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The Money Problem: Reparation and Restorative Justice in the Catholic Church’s Towards Healing Program
Kate Gleeson[*]
Towards Healing is a restorative justice program for addressing complaints of sexual and other child abuse committed by clergy and other members of the Catholic Church. The program is upheld by the Church as leading the world in providing restorative and therapeutic justice. This article examines Towards Healing from the perspective of restorative justice standards and questions the potential for restorative justice to function in regard to Catholic clerical child sexual abuse in Australia, where civil justice is stymied in this context. A key argument of this article is that Towards Healing operates on a less-than-voluntary basis in this environment and fails to maintain the basic principles of restorative justice focused on the needs and experiences of victims. The article concludes that the Catholic Church’s use of reparations to resolve liability in Towards Healing is incompatible with restorative justice ideals and best practice.
Keywords: restorative justice – child sexual abuse – clerical child abuse – reparations – redress – Towards Healing – Ellis – Royal Commission
In August 2014, the Royal Commission into Institutional Responses to Child Sexual Abuse (‘Royal Commission’) released its interim report. The report found that most reported abuse occurred in Catholic institutions and parishes and that, in general, responses to institutional child abuse in Australia have been inadequate and damaging to victims (Royal Commission 2014a).[†] The leading Catholic Church scheme for addressing claims of abuse, Towards Healing, formed a case study of the Royal Commission as commissioners examined claims the scheme fails to deliver justice. Towards Healing is upheld by the Church as leading the world in providing restorative (and therapeutic) justice: a ‘genuine response of caring for victims’ (Parkinson, cited in Family and Community Development Committee 2012:5). The Truth Justice and Healing Council was established to coordinate and oversee the Catholic Church’s response to the Royal Commission. The Council acknowledges some failings of Towards Healing, but generally praises the scheme as ‘a watershed moment’ in the Church’s approach to dealing with child sexual abuse, and for representing a ‘growing if belated determination that the Church should adopt a victim-oriented approach which focused on the needs of victims as more important than protecting the rights of accused clergy or the reputation of the Church’ (Truth Justice and Healing Council 2013:36). In particular, the Church contrasts Towards Healing with past internal approaches relying on canon law, which were not victim focused, but were concerned with the accused (Truth Justice and Healing Council 2013:36).
This article examines Towards Healing from the perspective of restorative justice standards. It questions the potential for restorative justice to function in regard to Catholic clerical child sexual abuse in Australia, where civil justice is stymied in this context. In particular, this article examines the role of reparations in Towards Healing, in accordance with restorative justice theory. It argues that key restorative justice principles of voluntariness and non-denomination are distorted in Towards Healing, as the scheme is used by the Church for the dual purposes of providing restorative justice and resolving liability for past abuses in a legal landscape that provides limited possibilities for victims seeking justice. Key arguments of this article are that Towards Healing operates on a less-than-voluntary basis in this environment and fails to maintain the basic principles of restorative justice focused on the needs and experiences of victims. At the request of the Church, Towards Healing has been reviewed twice by Law Professor Patrick Parkinson, but it has not been systematically evaluated. Data and testimonies reported by the Royal Commission and the Victorian Inquiry into the Handling of Child Abuse by Religious and Other Organisations (‘Victorian Inquiry’) and other sources inform this article, which is structured as follows.
First, this article briefly introduces restorative justice and its basic tenets, before explaining the turn towards mediation and restorative justice by numerous churches since the clerical child sexual abuse scandal broke worldwide in the 1980s. Second, it describes the development and operation of Towards Healing in Australia since 1996, and highlights the experiences of abuse victim John Ellis, which exposed the limitations of both the courts and the Catholic Church in providing justice for victims of Catholic clerical child abuse in Australia. Finally, it examines the role of reparations in Towards Healing and the failings of the scheme, which appears to operate with an outlook to settlement, rather than healing, as its foremost priority. This article concludes that the Church’s use of reparations to resolve liability is incompatible with restorative justice ideals and best practice. If the Catholic Church is to continue offering an ostensibly restorative justice-oriented program for victims of past clerical child sexual abuse, it must adhere to established standards, and distance reparations from liability and the ‘calculating’ approach to compensation of corrective justice (Walker 2006).
