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Sexual Assault and the Catholic Church: Are Victims Finding Justice?

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Sexual Assault and the Catholic Church: Are Victims Finding Justice? SEXUAL ASSAULT AND THE CATHOLIC CHURCH: ARE VICTIMS FINDING JUSTICE? JUDITH COURTIN Bachelor of Laws (Honours) Graduate Diploma in Legal Practice Bachelor of Applied Science This thesis is presented for the degree of Doctor of Philosophy Monash University (2015) Faculty of Law j Contents _A_bs_tr_a_ct~~~~~~~~~~~~~~~~~~~~~~~~~~v Statement of Candidate Contribution vi Copyright Notice vi Acknowledgements vii Preface viii Definition of Core Terms x Chapter 1 Introduction 1 1.1 Introduction 2 1.2 Background and context for this research 3 1.2.1 Media exposure in Australia 3 1.2.2 Victorian Parliament Inquiry 5 1.2.3 NSW Special Commission of Inquiry 5 1.2.4 National Royal Commission 6 1.2.5 Victorian Crime Prevention Committee 7 1.2.6 International Church-initiated Inquiries 8 1.2.7 International State-initiated Inquiries 13 1.2.8 International Royal Commissions 16 1.3 Why this research is important 17 1.3.1 Civil pathway 17 1.3.2 Criminal prosecutions 19 1.3.3 Victims of crime compensation schemes 23 1.3.4 The Catholic Church's internal complaints p rocesses 23 1.4 Aims of the research 24 1.5 What is justice? 24 1.5.1 Retributive justice 25 1.5.2 Corrective justice 25 1.5.3 Distributive justice 26 1.5.4 Restorative justice: victim-centred justice 26 1.5.5 Procedural justice 29 1.5.6 Transitional justice: truth recovery and denial 29 1.5.7 International human rights law principles: the right to the truth to end impunity 32 1.6 Outline of chapters 35 Chapter 2 Research Design: Methodology 37 2.1 Introduction 38 2.2 Project proposal: a conceptual framework 38 2.2.1 Research questions 39 2.2.2 Research audience 39 2.3 The research process: qualitative empirical research 39 2.4 Data collection: doing the study 40 2.4.1 Primary sources 40 2.4.2 Interview methodology 41 2.4.3 Audio files and transcripts 41 2.5 Ethical research practice and principles 42 2.5.1 Recruitment process 42 2.5.2 Addressing risks for the victims 44 2.5.3 Addressing risks for the researcher 45 2.6 Data analysis 47 2.6.1 Data management and coding 48 2.6.2 Analytic memoing 49 2.6.3 Describing and analysing concepts 49 2.7 The research process: doctrinal method 50 2.8 Limitations of the research 51 2.9 Conclusion 53 Chapter 3 Justice for victims of Catholic clergy sexual abuse in Australia 54 3.1 Introduction 55 3.2 Criteria for justice 55 11 3.3 The truth and its acknowledgement 57 3.3.1 The victim's truth and the Church's truth 58 3.3.2 Acknowledgement by the Catholic Church an d its hierarchy 60 3.3.3 Acknowledgement by the offender 62 3 .4 Accountability of the Catholic Church and its hierarchy 64 3 .4.1 Criminal prosecutions for concealment 64 3 .4.2 Mandatory reporting 65 3 .4.3 Ability to sue the Church 65 3 .4.4 Transparent and fair processes and p rocedures 66 3 .4.5 Additional proposals 66 3.4.6 Discussion 67 3.5 Monetary compensation 68 3.5.1 Why compensation is necessary 68 3.5.2 Type of compensation needed 70 3.5.3 How the compensation is to be paid 71 3 .5.4 Compensation: Does it heal the pain ? 71 3 .5.5 Discussion 71 3 .6 Accountability of the offender 72 3.6.1 Prosecutions 72 3.6.2 Laicisation 73 3 .6.3 Discussion 74 3.7 Apology 75 3 .7 .1 Essential ingredients of an effective ap ology 76 3.7.2 Discussion 77 3.8 Counselling and other services 79 3.8.1 Discussion 80 3.9 Prevention of further crimes 81 3.9.1 Discussion 81 3.10 Justice for secondary victims 82 3.11 Conclusion 82 Chapter 4 Civil Litigation: Looking for Justice I 83 4.1 Introduction 84 4.2 Australian law 85 4.2.1 Current Australian position: Lepore 85 4.2.2 Non-delegable duties 87 4.2.3 Vicarious liability 89 4.2.4 The Ellis defence 96 4.3 Recent developments 98 4.3.1 Life after LJster: the 'Catholic cases' in th e UK 99 4.3.2 Discussion 111 4.4 Liability in Australia 112 4.5 Conclusion 113 Chapter 5 Criminal Jurisdiction: Looking for Justice II 114 5.1 Introduction 115 5.2 Prosecutions 116 5.2.1 Prosecution cases 117 5 .2.2 Discussion 119 5.3 Victims' experiences of the criminal justice system 119 5.3.1 Discussion 122 5 .4 Convictions: Do they bring justice? 