The Catholic Church is investigating George Pell’s case. What does that mean?


Ian Waters, University of Divinity

Cardinal George Pell was this week sentenced by a Victorian court to six years’ jail for sexually abusing two choirboys, with a non-parole period of three years and eight months.

Although Pell was found guilty of the charges against him in December, he has remained a Cardinal in the Catholic Church. The Church previously said it would await the outcome of an appeal before taking action, but it has since confirmed that an investigation of Pell’s case will be conducted by the Congregation for the Doctrine of the Faith.

An American former cardinal was recently expelled from the priesthood by the Church following a canonical trial into claims of child sexual abuse. Here’s what it could look like if Pell was subject to a similar process.




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Canonical trials are governed by the rules of the Church

Most cases concerning the wrongdoing of Catholics are tried in secular courts. The decisions and punishments handed down by the courts are normally accepted by the Church as sufficient.

But the Church will conduct its own examination of cases where the church’s canon law requires punishment outside the competence of the courts of the land. That includes the excommunication of a member of the church, or the dismissal of a priest or bishop from the clerical state – often referred to as defrocking.

Tribunals to adjudicate matters that concern the Church’s own internal governance are principally governed by the rules and regulations of the Church, which are known as canon law (from the Greek etymology κανών or kanon, meaning a “rule”). These regulations are set out in the Church’s Code of Canon Law, which came into effect in 1983.

Since such trials are conducted because of the requirements of canon law, they are known as “canonical trials”.




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How an appeal could uphold or overturn George Pell’s conviction


Sexual abuse cases are handled by the Holy See

Catholic Church tribunals are normally held in the diocese of the parties to the case. The bishop of the diocese can judge cases for his diocese. But since bishops often have little or no in-depth knowledge of canon law, most cases in Catholic Church tribunals are handled by judges (clerics or laypersons) appointed by the bishop. The presiding judge is a priest known as the judicial vicar.

Some matters cannot be introduced at a diocesan tribunal, but are reserved for the various tribunals at the Holy See. This includes cases involving dioceses and bishops, and certain serious matters regarded as crimes in the Catholic Church. Examples of this would be matters of sacrilege (offences against the sacraments), and sexual offences by a cleric against a minor under the age of 18.

A college of judges try difficult cases

Usually a single judge presides over contentious and penal cases. But a college of three or five judges will normally try more complicated or difficult cases – especially if the prescribed penalty is an excommunication from the Church, the dismissal of a cleric, or if the case concerns the annulment of a marriage or an ordination.

Other officers of the tribunal include the promoter of justice, who is the prosecutor in penal cases. The tribunal also has notaries who swear in witnesses, and commit their testimony to writing.

Like any legal system, parties in a case have the right to appoint an advocate who can argue for them at the tribunal. If a person cannot afford an advocate, the tribunal can assign one to them free of charge.




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Defendants are presumed innocent

Catholic Church tribunals do not use the adversarial system used by the courts of the common law tradition. Rather, Catholic Church tribunals use the inquisitorial system law found in most European legal systems. That means the judges lead the investigation.

The standard of proof used by the Catholic Church tribunals is “moral certainty”. Certainty results from examination in good conscience of the available evidence. This isn’t the same as “absolute certainty”, but it’s more than mere probability. It is normally stricter than guilt “beyond reasonable doubt”, which is usually held to be the absence of doubt based on reason and common sense.

As a general rule, the defendant has the presumption of innocence, which means the defendant will win by default unless a majority of the judges is convinced with moral certainty of the petitioner’s case.The Conversation

Ian Waters, Professor, Lecturer, Department of Moral Theology and Canon Law, University of Divinity

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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How an appeal could uphold or overturn George Pell’s conviction


David Hamer, University of Sydney

A criminal trial often helps to provide finality for the accused, and closure for victims and society. But following this week’s news, George Pell’s barrister, Robert Richter QC, indicated Pell maintains his innocence and the legal team have already lodged an appeal. Richter said this would be pursued following Pell’s sentencing.

Pell’s conviction no longer appears final, but provisional. The Vatican initially said it would wait until the appeal outcome before launching its own investigation that could lead to the Cardinal being defrocked. But it has now been confirmed the investigation is starting regardless.