Contemporary restorative justice (‘RJ’) programs are said to have commenced in Ontario, Canada, in 1974, and they became subject to academic scrutiny in the 1980s, such as in Zehr’s Changing Lenses (Zehr 1985). Restorative justice may involve: modified versions of civil proceedings; victim-offender mediation; and/or community conferencing, including circle sentencing. Such programs aim to bring together all stakeholders affected by harm in a process distinct from orthodox corrective, or retributive, justice (Stubbs 2004). Braithwaite describes RJ as philosophically and methodologically ‘consequentialist’, in that the method focuses on discussion of the consequences of injustices as a starting point toward ‘healing the hurts of injustice and transforming the conditions that allowed injustice to flourish’ (2002a:564). Braithwaite emphasises its instrumental and symbolic outcomes: reduced recidivism, reintegrative shaming of the offender and, ideally, ‘closure’ for the victim (2002a). Advocates of RJ argue that it differs from both criminal and civil processes because, ideally, explicit in the offender’s decision to participate is a level of accountability and responsibility. Crucially, RJ processes are founded on the principle of voluntariness. In other words, ‘the parties (victim, offender and community) need to decide for themselves to take part in the process, and even if they do agree to participate, they have the right to withdraw at any time’ (Gavrielides and Coker 2005:358). Braithwaite identifies at least 22 standards by which he tries to reconcile the tensions between RJ as a ‘bottom-up social movement’ and its need to exercise ‘power accountability’. The most fundamental of all standards is that RJ must seek to avoid domination (Braithwaite 2002a:565). Therefore, processes should not be grounded in the rulings of lawyers whose ‘eyes are blinkered to the reflective practice of justice by the people’ (2002a:575). Along with maintaining voluntariness, RJ processes must be structured so as to minimise power imbalances, be transparent, and be open to observation and review (2002a:567)
Over the past two decades, RJ has increasingly been promoted as presenting an answer, and ‘in some cases the answer’ to the failings of criminal justice (Stubbs 2004). Braithwaite and Zehr both write of the transformative potential of RJ and its capacity to change the ‘lenses’ through which people and communities view crime (see Gavrielides 2012:605) by treating it principally as a violation of people and interpersonal relationships — a conflict not between the individual and the state, but between individuals themselves. This perspective encourages victims and offenders to view each other with empathy, and to strive for the restoration of human relationships: between the individuals directly affected, and between the individuals and the community (Gavrielides 2012:620).
When studied empirically, RJ programs have mostly been evaluated in regard to perceptions of fair process and recidivism, with varied findings (Hudson 2002). While some advocates suggest it may be a suitable remedy for all categories of offence (with appropriate standards in place: see, for example, Braithwaite 2002a), and some argue for its efficacy in cases of sexual assault (see Daly 2006, 2008), the use of RJ in cases of gender-based harms remains controversial. While RJ approaches in this area have rarely been tested empirically (for an exception, see Daly 2006), some feminist criminologists have identified the potential limitations, or unsuitability, of the process for gender-based harms. A nascent body of scholarship debating the possibilities of RJ has developed in this context, the details of which are beyond the scope of this article (see Strang and Braithwaite 2002; Daly 2006, 2008; Stubbs 2004; Daly and Stubbs 2006; Cossins 2008).
In the face of enduring condemnation for failing victims, representatives of various churches in Australia, the United Kingdom, North America, Europe and New Zealand have commissioned and delivered in-house RJ programs, separate from criminal reporting protocols and the settlement of civil lawsuits. Organisations such as the Minnesota-based Restorative Justice Council on Sexual Misconduct in Faith Communities offer churches programs that try to:
make things as right as possible for the victim/survivor by addressing psychological and spiritual healing, moral accountability, and it recognizes the definitions of sexual misconduct provided by civil, criminal and church law. This form of mediation seeks to assure all affected parties of their future safety and security. It is fast and cost-efficient for the victim/survivor because the mediation fees are usually paid by the diocese or religious community. It provides the opportunity for emotional healing and personal peace for those involved. It is a private, voluntary, informal and party-controlled process where legal representatives or other supporting representatives can be present (Restorative Justice Council 2003–08).
Advocates of church-based RJ note the criticisms of the churches for relying ‘too heavily on lawyers’ in the past, and for adopting legalistic approaches, giving the impression they were more interested in protecting their own interests (and assets) than in assisting victims (Rooney and Ross 2007:17). In Australia, this perception was highly prevalent when then Governor-General Peter Hollingworth identified the ‘advice of Church lawyers’ as a reason for not meeting with victims of abuse when he was Anglican Archbishop of Brisbane (Rooney and Ross 2007:17). Restorative justice is delivered by churches in this context despite a lack of comparative or other substantial research assessing the efficacy or suitability of this mode of mediation for addressing historical child sexual abuse (see Julich 2006; Gavrielides 2012), and despite the added complexity of abuse within institutions. All institutional child abuse suggests at least double liability — of the individual offender/s and of the institution, which, in the case of the Catholic Church, can prove very difficult to legally isolate (Robertson 2010). Hence, important and immediate considerations concern the liability of groups and institutions and how RJ, which was initially theorised and deployed between individuals to address individual offences, could function in this context. As well, the hierarchical, patriarchal culture of the Catholic Church in particular has been shown to facilitate and perpetuate abuse, and obstruct justice, in unique ways (Keenan 2012). Nonetheless, advocates of church-based RJ programs answer concerns about their suitability by pointing to the work of Braithwaite promoting RJ in the context of organised crime and criminal gangs
(2002b:94–5), and in relation to national reconciliation in the case of Northern Ireland (Braithwaite 2002a), South Africa and elsewhere (see Daly and Proietti-Scifoni 2011).
