Is buying a lost child an ice-cream child abuse? Have we gone too far in labelling mere actions as child abuse?

Part 3

Did Elijah abuse the widow’s dead son? Did Jesus abuse the ‘little children’? Did you abuse Mark?

 By Louise Greentree[1]

In Part 1 I looked at the scenario of someone like you hugging and comforting a lost child in a shopping centre, buying her an ice cream and taking her away from where you found her to the Management Offices so that an announcement can be broadcast to the parents to let them know that their child had been found and is well and safe. I pointed out that those very actions, if intention and consequences are ignored, could in themselves be labelled grooming and child abuse. However your intention (to return the child to its parents) and the consequences (mission accomplished) made all the difference to how we could view actions that in themselves are innocent but which have been performed by paedophiles to lure a child away to be abducted and abused.

In Part 2 I asked the question: ‘Did Professor Albus Dumbledore abuse Harry Potter?’ I love the world of Harry Potter so skilfully imagined by J. K. Rowling in her entertaining books. In each book (and film), and more so in the later books, a relationship develops between Professor Albus Dumbledore, Headmaster of Hogwarts School of Witchcraft and Wizardry and Harry Potter, a relationship of deep attachment and mentoring beyond the normal between headmaster and pupil. Struck by some parallels between this relationship and that in Mark’s case study which I discuss in this, Part 3, I looked at the application of the Codes of Practice and Ordinances of Sydney diocese of the Anglican Church to the 5 year period of that relationship, somewhat arbitrarily deemed to have taken place between 1997 and 2004.

In this Part I look at other notable instances of interaction with children which would in these suspicious days, raise questions of child abuse: the cases of Elijah and Jesus. Then I look at the case of Mark, your assistant in working with young people and ask: did you abuse Mark? In conclusion to the 3-part series I pose some questions which, in the light of the revelations from the evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse, includes these: “are those responsible for child protection now focusing on the over-zealous prosecution of false claims to divert public attention from dereliction of duty by some apparently ‘right-thinking members of the church’ (including bishops and archbishops) resulting in real abuse of real victims, firstly, by Anglican church workers and secondly, by the church’s refusal to deal appropriately with them?”

In the light of the abandonment of proper ethical and legal process in past cases as well as a current case in the Sydney diocese professional standards system, I pose another question: “is any innocent person safe from false claims?”

Consider this: did Elijah abuse the widow’s son in Zeraphath?

This ‘scenario’ is taken from the Holy Bible in 1 Kings Chapter 17 and the translation is the New International Version.

There was a great famine in the land. The great Old Testament prophet Elijah was told by God: “Go at once to Zarephath in the region of Sidon and stay there. I have directed a widow there to supply you with food.” ¹⁰ When he arrived he met the widow gathering sticks and asked her for some water and a piece of bread.

¹² “As surely as the Lord your God lives,” she replied, “I don’t have any bread—only a handful of flour in a jar and a little olive oil in a jug. I am gathering a few sticks to take home and make a meal for myself and my son, that we may eat it—and die.”

¹³ Elijah said to her, “Don’t be afraid. Go home and do as you have said. But first make a small loaf of bread for me from what you have and bring it to me, and then make something for yourself and your son. ¹⁴ For this is what the Lord, the God of Israel, says: ‘The jar of flour will not be used up and the jug of oil will not run dry until the day the Lord sends rain on the land.’”

¹⁵ She went away and did as Elijah had told her. So there was food every day for Elijah and for the woman and her family. ¹⁶ For the jar of flour was not used up and the jug of oil did not run dry, in keeping with the word of the Lord spoken by Elijah.

This is what happened next:

¹⁷ Some time later the son of the woman who owned the house became ill. He grew worse and worse, and finally stopped breathing. ¹⁸ She said to Elijah, “What do you have against me, man of God? Did you come to remind me of my sin and kill my son?”