The Australian government, though, said it will only strip Pell of his Order of Australia honours if he loses the appeal. Meanwhile, the media and community are awash with confusion about the verdict that came in a retrial after the first trial concluded with a hung jury. It seems many people are holding their breath until the appeal is heard.

Defendants generally only get one appeal, though that one appeal may be taken further to the High Court. If Pell’s appeal is dismissed, he will require exceptional intervention from the Government, which is very rare.

So, what is an appeal, and what might it look like for someone with Pell’s profile and convictions?




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We knew George Pell was guilty of child sex abuse. Why couldn’t we say it until now?


How long would an appeal take?

The appeal process is fairly elaborate. It requires the Court of Appeal’s leave (or approval). If given, the defence and prosecution will make written submissions to the court. There is then a hearing, on the basis of which the court will make a decision, explain its reasoning, and make appropriate orders.

In this case, the court may dismiss the appeal, allow the appeal and order a retrial, or allow the appeal and order that Pell be acquitted. With a crowded list of cases, this entire procedure often takes more than a year. The Pell appeal may be relatively simple and decided more quickly.

Bail was revoked pending sentencing, anticipating a custodial sentence, and Pell will remain in custody until the appeal. If the appeal is upheld, the court may make a decision immediately following the hearing and publish its reasons subsequently.

Evidence at the trial

The trial did not involve a great deal of evidence. One of the alleged victims had made a report to police in 2015, claiming the assaults occurred after mass. The other alleged victim died of an accidental heroin overdose in 2014, apparently without reporting abuse.

Like many delayed sexual assault cases – almost 20 years in this case – there simply isn’t much evidence available. At Pell’s trial, there seemed to have been little more than the complainant’s allegations and Pell’s denials. Pell did not testify. Video of his denials to police were played to the jury.

The jury may have preferred to see how Pell coped with cross-examination. But he has the right to silence, and his failure to enter the witness box can’t be used against him.

A few other witnesses gave evidence about the masses delivered by Pell at St Patrick’s Cathedral, where the abuse allegedly took place. They supported the defence’s claims of the impossibility of the abuse taking place. Witnesses noted the then Archbishop Pell would have been accompanied at all times during the crowded events and would not have had the opportunity to commit the offences.

Other types of evidence often relied on by the prosecution in child sexual abuse trials did not feature in the Pell trial. The prosecution wasn’t able to present the complainant’s earlier reports of abuse. It seems he told no one prior to the police report.

The absence of earlier reports would not necessarily help the defence. Courts now recognise there are many reasons why victims of child sexual assault find it hard to talk. They feel confused and powerless, particularly where the offender is in a position of authority.




Read more:
Triggering past trauma: how to take care of yourself if you’re affected by the Pell news


Many child sexual assault prosecutions rely on evidence of other alleged victims to demonstrate the defendant’s propensity or tendency for child sexual abuse. Such evidence was potentially available in the Pell trial – other allegations had been made from his time in Ballarat in the 1970s.

However, this evidence was not admitted at trial. The two sets of allegations were kept entirely separate (and the trials split), perhaps to avoid the risk of jury prejudice. Pell’s Melbourne convictions (in the cathedral trial) were suppressed while the Ballarat charges (swimmers trial) were pending.

It was only when the prosecution dropped the Ballarat charges that the convictions on the Melbourne charges were made public.

What would the defence appeal?

Because only limited evidence was relied on at trial, relatively few legal issues were raised. This means the defence may find it difficult to identify any legal error as a ground for appeal. Richter has indicated the defence will claim there were errors regarding the constitution of the jury and the defence not being permitted to use a graphic.

If errors are found, the Court of Appeal would still dismiss the appeal if the errors seem too slight to have affected the outcome.

The other defence argument on appeal could be that the conviction was unreasonable. The jury simply got the facts wrong. Here the defence may face obstacles. The Court of Appeal is unlikely to entertain claims the jury was prejudiced and blamed Pell for the Church’s inadequate response to other paedophile priests.

Appeal courts generally trust a properly directed jury will comply with its duties. Appeal courts are also generally wary of overriding jury verdicts, particularly where they rest upon witness credibility, as in this case. Inconsistencies and gaps in a complainant’s account may be attributed to the delay rather than fabrication.