Three decades of public shaming of churches for their failure of victims and their complicity in child sexual abuse is said to have ‘opened the door’ for RJ, as reintegrative shaming forms a key component of its philosophy and technique (Gavrielides and Coker 2005:347). But the connections of RJ with exhausted, and exhausting, criminal and civil proceedings must also be appreciated in the churches’ turns towards mediation. Following a series of high-profile criminal convictions commencing with Father Gilbert Gauthe’s sentencing to 20 years in 1985, civil suits against the Catholic Church became commonplace in the United States (‘US’). The family of one of Gauthe’s victims pursued a civil case to a jury verdict and was awarded US$1.25 million in 1986 (Jenkins 2001:36). By the end of the decade, the crimes of Gauthe are estimated to have cost the Diocese of Savannah US$20 million (Jenkins 2001:36), with national (and international) ramifications. The Gauthe trials established that the failure of church authorities to intervene in abuse should result in vicarious liability, including financial penalties, compensation and payment for the treatment of victims in the US (Jenkins 2001:36). Current estimates of the Catholic Church’s total settlements in the US range between US$2–3 billion (Neu 2010:1508).[‡] Numerous American dioceses have filed for bankruptcy protections (Noll and Harvey 2008:383).
In the wake of the American ‘litigation explosion’ (Jenkins 2001), Church representatives seized on victims’ stated dissatisfaction with settlements as indicating a failure of civil proceedings to fill their ‘emotional and spiritual void’ (Noll and Harvey 2008:383), and as justification for in-house RJ programs based on a purported dichotomy of civil (bad) and restorative (good) justice. Church-based RJ advocates claim that the pursuit of damages in the US has exacerbated wounds and provided minimal opportunities for them to reconcile with religious communities (Gavrielides and Coker 2005:346). Because of their adversarial nature, civil processes are said to re-injure and traumatise victims, offenders, parishes, the church, and the community, while failing to provide a personal sense of justice (Noll and Harvey 2008:378). In contrast, RJ offers processes that are ‘respectful, non-adversarial, creative and most important, fair to all’ (Noll and Harvey 2008:378). This dichotomy not only promotes church-controlled RJ programs, but works to preclude civil trials and associated damages. Hence, RJ and the civil law should not be understood as separate responses to clergy sex abuse. Rather, the Church’s control of settlements is intrinsically related to its advocacy of RJ programs, although this scenario unfolded differently in the US and Australia.
In 1988, the Australian Catholic Bishops’ Conference established the Special Issues Committee to develop internal protocols to respond to allegations of sexual abuse. The Australian clerical sex abuse scandal then broke publicly in the early 1990s, around seven years after Gauthe’s conviction, at a time when members of the Vatican viewed anyone making allegations against a priest as ‘an enemy of the Church’ (Pell in Royal Commission 2014b). In 1994, the Australian Catholic Bishops’ Conference joined with Catholic Religious Australia to form the National Committee for Professional Standards, which developed a public nine-point plan for responding to child sexual abuse, and established a Professional Standards Office in each Australian state to manage complaints and liaise with police (Rooney 2013:116). Towards Healing: Principles and Procedures in Responding to Complaints of Sexual Abuse against Personnel of the Catholic Church in Australia was approved in November 1996 and came into operation on 31 March 1997. The scheme primarily addresses cases of historic physical, emotional and sexual abuse towards a child or young person by clergy, religious and other Catholic Church personnel in positions of pastoral care. It is described as providing an option for victims, possibly complementing criminal processes, and as ‘more victim-orientated’ than the Church’s national protocols of 1988 (Truth Justice and Healing Council 2013:14), which were designed to ‘prevent or remedy a scandal’ (Coote in Family and Community Development Committee 2013a:11). The primary driver of Towards Healing was the Auxiliary Bishop of Sydney, Geoffrey Robinson, a victim of child sexual abuse himself, described as ‘absolutely committed to cutting out the cancer [of child sexual abuse] in the Church’ (Parkinson in Family and Community Development Committee 2012:5). Robinson was appointed in 1994 to lead the Church’s response to sexual abuse claims and claimed to have been ‘sick to the stomach’ at the stories victims told him (Robinson 2007:7). In 1996, after making public statements about his dissatisfaction with the level of support he was receiving from the Vatican, Robinson was rebuked by the Vatican and suspected of ‘some form of heresy’ (2007:21). In 2004, Robinson retired from his role as Auxiliary Bishop and has since petitioned Pope Francis to take action on child sexual abuse and ‘not only sweep the Church clean but to put His/God’s house in order for all time’ (change.org 2014).
