop a protocol to address child sex abuse claims. The Church had recently been warned by Catholic Church Insurance Ltd (CCI) that it was facing financial exposure to sex abuse compensation claims, which were ‘increasingly being excluded by worldwide insurance markets’. CCI set aside $1.2 million dedicated to such claims, and underwrote the church for alleged incidents dating to 1969.39 In 1990 the Special Issues Committee disseminated the Protocol for Dealing with Allegations of

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Criminal Behaviour to Bishops and superiors of religious organisations. It was formally adopted in 1992. The protocol advocated a ‘very defensive approach’ aimed to ‘prevent or remedy scandal’ for the church.40

By 1996, after the publicity of the Christian Brothers suit had settled, the Church had in place new protocols to address claims of abuse. That year, Archbishop of Melbourne George Pell launched the ex gratia compensation scheme The Melbourne Response, for allegations made in that Diocese – the first such compensation scheme in the world. One month later the ACBC launched the national Towards Healing protocols and program for allegations made elsewhere, which came into operation in 1997. In 1996 the ACBC also commissioned a study to determine factors specific to the Catholic Church that might lead to sexual abuse. The report, Towards Understanding, took three years to complete and has never been released publicly.41

Much like Ireland, victims of Catholic child sexual abuse in Australia have not achieved justice through civil claims determined in the courts. Just as in Ireland, the Church in Australia has been remarkably successful at avoiding the publicity of trials and the courts’ determinations of damages. Numerous claims have been settled out of court, confidentially. For example, the Maitland-Newcastle Diocese is reported to have paid $6million in confidential settlements related to three offenders.42 Along with obstacles associated with limitation acts, the leading judgment Trustees of the Roman Catholic Church v Ellis highlights the difficulties in suing an unincorporated entity such as the church in Australia, as well as the Australian courts’ conservative treatments of vicarious liability (discussed below).43

The NSW Supreme Court decision, which found in favour of the church, left claimant John Ellis with no legal remedy for the ongoing sexual abuse perpetrated by his parish priest in the 1970s and, along with the ill-fated Christian Brothers suit of 1993, has since deterred other claimants from pursuing justice via civil means. Unlike Ireland, however, the Australian government has not stepped in to provide redress. On the contrary, the Australian government recently indicated that under the current government there will be no national redress scheme for victims of sexual abuse in institutions. The government instead ‘invited’ the Royal Commission to ‘make the recommendation’ that individual institutions (mostly run by religious organisations) ‘must accept the legal, financial and moral responsibility for failing to protect children’.44

The twin lacunas of effective civil justice and standardised national redress in Australia have invited the church to dominate victims’ claims and experiences of justice through its in-house ex gratia schemes. It is estimated that since 1996 Towards Healing has paid $43 million to 1700 claimants;45 The Melbourne Response has paid $17 million to 300 claimants.46 Both schemes were subject to

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trenchant criticisms in the Victorian Inquiry and current Royal Commission. Both preclude the church acknowledging responsibility for abuse.

4. Immunity In Australia and Ireland victims of Catholic child sex abuse have been thwarted in their efforts to seek justice and damages determined by civil means in political arenas in which the church would appear to have been granted de facto immunity from suit. In Ireland the state has undertaken the extraordinary measures of defending claims and funding settlements associated with church-run residential institutions, thereby nullifying the punitive and public interest effects of damages on religious orders in this context. In Australia, the government has refused responsibility for redress and effectively directed victims to continue to seek compensation directly from their abusers’ institutions, with little-to-no opportunity to negotiate substantial payments within the terms of in-house ex gratia schemes that, up until very recently, operated beyond civil scrutiny.