However, the Court of Appeal may feel well placed to assess the defence argument of impossibility. And in this case, unusually, the court may be able to assess the complainant’s demeanour, since the witness testified over video link.

This may be one of those exceptional cases where the court is prepared to say the jury got it wrong. But the court may also hesitate to override the jury – the community’s representatives – in a case that has opened such a rift in Australian society.




Read more:
After Pell, the Catholic Church must undergo genuine reform


The Conversation


David Hamer, Professor of Evidence Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

For whom the Pell tolls: what did we learn from George Pell’s royal commission appearance?


Timothy W. Jones, La Trobe University

Cardinal George Pell returned this week to the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to the Ballarat and Melbourne case studies.

Giving evidence over the course of four days, via video link from Rome, Pell modified slightly his previous public positions. But, fundamentally, he insisted that he knew little, and fulfilled his duties in relation to what he did know.

On several occasions, counsel assisting the royal commission suggested that Pell’s claims to be ignorant of child sex offending in various contexts was implausible. If everyone around Pell knew, how could he not have known?

The forms of denial

One of the most important lessons we have learnt from Pell’s appearance is the church was – and still is – in a state of denial. It is in denial about the harms of sexual abuse, and about the adequacy of its responses to allegations of abuse.

Being in denial is a curious thing. In denying something, you implicitly admit that there is something to deny.

The late sociologist Stanley Cohen examined this phenomenon in his last book. Cohen argued that we have myriad techniques of keeping disturbing knowledge at bay: there are many ways of not knowing.

The simplest is literal denial. We saw plenty of this from Pell. He repeatedly said that he never knew of allegations of abuse; that he never heard rumours of Gerald Ridsdale’s offending when they shared a presbytery in Ballarat.

Even less plausibly, Pell claimed that advisors and colleagues deliberately kept information from him. As journalist David Marr wrote, Pell was apparently:

… hoodwinked decades ago by an archbishop, a bishop, his colleagues and even the Catholic Education Office.

A more nuanced way of avoiding knowledge is interpretive denial. This involves keeping knowledge at a distance by accepting a fact but giving it a different interpretation.

So, when questioned about his time as a consultor in Ballarat, Pell insisted that paedophilia was never mentioned in discussions of why priests were being moved unexpectedly between parishes. Many of his fellow consultors knew that child sex offences had been committed, and “homosexuality” may have been mentioned as the reason for the priest’s removal.

But Pell, incuriously, chose not to see the possibility that the homosexual conduct may have been intergenerational. He asked no questions, and admitted:

It was a sad story and of not much interest to me.

The most disturbing form of denial on display in Pell’s four days of testimony, however, is implicatory denial: a refusal to see the legal and moral implications that follow from information.

Pell went to great lengths to explain that, in almost all cases, he did everything that was appropriate to his role at the time. He was repeatedly challenged by counsel assisting and the commissioner, Peter McClellan, that a priest might have a moral responsibility that exceeds the literal duties assigned to their role. But Pell rejected this proposition:

He has a moral responsibility to do … what is appropriate to his position.

Pell claimed that in his positions as priest, consultor and auxilliary bishop, he did all that was appropriate to his position. He simply reported any allegations that he thought were plausible to his superiors. That they neglected their duties was not his responsibility.

What chance of change?

Pell may be right that that the lion’s share of blame for the gross miscarriages of justice being examined by the royal commission should be laid at the feet of his dead and dying former superiors. But what is also emerging is graphic evidence of the dysfunctionality of Catholic governance on this issue.

As my research has shown, Roman Catholic canon law – ironically – has the oldest and most clearly articulated legal provisions for the prosecution of sexual offences against children. Yet the enactment of these provisions is entirely in the diocesan bishop’s hands.

A diocesan bishop has a fundamental conflict of interest in the discipline of clergy in their diocese. He is simultaneously responsible for the pastoral care of the priest and for their punishment. This contravenes a basic principle of natural law – that no-one should be a judge in their own case.

If church authorities had believed the children’s allegations, investigated them and kept records of those investigations, it is possible that offending priests could have been removed and disciplined. Instead, allegations were regarded as implausible, offending priests’ denials were believed, and records were destroyed.

And where allegations were too stark to be denied, the gravity of the offending was denied, and priests were sent for “counselling” and relocated.