Towards Healing it is the most significant scheme of its kind in Australia (and the most comprehensive internationally). Despite the atomised corporation structure of the Church, whereby each diocese and religious institute operates autonomously, the scheme has ‘overcome significant hurdles’ to operate nationally, except for the Archdiocese of Melbourne, as explained below (Truth Justice and Healing Council 2013:35). Following Parkinson’s recommendations, the protocols were reformed in 2000 to appear to be more compatible with RJ processes, including a focus on the harms, needs and healing of victims, and providing a ‘flexible response to crime, that considers each case individually’ (Truth Justice and Healing Council 2013:14). The stated aims of the scheme are to give effect to the Church’s commitment to seven principles in responding to complaints of abuse: truth; humility; healing for the victims; assistance to other persons affected; a just response to those who are accused; an effective response to those who are guilty of abuse; and the prevention of abuse (Truth Justice and Healing Council 2013:14).
Towards Healing operates as a facilitative mediation between a complainant and a senior Church official in which the complainant can tell his or her story to have it acknowledged, to receive an apology and to receive assistance in ‘helping them move forward with their lives’ (Rooney 2013:3). The scheme operates at the discretion of the Director of Professional Standards. Once a complainant comes forward with allegations, the director appoints an assessor to investigate the claims according to the civil standard of proof. If the assessor substantiates the complaint, a mediator is appointed to facilitate a meeting between the complainant and a representative of the Church, although not the alleged perpetrator (Rooney and Ross 2007). Some complainants bring legal representatives to mediation (Rooney 2013:7). If all parties agree, joint sessions commence with a mediator’s opening statement, followed by the victim’s story, followed by the response of the Church authority or delegate, from perspectives such as the personal and the pastoral (not the liturgical or theological) (Halsmith 2002:2).
Towards Healing may provide financial support to complainants, but there is no independent panel to allocate or standardise payments. Instead, individual dioceses make individual payments in individual cases, known as ‘reparations’, only some of which are insured by Catholic Church Insurance (‘CCI’) (Parkinson 2009:10). The acceptance of a claim has no bearing on the Church’s civil defence status, and complainants receiving reparations are typically required to sign a deed of release indicating they will not pursue damages (Australian Lawyers Alliance 2013). This approach is justified in the language and philosophy of RJ that:
Towards Healing therefore offers another kind of response. It is a pastoral response which does not depend on proving that the Church is legally liable. It is a response to the needs of victims of abuse, rather than a response driven by settling legal claims. It aims to promote healing, and one of its central features is the meeting between the Bishop or leader of the religious order and the complainant. In this meeting, the complainant’s suffering can be acknowledged, truth can be told, apologies offered and a response given to the needs of the complainant (Parkinson 2009:8).
Towards Healing is contrasted with The Melbourne Response, launched in October 1996 by Cardinal George Pell, then Archbishop of Melbourne, for complaints made in that diocese. The Melbourne Response was the first mechanism for investigating abuse complaints and offering counselling and compensation established by a diocese anywhere in the world (Tobin 2014). At the Royal Commission it was suggested to Pell that he initiated The Melbourne Response just months before Towards Healing commenced so that he could claim to have delivered the first such scheme internationally (Royal Commission 2014b). But the schemes differ substantially, especially their assessment processes. Under The Melbourne Response, a commissioner (a Queen’s Counsel) assesses complaints, and compensation, now capped at A$75 000, is determined by a separate compensation panel. Restorative justice advocates describe The Melbourne Approach as exemplifying ‘inadequate institutional responses’ to clergy sex abuse, when they promote the dichotomy of RJ processes such as Towards Healing as pastoral rather than legalistic (Condliffe 2009). Geoffrey Robinson described The Melbourne Response as ‘not victim friendly’ (ABC Radio 2012). Another bishop who participated in both schemes described The Melbourne Response as personally ‘much easier’ to participate in than Towards Healing (Rooney 2013:9), due to the emotional demands of the latter.
The Melbourne Response has a substantiation rate for complainants of 97 per cent; Towards Healing has a rate of 76 per cent (Crozier in Family and Community Development Committee 2013a:2). In 2009, the Archbishop of Melbourne (Archbishop Hart) again refused to integrate the diocese into Towards Healing (Parkinson 2009).
In testimony to the Royal Commission, Pell acknowledged that the Church’s treatment of compensation relates to fears of bankruptcy, such as in the US where there are ‘an enormous number of lawyers’ (Pell, cited in Tanquintic-Misa 2014). However, such fears are unrealistic in Australia, where Catholic dioceses are in a significantly different position to those in the US, due, in part, to the Australian courts’ treatments of vicarious liability (Sappideen and Vines 2011:457–9). In his first review of Towards Healing (2000), Parkinson advised the Church that:
in most situations, the Church authority will not be legally liable for various reasons, such as the complex organisational structure of the Church which may make it difficult to find a defendant who is responsible for the liabilities of previous office-holders; or because the Church authority was unaware of the offender’s propensity to offend (Parkinson 2000:13).