In both nations, settlements also continue to be negotiated confidentially, avoiding the public determination, acknowledgement of harm and punitive function that damages perform. Regimes of secrecy, silence and institutional dominance (some of the most disturbing and defining features of religious child sexual abuse) are perpetuated by the systems of justice made available to victims. The public spectacle of commissions such as CICA and the Australian Commonwealth Royal Commission may give the impression of publicly orchestrated justice, and provide restorative effects for survivors, but in the broader associated context of confidential redress (Ireland) and church-led redress (Australia) their capacities for justice are inherently stymied. McAlinden questions the possibilities of a commission such as CICA to perform significant ‘truth recovery’, due to its administrative and constitutional restraints, whereby it performs the function of investigating the state and the ‘state-like church’ within the state.47 Moreover, the failure of both commissions to work in concert explicitly with the criminal and civil justice systems associated with retribution and reparations gives the impression of symbolic, rather than actual justice, suggesting the child abuse - even institutional child abuse - is still, ultimately, a private or personal relational transgression or harm.

Australia and Ireland appear to stand alone in the common law world in this excision of court- determined civil justice from the unfolding scandal of enduring Catholic child sexual abuse. Undoubtedly some victims prefer not to litigate or go to trial, but equally undoubtable is the fact many desire that right. The outcomes in Australia and Ireland are political as much as they are legal, and numerous governments have been complicit over time. The Victorian Inquiry concluded that ‘victims of criminal child abuse have a fundamental right to sue non-government organisations for damage they have suffered’; and ‘court judgements provide a valuable and practically available form of public condemnation for criminal child abuse, and create a powerful incentive for organisations to change

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their practices to prevent child abuse’.48 Hence governments should act to remove obstacles to litigation and ensure that religious organisations are incorporated as legal entities with adequate insurance, able to be sued. Such reforms may open up avenues of pursuing suits of vicarious and direct liability of religious orders and dioceses, and even the trustees of the church - some of the successful routes to litigation undertaken in the US, the UK and Canada.

The immediate fear is that in a wasteland of a litigation landscape such as Australia and Ireland, the Church ‘has nothing to lose’; whereas ‘were Church resources seriously under threat through civil suit….church authorities would quickly take action to limit their exposure. They would become vigilant and act to ensure that children were not placed at risk’.49 Legal theorist Thomas Lytton identifies the manifest public interest benefits of ‘holding bishops accountable’ by civil suits.50 Examining the US, where a relatively small number of liability and negligence suits determined in court including punitive damages have had profound effects on Church policies internationally, Lytton argues for tort litigation to be seen as a process of public regulation and public policy formation.

High profile civil suits in the US gave survivors the courage to come forward with allegations across the West. Moreover, through the process of civil litigation in the US commencing in the 1980s, including subpoenaing diocesan and Bishops’ records and arcane ‘secret files’, the institutional and systemic nature of Catholic child sexual abuse was exposed and brought to the attention of the authorities, and the public internationally. While occasional criminal trials of individuals have revealed incidents of Catholic child sexual abuse, prior to the civil trials of Louisiana Priest Gilbert Gauthe commencing in 1985, the systemic nature of this institutionalised abuse was completely hidden from public view, and public justice. Survivors themselves did not know of the true nature of their abuse. It is civil litigation that has performed the ‘truth recovery’ of this scandal.

Comparing the public interest to that in the cases of tobacco, firearm and pharmaceutical litigation, Lytton concludes that litigation against bishops in the US has not only provided justice and compensation for survivors. It has also ‘enhanced the efforts’ of policymaking institutions such as the US Conference of Catholic Bishops (USCCB), law enforcement agencies, and state legislatures to address child sexual abuse.51 In response to landmark US cases, the USCCB drafted the first policies and protocols for responding to abuse claims that were not reliant on canon law, and conducted the first research into Catholic religious sex offenders. The ’s response can also be traced to punctuated legal developments in the US, as can the developments in church protocols and procedures in other countries, including Australia and Ireland, in the 1980s, 90s and 2000s. While clearly inadequate, all were necessary steps made towards justice.