¹⁹ “Give me your son,” Elijah replied. He took him from her arms, carried him to the upper room where he was staying, and laid him on his bed. ²⁰ Then he cried out to the Lord, “Lord my God, have you brought tragedy even on this widow I am staying with, by causing her son to die?” ²¹ Then he stretched himself out on the boy three times and cried out to the Lord, “Lord my God, let this boy’s life return to him!”

²² The Lord heard Elijah’s cry, and the boy’s life returned to him, and he lived. ²³ Elijah picked up the child and carried him down from the room into the house. He gave him to his mother and said, “Look, your son is alive!”

What are we, representing ‘right-thinking members of the church[2]’ to make of this?  Is this conduct that is disgraceful and which if known publicly would cause a scandal or evil report[3]?

Well, there are all sorts of things wrong with this scenario. Firstly, Elijah removed the child from his mother and took him away to be alone with him. This is undesirable behaviour according to the guidelines for church workers contained in the Code of Conduct for clergy 1998 Sydney diocese of the Anglican Church and the later Code of Conduct Faithfulness in Service. Secondly, there is no witness to what actually went on in that room between Elijah and the dead boy (who obviously could not verify the account). The account can only have come from Elijah himself and may not be truthful. (I am a bit fearful of making this preposterous and heretical suggestion – but it is only for the purposes of the scenario). Thirdly, even according to his account he has behaved with gross impropriety, even disgracefully, lying down on the boy’s body three times. Could it be decided that there was sufficient doubt about the veracity of the account to ignore Elijah’s excuse for the admitted impropriety: that he was calling on God to return the boy to life? Surely he could have stayed downstairs in the presence of the boy’s mother to do this? And without touching the boy’s body?

Well: who are we to tell God how and when He will respond to prayer? This illustrates that human ‘wisdom’ about many things including what is or is not ‘disgraceful conduct’ (see footnotes 2 and 3 below) is flawed and can be distorted by such things as sanctimoniousness, self-righteousness and judgmentalism.[4]

For my next scenario I propose something with even greater trepidation:

Now consider this: did Jesus abuse the children?

This ‘scenario’ is taken from the Holy Bible in the New Testament book of Matthew chapter 19 and the translation is the New International Version.

¹³ Then people brought little children to Jesus for him to place his hands on them and pray for them. But the disciples rebuked them.¹⁴ Jesus said, “Let the little children come to me, and do not hinder them, for the kingdom of heaven belongs to such as these.” ¹⁵ When he had placed his hands on them, he went on from there.

Well, we have a scenario here which might be interpreted to offend our guidelines and the Church Discipline Ordinances of 1996 and 2002, and the Discipline Ordinance of 2006 as well as the Codes of Conduct: is it possible that ‘the people’ who brought the children to Jesus’ were misguided, and in any event He did place His hands on them, which is against the guidelines, and may indeed have failed to respect the child’s feelings and privacy.[5]

Now of course this is even more preposterous: the man without sin, the Messiah, Jesus Christ being accused of such a thing. It is profanity.[6]

But both these scenarios demonstrate these things:

1. In both there is a lack of demonstrated intention to abuse; on the contrary there is  an intention to do absolute good, raising from the dead in Elijah’s case, and in Jesus’ case, giving a blessing directly from the hands of God – what  an amazing thought.

2. In both, the known good character of the ‘accused’ makes the accusation even more preposterous, especially where there is a lack of evidence of evil intention and no evidence of actual abuse or harm, in fact quite the reverse – evidence of positive good. Of course, Elijah, the man of God, and Jesus, the Son of God are both vouched for by God. Who are we to go past that? But even in the case of an ordinary human being with all the usual weaknesses and failings, the good character of the person is an important part of the assessment of whether it is at all likely, in the absence of evidence of evil intention and no evidence of actual abuse or harm, that the guidelines have been breached.

Let me show you how this works with ordinary human beings.

