By Mary W Maxwell, PhD, LLB
Julia Gillard, when she was prime minister of Australia, gave the go-ahead for a Royal Commission that is funded to last from 2013 to the end of 2017. It investigates the “Institutional Response to Child Sexual Abuse.” The persons we most should thank for this absolutely amazing Royal Commission are the victims of that abuse. They struggled for years against the rejection of their story and insisted that it be dealt with.
They have won some unexpected prizes for all of us. I will argue here (in a multi-part series) that the odd combination of an authority, Parliament, digging deep into another authority, the Church, is yielding insights that could not otherwise have come about.
This article lays out the legal structure of the commission and reports on only one case study, that of the Jehovah’s Witnesses. You will be surprised to hear that when the records were demanded by a search warrant, it was found that Watchtower Australia (that’s the legal name for the Jehovah’s Witnesses) had over a thousand cases of child sexual abuse dating back to 1950 and not one was referred to police.
What Is a Royal Commission?
In 1902, just a year after the Australian nation came into existence, Parliament created a Royal Commission Act. (Some of the states have a similar Acts.) Such a commission is an investigatory body. It’s not part of the judicial system. It has no means to punish anyone and can’t provide legal resolution to an aggrieved party. It can, however, make recommendations.
The reason it appears to have a strong hand is that it can do what a court does in terms of subpoenaing witnesses. They must answer any questions asked, on penalty of a fine or imprisonment if they refuse. If they lie, that is perjury, a crime. (This non-court can’t try them for that crime, but it can recommend such.)
The commission also has power to search for documents or other evidence and to seize it. The search warrant can be carried out by the Australian Federal Police or state police assisting the commission. Section 4 of the Act says they may enter the premises and “3(c) seize any of the relevant things.”
The current Royal Commission, for which Letters Patent came from the Queen, has two justices, Peter McClellan and Jennifer Coate. They have wide discretion. For instance, they have ordered the names of survivors (i.e., victims) to be kept private. Testimony from those persons is entered with a three-letter pseudonym, such as BKA.
On December 11, Justice McClellan refused Cardinal Pell’s application to give his testimony by video link from Rome, instead of having to appear in the Melbourne court. Some of the survivors, attending as spectators, showed delight that the Royal Commission did not bow to the cardinal’s wishes.
The Place of Religion vis a vis Law
Sexual abuse of children in church context has been rife. This Royal Commission is mainly asking “How the hell did it continue to happen?” Anyone is welcome to contribute information. Even now you may contact the commission (telephone 1-800-099-340).
Let us note how the right of a religion to guide its people compares with the government’s right to punish crime. Take the case of Sharia law for Muslims. You may wonder when you hear that an Imam makes a decision for a marriage dispute within Oz. Huh? Do we have Sharia law here?
Not exactly. We have “private law.” Any two citizens in conflict can ask anyone to help them solve it. They can also agree to be bound by what that person or organization says. Note: this is voluntary on their part.
Does the state approve of such things? The state doesn’t want to enter into private matters. So we should be pleased, not alarmed, that religions, or any other entities, can help people with disputes – as long as the parties truly consent.
As far as criminal law goes, however, there is no escape from public law. Even if your religious group holds that such-and-such is morally permissible, you can’t plead that in court. (I mean you can plead it, but so what.) And of course you can’t say that as a clergyperson you’re above the law. Ha!
A modification of criminal law has been granted to Aboriginal persons, but only in regard to sentencing. If the judge deems that the convicted person is likely to suffer additional tribal punishment, such as spearing, she can lessen the official punishment.
How Did Child Sexual Abuse Remain Hidden?
How did such terrible sexual abuse happen right in our midst? Didn’t parents complain? Didn’t non-abusing teachers see what was going on? Did anybody think to call the police?
The Letters Patent issued by “Queen Elizabeth the Second, by the Grace of God Queen of Australia,” for this Royal Commission says, in its terms of reference:
“AND it is important that claims of systemic failures by institutions in relation to allegations and incidents of child sexual abuse … be fully explored, and that best practice is identified so that it may be followed in the future both to protect against the occurrence of child sexual abuse and to respond appropriately when any allegations …occur.” [Emphasis added]
It turns out that part of the problem is that, yes, parents did complain (although often the child was afraid to tell the parent, who, in some instance, did not believe them) and, yes, teachers or other tried to Go Upstairs with the issue. Yet this failed to work, for reasons that I will discuss in this series.
Of course a church can easily cause its faithful to believe that it is the highest authority in the land. Thus the interference of the government, via this royal commission, is having a great benefit – it is showing us how this belief works and how it can cause confusion.
Today I will refer only to one case study: Jehovah’s Witnesses. It is Case Study 29. (This week the Commission is handling the Melbourne Catholic diocese, which is Case Study 35.)
Case Study: Jehovah’s Witnesses
Let me first summarize:
- This church has its own set of moral rules (as is usual); so a congregant, wanting to know if something is right and wrong, is directed to the particular scriptural passage or the particular doctrinal positional of this religion.
