The compensation agreements for sexual abuse signed by members of the Catholic Church have given rise to the questions: Why weren’t these matters reported to the police? and Surely those who did not report them are themselves guilty of a crime?
They are serious legal questions. Australian law – having its roots in the common law of England – is robustly individualistic. It is fairly slow to apply civic duties. The law imposes no obligation to help people in distress, unlike European countries. One can walk past a drowning infant or watch a blind person walk towards a cliff edge and the law says there is no requirement to do anything, even if only the slightest effort would avoid catastrophe. It is immoral, of course, but we are not talking about morality here.
There are some requirements with respect to crime, but not very onerous ones.
Critics of the church say it has been buying silence with non-disclosure clauses in compensation agreements. The church says it has been paying compensation for the civil wrong (the tort) of assault. Assaults are both civil wrongs, giving a right to victim to sue for damages and a criminal wrong enabling prosecution and jail. The church says that either there were no non-disclosure clauses or they were limited – usually to prevent the fact of the payment from being used in subsequent court proceedings.
Are these ”cover-ups” or agreements themselves a breach of the criminal law?
Every day we witness criminal activity but do not report it. We see people speeding and committing other traffic offences. We are often victims of petty theft and do not report it.
But the sex-abuse cases are different. First, the crimes are more serious. Secondly, the church officers who sign or who authorise the signing of the agreements know the name of the perpetrator, the same of the victim, the exact nature of the crime – including times and places.
Still, in Australia there is no general duty to report crime, even specific crimes. We have in the ACT the Children and Young People Act with similar legislation elsewhere. It sets out a list of people like health workers, carers, government workers with responsibility for children and imposes upon them the duty to report suspicion of sexual abuse on pain of six months jail. Te fact that a special Act of Parliament is required to mandate this reporting by these people shows that there is no general legal duty on everyone else to report sex abuse or indeed any other crime. In any event, the Catholic Church was compensating adults long after the event.
Still, there are two other possibilities.
Could the church officials be charged with being accessories after the fact? An accessory is someone who did not commit the crime, but who somehow helps the criminal. A famous case was that of Michael Chamberlain he was charged “that he did receive or assist another person, Alice Lynne Chamberlain, who to his knowledge was guilty of an offence against the law of the Territory, namely the offence of murder . . . , in order to enable the said Alice Lynne Chamberlain to escape punishment.”
He was later shown to be innocent. It may be that in the sex-abuse cases the intention of the church officials was to pay the victim so he or she was less likely to file a police complaint. That might be difficult to prove, especially as the lawyer-drafted agreements allowed for disclosure “”if required by law”. A further difficulty was posed by Justice Lionel Murphy in Chamberlain. He said, how could the alleged accessory “”know” someone was guilty of an offence unless they had been convicted of it. Church officers would say that they had sufficient suspicion on the civil burden of proof to warrant a pay-out, but were not sure of guilt and were ready to co-operate with police if required (without volunteering, of course, because the law does no impose that duty).
Then there is the question of conspiracy to pervert the course of justice. In the famous case of Roger Rogerson, Justice Anthony Mason said, “I agree with Brennan and Toohey JJ. that an act which has a tendency to deflect the police from prosecuting a criminal offence . . . is an act which tends to pervert the course of justice and, if done with intent to achieve that result, constitutes an attempt to pervert the course of justice and can ground the offence of conspiring to pervert the course of justice.” Once, again the difficulty is proving the intention. That the abusing priest escapes police inquiry could be put down to possible (by not inevitable) consequences of giving compensation to the victim – who might go away with the mistaken impression that he or she cannot go to the police.
Outside Melbourne, the church has given up on confidentiality clauses. They are of no use against a criminal prosecution, anyway. And insofar as they have been aimed at stopping damaging publicity, they have had the opposite effect. The church might threaten victims with demanding the money back if they go to the press, but once again it would be self-defeating. Moreover, the victim (if not feeling intimidated) might counter by going to the police.
The church’s attempt to cover-up has in practice back-fired, but it is not a breach of the criminal law. It is immoral, of course, but we are not talking about morality here.