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5. Method Informed by Connell that institutions are ‘gender regimes’,52 feminist political science has highlighted the ways in which formal and informal institutions reify and reproduce gender and gendered outcomes. In this section of this paper I use the term ‘institution’ not in the sense used above, but in the sense used by scholars of neo-institutionalism, a normative sub-discipline of the social sciences which defines institutions as ‘a collection of interrelated rules and routines that define appropriate actions in terms of relations between roles and situations’.53 The premise of neo-institutionalism is that ‘institutions matter, therefore that the organization of political life makes a difference’.54 Mule describes their significance as follows: Institutions are weapons of coercion and redistribution but they also help to mitigate collective action problems; they provide enforcement mechanisms for agreements and penalties for defections; national political institutions structure relationships among legislators, organized interests, political parties and the electorate; institutions are resistant to redesign ultimately because they incorporate vested interests in their standard operating procedures.55

Neo-institutionalism is differentiated from the original school of Institutionalism in its expansive definition of institutions to encompass formal institutions such as the parliament, law, bureaucracies and religious organizations, as well as amorphous informal institutions such as class and culture, and in its novel emphasis on the normative and dynamic nature of said institutions.56 In explaining political and policy phenomena, neo-institutionalism emphasizes the ‘logic of appropriateness’, or the norms and values within political institutions which are constituted of individuals acting in accordance with these norms and who in turn are shaped by the institution. A logic of appropriateness suggests that institutions constrain certain behaviors and encourage others. Although this logic ‘is not impermeable, it is difficult to unsettle as it is perpetuated by institutional actors who “embody and reflect existing norms and beliefs” and who seek to maintain the rules’.57

That institutions matter for gender is the premise of feminist institutionalism, which emphasises the normative and dynamic potential of different institutions to make a difference to gender.58 Feminist institutionalism scholarship has been particularly adept at examining the role of institutions in creating and sustaining gender equality outcomes, in comparative contexts (e.g. in the context of, women’s representation, electoral systems, and the provision of gender sensitive policy, and so on). Perhaps its most significant and simple contribution to the field has been the idea that, although typically promoted as a norm of neutrally, the logic of appropriateness of both formal and informal institutions is gendered. Therefore institutions are gendered. This means that the constructions of masculinity and femininity are intertwined in the daily culture and logic of political institutions rather than existing ‘out in society or fixed within individuals which they then bring whole to the institution’.59 Moreover,

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while both constructions of masculinity and femininity are present in political institutions, the masculine ideal underpins formal institutional structures, practices, discourses and norms.60 Nevertheless, institutions may be infiltrated, changed and gendered to advance gender equality outcomes, but only once the bias of ‘neutrality’ has been exposed.

Only recently have feminist institutionalism scholars begun to consider gender justice in this framework. Most notable is Louise Chappell’s analysis of the International Criminal Court’s prosecution of sex crimes in war. Chappell found that although the ICC is a new institution, and it explicitly addresses gendered injustices in new authoritative ways, it remains influenced by being ‘nested’ in web of prior historical norms of past legal and political institutions which fail to adequately conceive of the harm of sex crimes. Institutions, such as the court, have an ‘embedded and often hidden gender dimension – expressed through norms, rules and structures – which can be carried forward through institutional legacies and through their interaction with surrounding institutions. As a result, it is unlikely that even new institutions will offer an entirely clean slate for actors advancing gender equality’.61

Analyses such as Chappell’s, identifying the historical, normative constraints on political institutions to deliver gender justice, may have much to offer understandings of the confounding paradox of why it is that justice for crimes of Catholic child sexual abuse has been stymied in Ireland in Australia in the contemporary age in which is universally abhorred and child sexual abuse is understood as a profound crime constituting a grave . Feminist institutionalist methods may help explain, in part, why it is that victims in both countries are forced to plead for compensation in the shadow not of the law, but of the scandal that the church has successfully garnered the state’s assistance to quell.

Two subfields of feminist institutionalism are particularly relevant to this discussion: historical and discursive intuitionalism. Feminist historical institutionalism methods examine the consistencies and contingencies that shape institutions and which, in turn, are perpetuated by these same institutions. Initially primarily concerned with ‘path dependencies’ and affirmative ‘feedback loops’ to explain consistencies as well as the rigidity and incapacities of policies to adapt to new needs, situations and populations, historical institutionalism also considers institutional (and policy) change.62 The concept of institutional dynamism suggests that although institutions do tend toward stability and path dependency they are ‘not fixed, permanent or completely stable entities’.63 Even though they are imbued with a steadfast (gendered) logic of appropriateness, institutions of course do react and change over time, such as in response to ‘critical junctures’ such as ‘crises or shocks such as a natural disaster, terrorist attack, or an economic recession’64 – or perhaps a global crisis in organized religion such as the Catholic child sexual abuse scandal. Typically however, institutional change occurs as a

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more ‘incremental or evolutionary process’ and one goal of normative feminist political science should be to harness opportunities for change that favor gender equality, and gender justice, outcomes.

