Not good enough

Frank Lynch, Wilsons Creek

The recent ABC series Revelation is a tragic reminder of the power imbalance afflicting Australian society where Catholic clergy are able to dominate susceptible, often orphaned, young persons, perpetrating shocking sexual abuse and causing life-threatening psychological damage.

As Cardinal Pell’s appeal case was argued before the High Court I felt uneasy about the difficulty the Crown had in seeking to have his conviction upheld. There was that window of 5-6 minutes in the sacristy of St Patrick’s Cathedral, which raised credible questions about whether the opportunity for the acts to take place really existed.

In the opinion of the High Court, the Crown was not able to discharge the onus of proving that the acts, as alleged, did occur. In such cases, if a doubt lingers, then despite the jury finding that the case was proven beyond reasonable doubt, an appeal court will likely override the jury’s verdict.

The most troubling aspect of this whole sorry saga is that the power relationship is so heavily weighted against the victim.

Consider the notorious members of clergy interviewed in Revelation. They are manipulative, opportunistic, often charismatic, skilful at transferring guilt to gullible youth, and are chronic repeat offenders, acting with apparent impunity. They have immediate recourse to the cleansing power of the confessional, so why be concerned by the law of civil society? And then there was (and possibly still is) the over-arching protective umbrella of their clerical hierarchy.   

Lawyers would argue that the presumption of innocence is sacrosanct in our system of justice; that a case needs to be proven beyond reasonable doubt, and that despite the glaring power imbalance, the accused may choose not to give evidence, and so is spared the possible threats inherent in cross-examination.

I harbour serious misgivings about these principles in cases like those involving innocent young persons who have been abused, who live in awe of the clergy, who feel so guilty, or shamed, by their experiences that they do not speak up to their parents (if they have them) or guardians (who are often in awe of the very same abusive clergy). And in many cases years go by without investigation, and so the body of evidence diminishes with time.

Given that the abusing usually occurs in private, and that the abuser likely acts strategically in committing abuse, how can a young victim hope to prove a case beyond reasonable doubt?

In such cases much more emphasis should be given to the jury’s finding, as they are the ones who viewed first hand a victim’s demeanour in testifying. I feel, that with inadequate protection of these tragic victims, that Australia might have a legal system – but it is not a justice system suited to victims of abuse.