- This church, as an organization, constructs its own methods of dealing with problems that arise in the church. This church has a panel of Eldersto deal with such things. They wrote a document called Pay Attention.
- A church – like any organization – has pride and has expectation of the house-loyalty of members. Anyone threatening to make a complaint publically is naturally made to feel like a traitor to the group.
The Royal Commission’s Findings
[The following is a direct quote (with bolding added by Mary Maxwell)]
In response to the Royal Commission’s summons to produce, Watchtower Australia produced some 5,000 documents. Royal Commission staff analysed those files and produced the following data. [Victims BCB and BCG gave testimony.] …
Broadly speaking, allegations of child sexual abuse were handled in the same way as any sin was handled according to a system requiring reporting of serious wrongdoing to congregational elders. The elders would then investigate with a view to determining the veracity of an allegation.
If an allegation was proved in accordance with Scriptural standards, then the elders would form a judicial committee to determine the degree of repentance of the accused and the appropriate sanction….
… Pay Attention 1981 advised elders that ‘the law on ecclesiastical privilege in many countries does not require elders to report the offender or the offense to secular authorities’. [Wow.] Pay Attention 1991 suggested that the elders encourage the accused to report himself to authorities. [!!!]
Pay Attention 1991 otherwise discouraged Jehovah’s Witnesses from taking fellow Christians to secular courts to settle personal disputes and counselled that such disputes should be settled with the help of the congregation elders.
Failure to observe this injunction could result in restriction of congregational privileges…. Ultimately though, if an accused person denied wrongdoing and there was only one witness to the alleged wrongdoing, then a judicial committee would not be formed and the matter would be left in Jehovah’s hands.
Assessment of repentance
Pay Attention 1991 instructed elders that a judicial committee’s primary consideration in determining the appropriate sanction is the ‘the individual’s sincere repentance or the lack of it’…. [W]hether the individual had apologised to the person offended was a relevant consideration in the assessment of repentance….
Elders were instructed that ‘[n]either the gravity of the wrong nor bad publicity finally determines whether the person should be disfellowshipped’…
BCB gave evidence that during the second meeting Bill Neill was defensive and said that she used to wear revealing clothing. BCB also gave evidence that she did not feel supported and that her credibility was being tested by the elders.
The Royal Commission heard that again BCB felt too uncomfortable to disclose to the elders the full extent of her abuse by Bill Neill. BCB [said] that nobody explained to her the purpose of either meeting. Mr Horley gave evidence that he could not recall what was explained to BCB….
It is submitted that despite having evidence that BCH had sexually abused BCG’s three sisters, the judicial committee disfellowshipped BCH for dishonesty in relation to child sexual abuse, not for the child sexual abuse itself…. [!]
Elders are instructed that child sexual abuse includes:
… sexual intercourse with a minor; oral or anal sex with a minor; fondling the genitals, breasts, or buttocks of a minor; voyeurism of a minor; indecent exposure to a minor; … it may also include “sexting” with a minor….
The Jehovah’s Witness organisation also instructs elders that child sexual abuse is captured by one or more of the following Scriptural offences:
- a) porneia, which includes sexual intercourse, oral or anal sex, ‘immoral use of the genitals, whether in a natural or perverted way, with lewd intent’
- b) brazen or loose conduct, which is conduct which reflects ‘an attitude that betrays disrespect, disregard, or even contempt for divine standards, laws, and authority’…and
- c) gross uncleanness [including] an adult involving a child in the viewing…
[End of Royal Commission quote]
In general, we see, from Watchtower Australia, how depriving a person of Fellowship was seen as a severe punishment. Indeed, ostracism from the group has always been a standard means by which a society attempts to control the behavior of members.
I point to an important obstruction of justice in this group’s protocols. If only one individual complained, with no witness to the act, the elders did not form a judicial committee to investigate. Since when does intimate sexual behavior have witnesses?
I hope the Royal Commission, in its summing up, will not just say “OK, we have located the stumbling block. It was the bit about unwitnessed acts not earning a judicial committee.” I would want them to think about the possibility that such a rule was purpose-built for sexual abuse.
As I have said elsewhere, I smell a rat, or a racket, in the entire phenomenon of church officials shielding the child abuse. Let me stick my neck out and say that we should inquire into the possibility that that the harming of children was a policy.
Personally I suspect it was so. Hurting children was a goal, not a byproduct of some priests’ sexual addiction. At the moment that appears to be the best explanation for the very peculiar testimony that the commission is receiving from church officials on the witness stand.
In the next parts of this series, I’ll talk about Geelong Grammar and the Catholic dioceses of Melbourne and Ballarat. Stay tuned for some big surprises.
— Mary W Maxwell is the author of Fraud Upon the Court. She was a Visiting Scholar at Emory Law School in 2001, in the Department of Law and Religion. She can be reached at her website ProsecutionForTreason.com.