Church abuse protocol is no joke

It is very gratifying that Pope Benedict took the opportunity of his World Youth Day visit to apologise to the victims of sexual abuse by clergy and other church personnel. He ended his visit by celebrating mass with some victims, having already made his own courageous decision to say sorry for the pain and suffering endured.

His apology was heartfelt and included a clear directive to the local church to extend compassion, care and justice to the victims.

During his visit, some persons expressed dissatisfaction with the Catholic Church's protocol Towards Healing, which sets out the principles and procedures for the Church response to complaints of abuse against Church personnel. Father Chris Riley went so far as to label it “a joke”, with the perpetrators being the only winners.

I beg to differ. Towards Healing, established in 1996 and revised in 2000, is continually reviewed. There may well be defects in the protocol's application by some church authorities. But it would be a disaster for victims of abuse if the church were to dismantle Towards Healing leaving victims to rely solely on the civil law. The protocol and its application need to be assessed against the backdrop of Australian law.

Sexual abuse of a child by an adult is always a serious criminal offence. The perpetrator is not only criminally responsible but also civilly liable for damage caused to the victim. If the perpetrator is employed in a situation involving regular contact with children, the victim might want to sue the employer as well as the perpetrator.

In 2003, the High Court of Australia decided three cases on the liability of the State for sexual abuse of students by state school teachers. The court decided that state education authorities are not liable for the wrongs of these teachers unless the authorities themselves have been at fault. Chief Justice Gleeson said:

The legal responsibilities of such an authority include a duty to take reasonable care for the safety of pupils. There may be cases in which sexual abuse is related to a failure to take such care. A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil.

The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal. Breach of that duty, and consequent harm, will result in liability for damages for negligence.

Following this reasoning, a Church could be liable for the negligence of (say) a bishop who failed adequately to screen or supervise a Church worker or to investigate thoroughly any complaints made about a worker. If there was no evidence of negligence in recruitment or supervision, the Church would not be directly liable for the wrong committed by the worker.

In law, an employer could still be vicariously liable for the damage caused by a worker committing a criminal act if the act occurred in the course of employment. When dealing with this vicarious liability, Chief Justice Gleeson observed that “where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment”.

In one of the cases considered by the Court, not even abuse by a teacher of primary school students in a one-teacher country school entailed vicarious liability of the teaching authority.

In most cases, churches like other employers and service providers are unlikely to be civilly liable for the criminal abuse committed by their workers provided the workers have been properly supervised at all times. In Australia, the victims of sexual abuse are unlikely to succeed in court against anyone but the perpetrator or against a callously negligent employer or supervisor who had little regard for the signs that there may be a sexual predator in their midst. There are many hurdles for a victim wanting to sue anyone but the criminal perpetrator.