Now consider this scenario: (no trepidation here)

You are employed to work with young people. In 2002 you need an assistant and you offer Mark, 15 going on 16 some part-time paid work[7]. He accepts and he continues to work as your assistant for 7 years until 2008, by which time he has completed tertiary training in this field and he is aged 22. You think he has real potential for a career in this area so you mentor him and you devote more of your time to demonstrating how the programs are designed and implemented than you would have to do for another assistant already trained in this area, and also for his benefit, laying the foundation of experience for his tertiary training.

Because certain personal qualities are required by the job you carefully mentor him so that he acquires these qualities and so that he is not side-tracked by the usual teenage issues including those surrounding sexuality. You engage him in a program of overcoming specific issues, which he tells you at the time he has succeeded in doing.

He even spends his school work experience week with you. The year after he left the organisation for a full-time position in a similar organisation he asks you to his wedding.

So far, so good.

Imagine, if you can, the horror when, in 2012, he accuses you of grooming and child sex abuse. He complains to the professional standards office of your employer organisation and he tells you (in a text message that comes out of the blue) that he is going to make sure that you never work with young people ever again.

But when you try to find out what he means, what it is he alleges that you have done to him, you find that he is not accusing you of any actions that could be interpreted as ‘grooming’ for sexual purposes, and there are no accusations of actual sexual activities. However the head of the professional standards office not only represents the accusation to your face as of this order of seriousness, despite the absence of any sexual activity and the absence of any intent to initiate or hide sexual activity, but she refers the matter to the relevant authorities. The police decline to take the matter further. But your plans to take a similar job with another organisation are terminated by the head’s referral to the State government working with children authority. This statutory body does not carry out any investigation of its own but relies on the information provided by the head to say that the organisation itself has carried out an investigation and are satisfied that child sex abuse occurred. This is a lie: the head has not had any proper investigation carried out, and in the absence of any facts alleging sexual activity, she cannot be satisfied that sex abuse occurred.

But of course not only has your ability to continue to work in the area for which you have been trained and are highly experienced been effectively terminated by Mark’s actions without you having the chance to defend yourself, but your 20 years of effective service with young people has been tainted by Mark’s accusations.

The head of the professional standards office writes, signs and gives you a letter containing what she says are ‘Mark’s’ allegations of child sex abuse. Now you would expect (in the absence of evidence of actual rape, sexual assault or some form of consensual underage sexual activity) that the head would be producing to you evidence of a course of grooming intentionally resulting in sexual contact of some sort whether to a lesser or greater degree.

Wouldn’t you?

Wrong.

Firstly there is no such evidence.

There is nothing even alleged to contain the slightest whiff of a climate of sexuality in your words and actions. All Mark can say is that he felt ‘uncomfortable’ at times working with you during the first 2&1/2 years while he was under 18. And yet he stayed working with you for 4 years after he turned 18. And nothing is alleged to have been said or done that would qualify as evidence of actions demonstrating an intention to groom for sexual pleasure or an invitation for sexual encounters or actual sexual encounters as a consequence.

What is the reality? Another little bit of law:

What is grooming?

As we saw in Part 2 there was no definition of grooming in either of the Anglican Church Sydney diocese Church Discipline Ordinances of 1996 and 2002. The concept of grooming was first defined in the national church and Sydney diocese Code of Conduct Faithfulness in Service adopted in October 2004. After that it was defined in the Anglican Church of Australia ‘Professional Standards Commission Model Guidelines for the Pastoral Supervision and Support of Known and Suspected Sexual Abusers in Parishes’ 15 December 2006.

However, there is no definition of grooming, not even with reference to the Code of Conduct Faithfulness in Service in the Sydney diocese Discipline Ordinance 2006 that replaced the Church Discipline Ordinance 2002.