Feminist discursive institutionalism is not necessarily concerned with historical factors and contingencies, but rather identifies the roles of ideas and discourse in shaping institutions, and therefore their gender outcomes. Informed by discourse analysis approaches to political science, this method emphasizes the ideas by which policy (and legal) problems are framed when competing for political attention and leverage. In this framework, politics (and I would add, justice) becomes understood as ‘the result of interpretation’. That is, the result of ‘the ability to put one’s own interpretation of social relations and problems on the political agenda and thus to push for one’s own solutions’.65 Institutions that reify and perform politics and justice, therefore are constituted by, and perform the constitution of, prevailing discourses of gender, equality and justice. Accordingly, to enhance gender justice, gender equality discourses must be marshalled and made influential to institutions.

It is clear that over the past 40 years there have been formidable changes to the ways in which formal institutions including police services, the government, the church and the law address crimes of religious (and all) child sexual abuse, in all Western nations. These changes, which suggest profound institutional dynamism, developed incrementally informed at times by sudden advances in discourse, such as the naming/diagnosing of child sexual abuse in 1969,66 and discourses of justice produced by litigation in the US and Canada; as well as a more gradual incorporation of discourses such as feminism, secularism, children’s and victim’s rights and medicalised theories of psycho-sexual development and injury. In Australia, enduring significant changes to child protection policies and procedures were implemented in response to the ‘critical juncture’ of the revelations of the Wood Royal Commission in 1996. At the same time, perplexingly, it is evident that select, powerful, historically embedded institutions (which should be understood as the ‘collection of interrelated rules and routines that define appropriate actions in terms of relations between roles and situations’) have persisted in the face of compelling political change.

In both Australia and Ireland, the immunity of the church to publicly court-determined civil justice has been upheld by a mix of historically contingent and enduring formal and informal institutions constituted of discourses that privilege the patriarchal institution of the church, which has succeeded in dominating politics and justice, it would appear, by framing the problem of Catholic child sexual abuse as one suitable to be remedied via confidential settlements determined privately by the church, if at all. With this observation in mind, the task of feminist insitutionalism analysis in this area should be to ask the following instrumental questions:

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1. what is the (gendered) ‘logic of appropriateness’ that informs the various institutions that have acted in concert to provide this immunity? 2. by what historical contingencies and discourses is this logic informed? 3. what are the avenues and opportunities for change (what would it take to expose this logic as gendered and unjust)?

6. Logic. One essential obstacle to civil justice in Australia is that of tort, and following Lytton’s argument, the essential solution may be tort as well. Hence I suggest that it is in the field of feminist critical legal theory addressing torts of sexual harms that answers to the questions above may begin to be sought. Leaving aside momentarily the crucial obstacles of limitation acts, unincorporated church organizations and evidentiary problems of historic abuses, it is the courts’ treatments of torts of liability associated with institutional child sexual abuse in Australia that have provided the fundamental insurmountable obstacle to gender justice in this arena. The courts have been reluctant to extend liability (direct and vicarious) to torts of intentional sexual harms. The logic of these decisions reveals not only the internal logic of the courts, but may also suggest the logic and discourses informing the nexus of other political institutions implicated in providing the church immunity.