123 5.4.1 Discussion 126 5.5 Guiltypleas 126 5.5.1 Discussion 129 5 .6 Victims of Crime Assistance Tribunal 129 5.7 Conclusion 130 Chapter 6 Australian Catholic Church's Internal Complaints Processes, Towards Healing and the Melbourne Response: Looking for Justice III 131 6.1 Introduction 132 6.2 The four themes 133 6.2.1 Differences between the Melbourne Response and Towards Healing 134 6.2.2 Themes 135 111 6.3 Theme one: The truth 135 6.3.l Minimisation of the truth 136 6.3.2 The truth about the offender 142 6.3.3 Containment of the truth 144 6.3.4 Victims silenced 145 6.3.5 Summary: Theme one 146 6.4 Theme two: Healing of victims 147 6.4.1 General impacts on victims 147 6.4.2 Specific mental health impacts on victims 148 6.4.3 Causes and sources of the impacts 149 6.4.4 Discussion 151 6.4.5 Summary: Theme two 152 6.5 Theme three: Legalistic approaches 152 6.5.1 Compassionate responses 152 6.5.2 Legal representation 154 6.5.3 Investigations and examinations 157 6.5.4 Threats and conditions 159 6.5.5 Summary: Theme three 162 6.6 Theme four: Compensation, apology, counselling and decision-making 162 6.6.1 Compensation 163 6.6.2 Apology 165 6.6.3 Counselling 168 6.6.4 Decision-making and review 169 6.6.5 Summary: Theme four 171 6.7 Conclusion 171 Chapter 7 Evaluation of the pathways to justice 174 7.1 Introduction 175 7 .2 Criteria for justice 1 75 7 .3 Civil litigation 177 7.4 Criminal prosecutions 1 78 7 .5 Victims of crime compensation schemes 180 7.6 The Melbourne Response and Towards Healing 181 Chapter 8 Conclusion 186 8.1 The research and its findings 187 8.2 The research and the Australian inquiries 188 8.3 Significance and implications of findings 189 8.4 Requisite reform 190 8.5 Need for further research 196 8.6 Concluding thoughts 197 Bibliography 198 Articles, Books and Reports 198 Case Law 206 Legislation 207 Treaties and other UN Documents 207 Other 208 Appendices 211 Appendix 1 The Author's Advocacy 211 Appendix 2 Victims of Crime Assistance Tribunal, Victoria 212 Appendix 3 Towards Healing and the Melbourne Response 216 Appendix 4 Letters to legal and non-legal advocates 226 Appendix 5 Interview locations 234 Appendix 6 Interviewee codes 235 Appendix 7 Letters to primary and secondary victims v ia advocates 236 Appendix 8 Letters to victims who contacted researcher directly 240 Appendix 9 Letters to legal professionals and non-legal advocates 244 Appendix 10 Explanatory statement 254 Appendix 11 Consent form 257 Appendix 12 Primary victim data 258 Appendix 13 Secondary victim data 259 Appendix 14 Primary victims associated with secondary victim interviewees 260 IV Abstract Over the last two to three decades in Australia, and internationally, there has been increasing exposure of institutional child sex crimes within the Catholic Church which has prompted demands for justice. In 2012, the Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Non-government Organisations was established as was a commission of inquiry into the Maitland-Newcastle Diocese in New South Wales. At the end of 2012, a national Royal Commission was set up to investigate child sexual assaults in government and non-government institutions, including the Catholic Church. This doctoral thesis commenced two years before these inquiries. It is a qualitative empirical study and case law analysis that sets out to determine whether victims of Catholic clergy sexual abuse in Australia are finding justice. To tackle this line of investigation, 70 people from Victoria and New South Wales, including primary and secondary victims, were interviewed about their experiences with civil litigation, cr iminal prosecutions and the Catholic Church's internal complaints processes. In order to determine whether victims had found justice within these processes, a preliminary question needed to be addressed: 'What is justice for these people?' This latter line of inquiry identified seven critical criteria for justice for victims. These criteria were employed ultimately to evaluate the three pathways to justice, as outlined above. The findings of this research demonstrate that victims of clergy sexual abuse interviewed in this research are not finding justice. Further, those victims who attended the Church's internal complaints processes, the Melbourne Response and Towards Healing, as well as not finding justice, suffered additional abuse and harm. The thesis concludes by outlining the significance of these findings and the types of reforms necessary to effectively address the justice needs of victims and their families , as identified in this research. v Statement of This thesis contains no material which has been accepted for the award of candidate any other degree or diploma in any university or other institution and affirms contribution that to the best of my knowledge the thesis contains no material previously published or written by another person, except where due reference is made in the text of the thesis.
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