Definitions:

‘Grooming is the manipulative cultivation of a relationship in order to initiate or hide sexual abuse of an adult or a child. In the case of child sexual abuse, an offender may groom not only the child, but also the child’s parents or guardians, and clergy and church workers.’ (Code of Conduct Faithfulness in Service adopted in October 2004.)

 ‘Grooming is the manipulative cultivation of a relationship in order to initiate or hide sexual abuse of an adult or a child. … Grooming can take many months or even years, during which the abuser builds a relationship and develops opportunities.’ (Anglican Church of Australia ‘Professional Standards Commission Model Guidelines for the Pastoral Supervision and Support of Known and Suspected Sexual Abusers in Parishes’ 15 December 2006)

The similarities between the two definitions are obvious, but there are some differences. The definition contained in the Code of Conduct Faithfulness in Service includes the information, more in the nature of a warning, that the activity of grooming can go beyond developing a relationship with the child to also developing a relationship with other adults to defuse their normally protective attitude in order to permit access to the child by the groomer who, they are erroneously led to believe, is a trustworthy person and a good influence on their child.

The definition contained in the Anglican Church of Australia Professional Standards Commission Model Guidelines gives instances of ordinary activities, such as working with the Scouts organisation, in church youth ministry or sporting groups, BUT these are examples which must be related back to the definition; there must be both:

‘manipulative cultivation … many months or even years‘– this means a course of conduct over a period of time that is intended to draw the child into an unhealthy relationship …

and

‘in order to …..’ means ‘with the intention of (initiating or hiding sexual abuse)’.

Without both of those elements the ‘examples’ are devoid of any possible grooming or sexual connotation. If it were otherwise, no-one could work for the Scouts, no-one could work with or for children and young people in the church whether ordained or not, nor could anyone work as coach of a junior footy team. Every gift would be suspect. Every babysitter would be under suspicion. Every good relationship between child or young person and an adult would be tainted with an undercurrent of innuendo.

The definition contained in the Anglican Church of Australia ‘Professional Standards Commission Model Guidelines’ also says this:

‘Grooming also occurs through increasing sexualisation of apparently innocent activities. Over time physical contact, cuddles and kisses of the victim, photographs and videos taken of the victim, and material on the internet shown to the victim, will become increasingly sexual.’

Thus the definition allows that ‘physical contact, cuddles and kisses’ are in themselves ‘apparently innocent’; looking at photos, watching a video together or looking at the internet are likewise, and indeed how could it be otherwise? Can you imagine a world in which merely showing to the members of the youth group blameless photos (taken with parental consent) of the group’s activities on a recent camp would embroil you in accusations of child abuse? What about kicking a soccer ball around with the neighbourhood kids at a street party? What about showing a child a website that will help them with their homework? Or teach them to speak Italian? Or enjoy a flash Riverland dance at Central Station in Sydney on St. Patrick’s Day 2011 on YouTube?[8]

What this means for the investigation and prosecution of alleged grooming:

This means that where certain ‘apparently innocent’ activities that built a relationship with the alleged victim occurred it is necessary to prove:

1. That these were carried out with the intention of initiating or hiding sex abuse; and

2. That there has been ‘increasing sexualisation’ of these activities.

 What is child or adult sex abuse?

Definitions:

Sexual abuse of a child means the use of a child by another person for his or her own sexual stimulation or gratification or for that of others. It includes: – and there follows a long list. (Code of Conduct Faithfulness in Service adopted in October 2004.)

‘Sexual abuse of a child means the use of a child by another person for his or her own sexual stimulation or gratification or for that of others.’

 ‘Sexual abuse of an adult means sexual assault, sexual exploitation or sexual harassment of an adult.

Sexual assault means any intentional or reckless act, use of force or threat to use force involving some form of sexual activity against an adult without their consent.

Sexual exploitation refers to any form of sexual contact or invitation to sexual contact with an adult, with whom there is a pastoral or supervisory relationship, whether or not there is consent and regardless of who initiated the contact or invitation.