The leading case is that of Lepore, in which the Australian High Court considered inter alia whether the state should be held vicariously liable for sexual assaults performed on a pupil by a teacher at school.67 Contrary to recent Canadian and English decisions, the majority in Lepore were unable to conceive of a teacher’s criminal sexual assaults as being performed in ‘close connection’ to the normal course of his employment duties – one test for vicarious liability of an enterprise. For Callinan J, there is clear difference between negligent and criminal conduct: ‘sexual assault by a teacher represents such a distinctive departure from anything that a teacher is employed to do that vicarious liability could never be found’.68 For Gleeson CJ, although it might be possible for vicarious liability for sexual abuse to arise in educational institutions in which teachers ‘have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy’, this was not a fitting analysis for non-residential schools such as those considered in Lepore: ‘It cannot be said that the risk of sexual abuse ought to be regarded as an incident of the conduct of most schools, or that the ordinary responsibilities of teachers are such that sexual assaults on pupils would normally be regarded as conduct (albeit serious misconduct) within the scope of employment’.69 Hence vicarious liability should not arise in such instances.

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The UK Supreme Court has expressed ‘surprise’ at the Australian decision, which continues to inform understandings of institutional liability for child sexual abuse,70 such in the 2007 case of Ellis, and the PAO & Anor v Trustees of the Roman Catholic Church case, both concerning the Catholic Church.71 Nonetheless it remains the case that even in the UK and the US, where vicarious liability has occasionally been found to arise in instances of school and other religious institutional child abuse, the courts have struggled to adequately conceptualise the sexual risks to children in institutions that arise because they are in institutions. Jane Wangmann argues that decisions such as Lepore retain a conception of institutional child sexual abuse as ‘antithetical’ to the role of the teacher as means of upholding the integrity of the institution, thereby portraying the offender’s abuse as the actions of a depraved individual, rather than an institutional culture. Moreover, an emphasis on determining the nature of proper employment duties completely disregards the experiences of the child victim who was likely assaulted only because of the teacher’s employment role (not because the teacher was acting in antithesis to this role.72 As noted by Lytton, legal recognition of vicarious liability in such settings not only distributes the costs of justice but helps expose the systemic and institutionalised nature of these types of abuses.73

Investigating what is at the core of general motivations to uphold the integrity of institutions in sexual abuse cases, Martha Chamallas identifies what she calls the ‘sex exception’ in tort, whereby having accommodated acts of physical violence in vicarious liability doctrines, many courts continue to treat sexual harms as exceptions, that is, as different from other forms of violence. This distinction simply echoes ‘the sentiments of old fashion (pre 1970s) criminal laws that once approached rape and sexual assault as qualitatively different to other forms of violence and erected special legal barriers to prosecution’.74 Hence in many cases, courts ‘remain fixed on the sexual desire of the offending employee as reason to exempt employers from liability’.75 In contrast, feminist legal theory aims to resist this tendency to ‘classify sexual conduct as unique behaviour propelled exclusively by private (mostly physical) desires and urges’76 and instead highlight the organisational and socialised nature of sexual abuses committed in or facilitated by institutions, associated with gender and power.

Margaret Hall goes so far as to call for a reframing of vicarious liability in cases of sexual misconduct, to the concept of ‘institutional liability’.77 This would mean moving away from contemporary presumptions that sex offenders are deviant individuals who infiltrate institutions to gain access to their victims. Such understandings, evident in judgments like Lepore, portray institutions as secondary victims, rather than liable parties to the abuse. Hall argues that even in the contemporary age, in which knowledge of institutional child sexual abuse has never been greater, compelling tendencies prevail within law and other political institutions to continue to view institutional sex offenders as outsiders motivated by personal sexual urges, hence difficult to predict, control or forewarn of – ‘the paedophile like a hurricane or wild animal attack’. 78

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Despite decades of extensive inquiries and evidence produced at trial, the sexual abuse of children in institutions has undergone only a ‘partial reconceptualization from “accident” to syndrome’.79 Hence the radical and significant reforms to child protection policies by both government and the churches responding to ‘critical junctures’ over the past 20 years have focused on ‘preventive measures’ aimed at rogue individuals, such as employment screenings, sex offender registers, reporting protocols (mandatory notification) and surveillance. Yet as Keenan has shown, the patriarchal organisational culture of the homosocial Catholic Church in particular is deeply implicated in the sex crimes of numerous individuals having been minimised if not facilitated and concealed via international criminal conspiracy. In Catholicism, the ‘wild animal’ sex offender was housed in a very accommodating animal sanctuary, for very many years. The criminal law’s attention to individual perpetrators as the fulcrum of justice extends beyond the courts to inform social discourse and thus makes for a ‘truncation of the meaning-making process’ as communities attempt to grapple with the nature and magnitude of institutional abuse,80 especially that sanctioned by patriarchal religious cultures based on gendered power regimes.