In his second review (2009), Parkinson drew attention to Limitation Acts of various states that prevent many claims being made by adult survivors of child abuse (Parkinson 2009:8). Any fears of bankruptcy ought to have been conclusively assuaged when Parkinson’s advice was essentially confirmed by the New South Wales (‘NSW’) Supreme Court in the 2007 case of Trustees v Ellis. In 2002, John Ellis approached the Catholic Church claiming to have been repeatedly abused as a child by his parish priest at Bass Hill, Father Aiden Duggan, from 1974 to 1979. One year later, the Director of Professional Standards in NSW appointed a Towards Healing assessor to the case, who accepted the claim in full, including that the abuse had led to Ellis’s marital breakdown and loss of employment. Ellis was offered A$30 000 on the basis of confidentiality and a waiver of liability in favour of the Church and Pell, whose predecessor had appointed Duggan. Ellis did not accept the offer (Australian Lawyers Alliance 2013).
In 2004, after Duggan died leaving no assets, and having experienced profound dissatisfaction with Toward Healing, Ellis brought a common law claim suing both the Trustees of the Roman Catholic Church and Pell for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney. The Trustees were appointed under the Roman Catholic Church Property Trust Act 1936 (NSW) as guardians of property estimated to be currently worth billions of dollars. Ellis sued the Trust rather than the Church presumably because the Church is an unincorporated association, according to Pell, ‘not like a corporation with one basic structure for all its activities’ (Pell 2011). Ellis submitted that both defendants were liable directly or in a representative capacity (representing the unincorporated association known as the Catholic Archdiocese of Sydney) for the wrongdoing of Duggan. On appeal, the NSW Supreme Court upheld both the Trust’s and Pell’s claims of immunity, ruling that the Trust was not liable for the behaviour of clergy; nor was Pell liable for the Sydney Diocese at the time of Ellis’s abuse, as he had ‘no relevant connection with the Sydney Archdiocese’ prior to 2001. Moreover, the Court affirmed that an unincorporated association (such as the Catholic Church in Australia) cannot (at common law) sue or be sued in its own name because, among other things, ‘it does not exist as a juridical entity’ (Trustees of the Roman Catholic Church v Ellis:47). Ellis was ordered to pay costs, and declined leave to appeal to the High Court of Australia in 2007. Ellis was pursued for three years for A$750 000 before the Church waived costs (Ellis and Ellis 2014:35).
Ellis was left with no legal remedy, and victims and the Church both now refer to the case simply as ‘the Ellis defence’ in Australia. The case is stated to have cost the Church A$1.5 million, including A$568 000 in ex gratia payments (Australian Lawyers Alliance 2013). But critics of the Church’s vigorous defence of the suit, including interrogating Ellis’s evidence that had been accepted in Towards Healing, note that ‘the use of the Ellis defence has been an extremely successful legal strategy for the Church’ (Shoebridge 2014), especially when compared internationally. The ruling suggests that the status of the Catholic Church in Australia, as an unincorporated entity immune from suit, may be unique in the common law world (Australian Lawyers Alliance 2013:4). In the US and Canada, individual dioceses of the Roman Catholic Church have been treated as a corporation sole: a legal entity able to be sued as liable for the abusive conduct of priests (Australian Lawyers Alliance 2013; John Doe v Bennett). In England, Church Trustees have been held liable for the Church, and dioceses have been held liable, directly and vicariously, for the criminal conduct of priests (Australian Lawyers Alliance 2013; JGE v The Trustees of the Portsmouth Roman Catholic Church Diocesan Trust; Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church).
One claim made about Towards Healing is that, in accord with RJ ideals and best practice, the scheme is ‘safeguarded’ by being ‘purely voluntary’ for victims, as it ‘can be terminated by the complainant at any time’ (Rooney and Ross 2007). But this voluntariness is distorted in the Australian legal terrain in which victims of Catholic Church-related sexual abuse (perpetrated outside the Archdiocese of Melbourne) effectively have two options for seeking compensation paid by the Church. They may attempt to negotiate settlements out of court, or they may participate in a process of facilitative mediation, even if RJ and mediation of their sexual abuse is not appropriate to or desirable for them. Towards Healing and The Melbourne Response operate beyond the shadow of the civil law in Australia, with implications not only for financial outcomes, but also for the integrity of the RJ process, which is intended to uphold the principle of voluntariness.