It is evident that Archbishop Frank Little and Bishop Ronald Mulkearns neglected their responsibilities and even contravened canon law in their dealings with sexually offending clergy. But Pell’s claims to have fulfilled his moral responsibility in the face of this dysfunction ring hollow.

Pell chose to keep knowledge of his fellow priests’ offending at bay and allowed his superiors’ neglect and malpractice to continue. After the exposure of this legal dysfunction and moral cowardice, we can expect the royal commission’s recommendations will include changes to Roman Catholic governance and canon law.

The Conversation

Timothy W. Jones, Senior Lecturer in History, La Trobe University

This article was originally published on The Conversation. Read the original article.

Commercial current affairs and the case of Cardinal Pell


Brian McNair, Queensland University of Technology

An early finding of the ARC-funded research I and my QUT colleagues are doing on the Australian political media is the gradual withdrawal of free-to-air commercial TV from the current affairs space. If I may paraphrase an old Soviet joke – there’s as much current affairs in A Current Affair as there is truth in Pravda. Which is to say, not very much.

The reasons for this are clear. What we like to call “serious” current affairs – as opposed to the glorified product placement that comprises most of the program of that name on Channel Nine – rarely attracts the audience ratings that game shows, reality TV and other cheap and cheerful formats achieve.

In a hyper-competitive media marketplace, with more platforms and more choice for consumers than ever before, prime-time free-to-air is just too important to the shareholders’ bottom line to be given over to anything that won’t bring eyeballs to the screen.

This is a global trend. All over the world, commercial TV companies that used to make high-quality, high-impact current affairs shows such as the UK’s World In Action have abandoned the territory.

Don’t get me wrong. I love a dose of well-made reality TV as much as the next person, and can even see the point of the Kardashians. And by “quality” current affairs I don’t mean white middle-aged men in suits talking about interest rates – it can be about topics of undoubtedly human interest, dramatic and sensational, but hugely important to people’s everyday lives such as the epidemic of domestic violence, or corruption in FIFA.

Current affairs TV can and should address the personal and the private, the things that matter to us all. And there’s nothing wrong with making that material, along with the big picture issues of economic and politics, accessible to an audience not all of whom have uni degrees.

My point is that even this broad definition of current affairs is increasingly scarce in the free-to-air commercial landscape. We have the ABC, legally mandated to provide such content. And Sky News does an excellent job of providing real time news coverage of public affairs, although its audience is restricted to subscribers of Foxtel. And there are exceptions in the free-to-air space.

Andrew Bolt’s Sunday show on Channel Ten is an increasingly rare free-to-air political debate slot. And as long as you accept its provocatively controversialist style – which helps in the ratings competition, of course – it is very watchable.

And then there is 60 Minutes on Nine, which this week demonstrated what can still be done in the field of current affairs journalism by the commercial broadcasters. In 2002, Cardinal George Pell was interviewed by Richard Carlton on 60 Minutes about payments he had allegedly authorised to victims of paedophile priests, including the nephew of convicted abuser Gerald Ridsdale.

On YouTube, you can watch Pell obfuscate with cringe-inducing obviousness as the journalist pressed him on “the conspiracy of silence”. This was tough adversarial journalism of the very best kind, and very courageous for its time.

The most recent 60 Minutes update interviewed Peter Saunders, a Vatican-appointed commissioner who is investigating child sexual abuse in the Catholic Church. Saunders condemned Cardinal Pell in the harshest terms, to the extent that Pell is reported to be consulting his lawyers. A bevy of Australian archbishops subsequently wrote an open letter defending Pell, so damaging was the item perceived to have been.

Now, like most stories of this kind, there is more than one side to it, and there can be no rush to judgement until Pell has had his say before the Royal Commission. But this item, when taken alongside the statements of abuse survivors who have already testified in Ballarat and elsewhere, and other evidence such as the minutes of a Church meeting where the need to move Ridsdale to another diocese was discussed, has performed a real service to the victims of paedophile priests – a public service.

Commercial television has a long and honourable history of fearless current affairs journalism, in Australia and overseas. 60 Minutes’ work on Pell exemplifies that tradition. Long may it continue.

The Conversation

Brian McNair is Professor of Journalism, Media and Communication at Queensland University of Technology.

This article was originally published on The Conversation.
Read the original article.