7. Conclusions Scholars of the Irish experience of Catholic child sexual abuse tend to perceive of the scandal as politically and socially unique in its devastating impact on the ostensibly ‘Catholic country’. Much has been made of the ‘special position’ granted in De Valera’s 1937 constitution to the Holy Catholic Apostolic and Roman Church as ‘the guardian of the Faith professed by the great majority of the citizens’, in explaining and illustrating the enduring power and immunity of the Church. Undoubtedly, the mass institutionalisation of care as poverty alleviation and independence from Britain in postcolonial Ireland has made for a national experience different from that of other common law countries coming to terms with the Catholic child abuse scandal. However, these differences only make the similarities in legal immunity for the Church in Australia and Ireland all the more curious and all the more compelling to investigate. In both countries the state has conspired to provide the church an immunity of sorts, in the face of overwhelming enduring evidence of organisational complicity in abuse.

In general, the global institutional child abuse scandal of the past 30 years presents a conundrum concerning the ways in which sexual harms are understood, legally, socially and politically. As Kathleen Daly documents, institutional child abuse has been an enduring feature perhaps of all societies with institutionalised care; it was only the intense attention paid by the mass media to child sexual abuse in the 1980s and 1990s that forged the issue as a problem for public policy. Sexual abuse focussed attentions dramatically, in ways in which institutionalised physical and emotional abuse and had not. And yet, as I have argued here, this attention has at times failed to translate into

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justice focused on holding institutions, rather than merely individuals, accountable. While the narrative of child abuse told by the media took ‘a sexual turn’ from the 1980s,81 the state continues to uphold ‘the sex exception’.

Feminist institutionalism methods would suggest that the contradictory discourses surrounding child sexual abuse and justice identified by feminist legal theory continue to compete with each other, alternatively presenting the problem as one of individual sexual urges and violence, and of institutional ‘failure’, but rarely one of institutional fault. Moreover, any institution complicit in maintaining the privileged legal position of the church - such as a bureaucracy, legislature, judiciary, investigatory commission or inquiry - will struggle to reconcile and incorporate discourses of institutional liability while maintaining its own internal ‘logic of appropriateness’, which is typically blind to the considerations of socialised gender and power informing feminist appraisals of sexual abuse, while being invested in upholding all institutions as detached neutral arbiters of justice and national interest.

A ‘logic of appropriateness’ suggests that within all institutions there prevails a ‘set of universal norms that can be used as a reliable prism through which to view the world’, and the operations of other institutions.82 These norms tend to presuppose and emphasise the coherence, neutrality and ‘just’ nature of the institution: aberrant behaviour is naturally classified as antithetical to the institution itself. While this logic is most stark and freely articulated in court judgments such as Lepore, it should be sought and identified in the motives and activities of the numerous government institutions that have worked in concert to shield the Catholic Church from liability in Australia and Ireland. In both countries a tacit pact has been made in which individual ‘paedophile priests’ have (finally) been sacrificed on the altar of public opinion via the criminal law, while state and church institutions work together to defend their integrity as secondary victims of monstrous individuals.