Data summonsed by the Royal Commission indicate that, between 1 January 1996 and 30 September 2013, 2215 complaints were received under Towards Healing and 1700 individuals agreed to participate in the scheme (although not all of their claims were pursued or substantiated). Seventy-six per cent of all complaints related to alleged incidents of child sexual abuse occurring between 1950 and 1980. More than 60 per cent of all complaints involved a school/college or orphanage. Of the data available, which are known to be incomplete, a total of A$43 million has been paid in reparations by Church authorities. The highest reported amount was approximately A$850 000 including legal, counselling and other costs paid by the Archdiocese of Sydney (Royal Commission 2013), although the Australian Lawyers Alliance reports that, in that diocese, most payments are ‘well below’ A$50 000 (2013:11). The staunchest criticisms of Towards Healing concern its handling of reparations, especially the involvement of CCI, and the explicit connections to liability evident in deeds of release and confidentiality requirements (Parkinson 2009). While Parkinson supports the ‘individualistic’ approach to reparations as reflecting a pastoral (as opposed to legalistic) approach, research conducted with Towards Healing complainants describes the scheme as operating very ‘legalistically’, except for the lack of avenues of appeal, the unfortunate inconsistency in payments, and the absolute discretion bestowed to bishops, whereby ‘there is no consistency and there are no guidelines. Discrepancies are the norm’ (Courtin 2013:11).
The dichotomy of pastoral (good) RJ versus legalistic (bad) civil remedies is essential to the promotion of Towards Healing and the Church’s continued control of settlements. In advice to the Church, Parkinson used the example of difficulties for victims litigating in Australia in support of his counsel that it is in the interests of the Church and ‘most complainants’ to try to resolve complaints without ‘being locked in an adversarial process’ (Parkinson nd:4, emphasis added). Another advocate, Towards Healing mediator Greg Rooney, emphasises what he claims are the better financial outcomes of the scheme for victims, compared to out-of-court settlements, in addition to ‘all the benefits associated with receiving a personal apology’ (Rooney 2013:122). This is despite publicly known details of some settlements, such as that made with the Forster family, of A$750 000 plus costs: an amount the family believes is not just, but which ‘gives a sense of what the church is willing to pay in order to keep people silent and to ensure that the ... case doesn’t become public’ (ABC TV 2014). The Truth Justice and Healing Council instead promotes the argument that it is ‘well-accepted’ that litigious processes are ‘problematic’ for responding to child sexual abuse, relative to ‘the variety of pastoral responses’ offered by RJ (2013:15). In particular (and ironically, given Towards Healing’s function of making payments to victims), the Church identifies the centrality of money at the conclusion of civil suits as ‘usually a bitter pill to swallow for survivors’ (Truth Justice and Healing Council 2013:16). But it is the Church itself that has contributed to such negative outcomes in its corporation structure; in its vigorous defence of liability; and in its management of the financial component of its ostensibly RJ-oriented program in which reparations are intended to resolve liability ‘from a legal point of view’ (Parkinson 2009:10). As Parkinson explained:
The provision of reparation, where there has been a criminal offence or civil wrong, is also intended to resolve, from a legal point of view, any issues of liability for the Church authority. While the payment of a sum by way of reparation is not dependent on the establishment of the Church’s civil liability, it is nonetheless appropriate that any potential legal claims are settled in the process of reaching a resolution. For this reason, the pastoral approach is not, and cannot be, entirely separated from the issue of potential civil claims. Such potential claims are also an issue for any insurer involved in meeting the costs of reparation (2009:10).
The first (1996) iteration of the Towards Healing protocols indicated, indirectly, that financial payments may be offered to ‘assist’ victims and their families (Australian Catholic Bishops Conference 1996:4). Parkinson recommended this be made more explicit ‘to avoid confusion’ and that the term ‘reparation’ be used, rather than ‘compensation’, to distinguish ex gratia payments from compensatory damages (2000:14). He advised that ‘compensation’ suggests that the Church is ‘in some way responsible for the wrongdoing committed by Church personnel and for the harm that the wrongdoing has caused’ (Parkinson 2000:7). The current iteration of the protocols (2010) states that the Church may pay for or provide counselling to victims, and ‘financial assistance or reparation may also be paid to victims of a criminal offence or civil wrong, even though the Church is not legally liable’ (Australian Catholic Bishops Conference 2010:24, emphasis added). The use of the word ‘reparation’ signals an attempt to invoke RJ ideals and to distance Towards Healing from damages; payments are portrayed as ‘a means of recognising the harm suffered by a criminal offence or civil wrong, and as a tangible expression of the Church Authority’s regret that such abuse occurred’ (Parkinson 2009:9). While ‘compensation’ generally suggests a civil purpose of calculating damages paid to victims, reparation (a concept derived from international law), should generally connote ‘a wider set of aims’ (Zedner, cited in Daly and Proietti-Scifoni 2011:7). Payments as restitution have long been recognised as a component of RJ as a way of holding offenders accountable and compensating victims for their losses, particularly in response to property crimes (Bazemore and Umbreit 1995). But reparation has a different meaning in RJ literature. Although, as Daly and Proietti-Scifoni (2011) document, there are wild divergences in terminology in RJ scholarship, Braithwaite distinguishes between restitution (possible in cases of theft or property damage), compensation of comparable value when restitution is not possible, and reparation for when compensation is not possible, such as in the case of murder, paid to families ‘to make up for the damage, the fatal damage, to the victim itself’ (Pettit and Braithwaite 1993:234).