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1 Lytton, T. Holding Bishops Accountable. How Lawsuits Helped the Catholic Church confront Clergy Sexual Abuse, Harvard University Press, 2008, p. 72. 2 McAlinden, A. ‘An Inconvenient Truth. Barriers to Truth Recovery in the aftermath of Institutional Child Abuse in Ireland’ Legal Studies, Vol 33, No 2, pp 189-214. 3 Keenan, M. Child Sexual Abuse and the Catholic Church: Gender, Power, and Organizational Culture. Oxford University Press, 2011. p.115. 4 Ibid, p. 238. 5 Murphy, Y. ‘Institutional Child Sexual Abuse: The Irish Experience’ Judicial Officer’s Bulletin, Vol 25, No 4, p. 30. 6 Brennan, C. ‘Facing what Cannot be Changed: The Irish Experience of Confronting Institutional Abuse’ Journal of Social Welfare and Family Law, Vol 29, Nos 3-4, pp. 248-249. 7 Thejournalie. Fifteen years on, how States of Fear changed Irish society. Retrieved 11 June 2015, http://www.thejournal.ie/states-of-fear-anniversary-1443458-May2014/ 8 Ibid. 9 Holohan, C. In Plain Sight. Responding to the Ferns, Ryan, Muprhy and Cloyne Reports, Dublin, Amnesty International Ireland, 2011, p. 25. 10 Lytton, T. Holding Bishops Accountable, p. 195. 11 Michael Murray and David Gibson v Commission to Inquire into Child Abuse, Minister for Education and Science , Ireland and the Attorney General [2004] IEHC 102. 12 McAlinden, A. ‘An Inconvenient Truth’, p. 202. 13 Brennan, C. ‘Facing What Cannot be Changed’, p. 250. 14 Ryan, S. Commission to inquire into child abuse report (Volumes I - V). Dublin: Stationery Office, 2009. 15 Holohan, C. In Plain Sight. p. 25. 16 Brennan, C. ‘Facing What Cannot be Changed’, p. 252. 17 Arnold, B. The Irish Gualg. How the State Betrayed its Innocent Children, Dublin, Gill & McMillan, 2009, p. 123. 18 The Residential Institutions Redress Board. Annual Report of the Residential Institutions Redress Board 2013. Retrieved 11 June 2015. http://www.rirb.ie/annualReport.asp p. 53. 19 Arnold, B. The Irish Gulag, pp. 122-127. 20 Delahunty v The South Eastern Health Board & Ors [2003] IEHC 132; Noctor V Ireland & Ors [2005] IEHC 50; Connellan v Saint Joseph’s Kilkenny & Ors [2006] IEHC 119. 21 O’Gorman, C. ‘State has put the interest of the Church ahead of victims' needs’, Irish Times, 2003, p. 14. 22 Breen, MJ, McGee H, O’Boyle C, Goode, H & Devereux, E. ‘ “Suing the Pope” and Scandalising the People: Irish Attitudes to Sexual Abuse by Clergy Pre and Post Screening of a Critical Documentary’, Irish Communications Review, Vol 11, pp. 77-92. 23 Murphy, Y, ‘Institutional Child Sexual Abuse’, p. 32. 24 Bray, A, ‘Concern Low Rate Convictions’, Irish News, 21 May 2013. Retrieved 11 June 2015 http://www.independent.ie/irish-news/concern-at-low-rate-of-convictions-for-clerical-abuse-cases- 29281949.html 25 Catholic Church Victoria, Facing the Truth. Learning From the Past. How the Catholic Church in Victoria Has Responded to Child Abuse. http://www.parliament.vic.gov.au/images/stories/committees/fcdc/inquiries/57th/Child_Abuse_Inquiry/Sub missions/Catholic_Church_in_Victoria.pdf Retreived 11 June 2015, pp. 20-26. 26 RTE News. 1 in 4 founder settles High Court action, 2003. http://www.rte.ie/news/2003/0409/37073- abuse01/ Retrieved 11 June 2015. 27 Porter, M. Sex, Power and the Clergy, South Yarra, Hardie Grant Books, 2003, p. 79. 28 Ibid, pp. 82-83. 29 Ibid. 30 Senate Standing Committee on Community Affairs. Lost Innocents: Righting the Record - Report on child migration Commonwealth of Australia, 2001. http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Completed_inquirie s/1999-02/child_migrat/report/index Retrieved 11 June 2015, Chapter 9. 31 Ibid. 32 Ibid. 33 Ibid.

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34 Daly, K. Redressing Institutional Abuse of Children. New York, Palgrave Macmillan, 35 Brennan, C, ‘Facing What Cannot be Faced’. 36 BrokenRites.org.au 37 ABC Radio. Royal Commission hears Ridsdale didn't know George Pell well, 2015. http://www.abc.net.au/pm/content/2015/s4243655.html 38 Baker, N & McKenzie, N. ‘Catholic Church's secret sex files’ Sydney Morning Herald, 17 November 2012. 39 Vedelago, C & Lee, J. ‘Catholic Church abuse claims were anticipated years before allegations were made’ The Age, 12 April 2015. 40 Family and Community Development Committee 2013, 185. 41 Burke 2002 42 McCarthy 2008. 43 Trustees of the Roman Catholic Church for the Diocese of Sydney and Pell v John Ellis [2007] NSWCA 117. 44 Commonwealth of Australia, Consultation Paper: Redress and Civil Litigation – Commonwealth Submission, 20015, pp. 2-4 45 Gleeson, K, ‘The Money Problem. Reparation and Restorative Justice in the Catholic Church’s Towards Healing Program’ Current Issues in Criminal Justice, ?? 46 Pell 2012. 47 McAlinden, A, ‘An Inconvenient Truth’. 48 Family and Community Development Committee 2013 p.519. 49 Keating in Family and Community Development Committee 2013 p.520. 50 Lytton, T. Holding Bishops Accountable. 51 Ibid, p. 8. 52 Connell, RW, ‘The State, Gender and Sexual Politics: Theory and Appraisal’ Theory and Society Vol 19, No 5, 1990, pp. 507-544. 53 March and Olsen cited in Chappell, L ‘Comparing Political Institutions: Revealing the :Gendered Logic of Appropriateness”’, Politics & Gender, 2006 Vol 2, No 2, p. 225. 54 March and Olsen cited in Krook, ML & Mackay, F ‘Introduction: Gender Politics and Institutions’ in Krook, ML & Mackay, F (eds) Gender, Politics and Institutions. Towards a Feminist Institutionalism. London, Palgrave Macmillan, 2011, p. 8. 55 Mule?? 1999, p.146. 56 Chappell, L ‘Comparing Political Institutions’ p. 225. 57 McAdam and Scott cited in Ibid. 58 Ibid. 59 Kenney cited in Krook, ML & Mackay, F ‘Introduction: Gender Politics and Institutions’, p. 6. 60 Krook, ML & Mackay, F ‘Introduction: Gender Politics and Institutions’, p. 6. 61 Chappell, L, ‘Nested Newness and Institutional Innovation: Expanding Gender Justice in the International Criminal Court’ in Krook and MacKay (eds) Gender, Politics and Institutions p.179. 62 Chappell, L, ‘Comparative Gender and Institutions: Directions for Research’, Perspectives on Politics, Vol 8, No 1, 2010, p.185. 63 Ibid. 64 Ibid. 65 Kulawik, T, ‘Staking the Frame of a Feminist Discursive Institutionalism’ Politics and Gender, Vol 5, No 2, pp. 265-266. 66 Daly, K, Redressing Institutional Abuse of Children, p. 19. 67 NSW v Lepore (2003) 195 ALE 412. 68 Ibid at 499. 69 Ibid at ?? 70 The Catholic Child Welfare Society and others v. Various Claimants and The Institute of the Brothers of the Christian Schools and others 71 PAO, BJH, SBM, IDF and TMW v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Ors [2011] NSWSC 1216. 72 Wangmann, J, ‘Liability for Institutional Child Sexual Abuse: Where Does Lepore Leave Australia?’ Melbourne University Law Review, 2004, Vol 28, pp. 195-197. 73 Ibid. 74 Chamallas, M, ‘Vicarious Liability in Torts: The Sex Exception’, Valparaiso University Law Review, 2013, Vol 48, p. 137.

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75 Ibid, p. 140. 76 Ibid. 77 Hall, M, ‘After Waterhouse: Vicarious Liability and the Tort of Institutional Abuse’ Journal of Social Welfare and Family Law, 2000, Vol 22, No 2, pp. 159-173. 78 Ibid, p. 171. 79 Ibid. 80 Keenan, M, Child Sexual Abuse and the Church, p. 111. 81 Daly, K, Redressing Institutional Abuse of Children, p. 94. 82 Chappell, L, ‘Comparing Political Institutions’, P. 227.

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