The use of ‘reparations’ in Towards Healing to describe payments functions perversely to resolve liability, rather than to compensate for acknowledged harm, while invoking RJ ideals to set the program apart from the civil law as providing better outcomes for victims and, indeed, the community. This dual purpose of providing ‘pastoral care’ and resolving liability has provided for deeply unsettling experiences for victims who seek restoration and justice ‘in the shadow’ not of the law, but of financial remedies (Rooney and Ross 2007) — a situation that mirrors the claim of the Church that damages are a ‘bitter pill’ for victims. Many Towards Healing complainants are ‘embarrassed and guilty about asking for money’ and angry about being put in a position of having to ask for financial assistance (Rooney and Ross 2007). Some experience reparations as ‘like being paid for sex’ (Rooney 2013:8). In contrast, Towards Healing mediators claim that to provide pastoral care, apology and reparation in the one meeting is a ‘holistic’ response (Rooney 2013:5) and that to separate these elements would ‘fracture the process and undo much if not all of the power and value of the apology’ (Rooney and Ross 2007:15). Parkinson considered these issues in both of his reviews of the scheme, but dismissed the proposition of a standardised compensation process, separate from the RJ function of Towards Healing, by deferring to the different financial positions of dioceses and the interests of CCI (Parkinson 2009:11–12).
Complainants who have participated in Towards Healing describe their interests in terms of RJ ideals: a desire for ‘recognition of their story, being believed, completing their identity, obtaining personal information about their families, achieving peace, ending torment, putting the matter to rest, protecting their health, receiving a personal apology, accepting financial assistance’ (Halsmith 2002:3). Church-appointed mediators commend the scheme as possessing ‘transformative intent and potential’, and as a process of ‘relationship formation based on trust’ (which they say is ‘essential’ in cases of past sexual abuse), especially when compared to civil proceedings (Halsmith 2002:2–3). Parkinson cited one individual who expressed profound appreciation for Towards Healing (Parkinson 2009:2) and other research notes the positive aspects of the opportunity for victims to tell their stories, and the payment of counselling fees (Rooney 2013; Courtin 2013:67). But significant testimony and research has emerged suggesting the failings of the scheme based on its inability to uphold RJ principles, especially non-denomination, and thereby perform the healing to which the Church claims to aspire. Rather than shield victims from adversarial justice, Towards Healing appears to have incorporated its most base characteristics, as it operates essentially from an ‘outcome driven approach’ whereby participants report feeling ‘pressure to settle’ so that the matter may be closed (Courtin 2013:36). This raises the question of whether RJ can perform its healing functions at all in this context.
Testimony to the Victorian Inquiry reveals that complainants have experienced the apology in Towards Healing as a ‘betrayal’, with its healing function corrupted by the refusal of the Church to acknowledge liability (Coote in Family and Community Development Committee 2013a:11). The Royal Commission also highlights the ‘complex issues’ in the relationship between the scheme and reparations, and the limitations of RJ associated with financial reparation and institutional child sexual abuse, particularly in Australia, where civil remedies are hamstrung. One complainant experienced Towards Healing as ‘little more than negotiations between his lawyers and CCI about money’ (Royal Commission 2015:98). In response to another complainant, ‘the Archdiocese essentially moved into a defensive litigation stance there followed a drawn-out two year period before the matter was resolved’ (Royal Commission 2015:32–3). Other examples indicate that deeds of release requiring confidentiality of complainants were mandated contrary to therapeutic advice about the need for victims to be able to disclose their past, as an ‘essential part of the healing process’. One complainant experienced such requirements as ‘silencing’, which held ‘the same power and control over me that was used by [the perpetrator] when he abused me’ (Royal Commission 2015:40).[§] Another stated, ‘I found the whole thing pretty disgusting and I could never work out where the healing part came into it, because I certainly didn’t feel healed by that process’ (Royal Commission 2015:98).
One of the most significant claims made by Church-based RJ advocates is its capacity for spiritual healing and restoration, a unique quality absent from civil and criminal justice. However, Ellis’s testimony to the Royal Commission suggests that it was the failure of Towards Healing in this regard that was most distressing to him. Ellis, who claimed his spiritual life was ‘totally trashed’ by his abuse and that ‘this was one of the most important things that [he] wanted the Church to help in’, was told that he would be appointed a Spiritual Director only once he signed a deed of release. The appointment was never made, leading his counsel to argue in the Royal Commission that there were ‘very present tensions’ between pastoral aims and the desire for the Church to protect both its reputation and ‘how much money it would pay and various other things’ (Gerace in Royal Commission 2014b:5667).
Evidence of Ellis and others suggests that the operation and delivery of Towards Healing has exhibited the characteristics of civil law most criticised by church-based RJ advocates: the capacity to reinjure and traumatise victims while providing no sense of justice. This is undoubtedly connected to its foundational aim to control financial settlements, or reparations, as they are described in the protocols. However the non-‘legalistic’ elements of the scheme are also alarming, in that the accentuated power imbalance between the complainant and the Church representative, lack of transparency, and lack of accountability would appear to have led to the significant re-traumatisation of many victims (Ellis and Ellis 2014). Numerous submissions made to the Royal Commission about the scheme highlight the fundamental feminist concern about RJ in the context of sexual abuse and other gender-based harms: that the abusive power relationship will be sustained in mediation. The significance of this critique appears not always to be appreciated by legal experts. For example, while Parkinson acknowledges the Royal Commission has documented some ‘appalling failures of implementation’ of Towards Healing, he appears to interpret these failings in terms of magnitude of payments (which were ‘never intended to gain the kinds of settlements that might be awarded if the plaintiff were successful in a law suit’), rather than a distortion or abuse of RJ ideals and practices (Parkinson 2014:131).
It is a basic maxim of law that harms should be remedied (Roht-Arriaza, cited in Walker 2006:377). The Catholic Church in Australia has publicly acknowledged that existing compensatory measures for Church-based child sexual abuse are inadequate and damaging to victims (Truth Justice and Healing Council 2014) and that victims ‘should be able to sue the Church’ (Pell, cited in Armitage 2014). While church-based RJ schemes have been promoted by arguing that civil justice is inappropriate for remedying historical child sexual abuse, both the Victorian Inquiry and numerous submissions to the Royal Commission made recommendations to enhance access to justice by this means. The Victorian Inquiry noted that ‘victims of criminal child abuse have a fundamental right to sue non-government organisations for damage they have suffered’, and ‘court judgements provide a valuable and practically available form of public condemnation for criminal child abuse, and create a powerful incentive for organisations to change their practices to prevent child abuse’ (Family and Community Development Committee 2013b:519). The Victorian Inquiry recommended that non-governmental organisations receiving government tax emptions or other entitlements should be required to be incorporated and adequately insured. Recommendations concerning the reform of civil justice are welcomed. However, there has been little critical engagement with problems of justice for Catholic clerical child sexual abuse from the perspective of restorative justice standards such as non-denomination and voluntariness. Towards Healing has far to go to transcend domination of victims and the ‘blinkered’ eyes (Braithwaite 2002a:575) of Church legal and financial advisers and, in particular, to reconcile the role of reparations in restorative processes. Part of the mandate of the Royal Commission is to make recommendations about appropriate redress for institutional abuses. Lessons learned from Towards Healing and RJ scholarship should be considered wisely in this context.
Discussing reparations, Walker distinguishes between orthodox ‘corrective justice’ (in which compensation to make good a victim’s loss is central, conceptualised in terms of a ‘metric of loss’) and restorative justice, which also emphasises material and practical amends that address victims’ losses and needs (2006:384). But, ideally, reparations in a restorative framework should also play instrumental and symbolic roles in repairing relationships, including by ‘adding weight’ to gestures such as apology (Walker 2006:385). Approaches to justice for historical clerical child sexual abuse may have the most to learn from restorative treatments of historical injustice, such as mass political violence. Increasingly, discussions of reparations reject corrective justice focused on metrics of loss as the appropriate primary category for reparations involving groups or large numbers of individual victims of injustice. Instead, it is argued that reparations should emerge in a restorative context from a practice of communication centred on the needs and understanding of the victims as well as ‘wrongdoers’ deepened understanding of the nature and meaning of the victims’ loss and of the nature and extent of their own responsibility’ (Walker 2006:385). Walker cautions that reparations must be politically feasible, but ‘neither can they appear as cheap buyouts or fail to address victims directly and to validate their experience of suffering and specific experience of injustice, lest they add further insult to moral and material injury’ (2006:380).
Any continued attempts at RJ in the context of historical clerical child sexual abuse should aim to abide by established standards and consider the role of reparations foremost in the context of RJ aims and ideals, which operate according to an ethos fundamentally different to corrective justice. However, so long as capacities for civil justice remain stymied in Australia, the ‘voluntariness’ of any compensatory or restorative program will be corrupted and undermined.
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[*] Senior Lecturer in Law, Macquarie Law School, Building W3A, Macquarie University NSW 2109 Australia. Email: kate.gleeson@mq.edu.au. Thanks to Andrew Scully for research assistance, and to the anonymous reviewers of this article for helpful advice.
[†] I acknowledge the preferred term ‘survivor’ rather than ‘victim’ for complainants in the context of sexual abuse. However, throughout this article I use the term ‘victim’ to maintain consistency with generalist restorative justice scholarship.
[‡] As of March 2015, the survivors’ website published details of more than US$3 billion paid in settlements to 5679 complainants in the US: see Sexual Abuse by US Catholic Clergy, BishopAccountability.org <http://www.bishop-accountability.org/settlements/> .
[§] The Church now claims that confidentiality requirements are no longer imposed (Ryan in Family and Community Development Committee 2013a:23).
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