Sexual harassment means unwelcome conduct of a sexual nature, whether intended or not, in relation to an adult where the person reasonably feels in all circumstances offended, belittled or threatened.

Examples and clarifications of these expressions are found in Faithfulness in Service. Sexual abuse includes serious criminal offences such as sexual intercourse without consent (rape), indecent assault and possession of child pornography.’

(Anglican Church of Australia ‘Professional Standards Commission Model Guidelines for the Pastoral Supervision and Support of Known and Suspected Sexual Abusers in Parishes’ 15 December 2006)

What do these definitions mean in relation to the scenario of Mark’s complaint?

According to his complaint as conveyed to you by the head of the professional standards office of the organisation (and you agree with her) you have not made any inappropriate suggestions or engaged in any sexualised behaviour when Mark was a child or an adult. You have not created a climate of sexual attraction between you both. And there has been no kind of sexual contact between you. Instead, he has relied on instances of innocent physical contact and activities to create in his mind (although not in the minds of others who experienced the same) a climate of suspicion – presumably of homosexual attraction – which he says made him uncomfortable from time to time before he turned 18.

How did ‘overstepping relational boundaries’ turn into an accusation of‘grooming’ and ‘child sex abuse’?

In 2005, when Mark is 19 years old and embarked on his tertiary education, and you and he have been to a training session on the provisions of a new (October 2004) Code of Conduct he starts talking to you about feeling uneasy about what he calls overstepping his relational boundaries in respect of some things you and he did together when he was under 18. Whenever he expresses such a view you respect his until then unsuspected attitude to whatever it was that was concerning him, even though you do not imagine for a minute that Mark regards the actions as sex abuse. By 2007 you decide that although you did not intend anything sinister by your actions, and nothing sinister or unlawful followed, and you did not repeat or continue with any actions that he expressed any uneasiness or embarrassment about, you will write him an apology.

Apparently he throws this into the waste paper basket, whether as a rejection of it or because he does not think it necessary you would not know because he still continues working apparently amicably with you while he completes his tertiary training and in 2008 he leaves for his first full-time appointment. Four years later, without any further discussion between you and he, he ‘reports’ you to the professional standards section of the organisation and severs any form of relationship between you and he.

What are relational boundaries?

It is clear that these are not anything of the nature of grooming or sexual abuse. Those are separate categories. They are clearly defined and examples are easy to understand. They can be identified objectively: even if sexual ‘intention’ may seem to be a subjective element, it is in fact easy to prove objectively. The fact of sexualisation is an objective fact. There is no way in which it can be argued that for one person sexualisation is not the same as for another. It is an objective fact that is singularly lacking from Mark’s complaint.

But ‘relational boundaries’ are an entirely different thing. Firstly they do not figure in any of the definitions in relevant legislation and Codes of Conduct as such. Therefore they are not something that the professional standards office is empowered to deal with. Relational boundaries are ways of regulating professional and personal relationships so that they do not cross the line to become uncomfortable or, possibly, abusive. But until they cross that line, they are mainly descriptions of subjective attitudes. These are the ‘apparently innocent’ activities referred to in the definition of grooming in the Anglican Church of Australia ‘Professional Standards Commission Model Guidelines’ which need to become ‘increasingly sexualised’ to qualify for the description of ‘grooming’. Until there is evidence of increasing sexualisation they remain not just apparently innocent but innocent in reality.

‘Overstepping relational boundaries’ is NOT a ‘hanging offence’. More one for wise counselling to prevent just such misconceived complaints being made. And even then, that description may not be a realistic assessment of the relationship.

 As a final insult, the head said that an apology is abusive in the case of sex abuse. Yes, you read that correctly: an apology is abusive in the case of sex abuse.

But, firstly, the original apology was not in relation to anything that could be construed as sex abuse, child or adult. And, you will say, if there is sorrow for a situation or for someone’s perception of a situation (even a situation not of one’s own making) and an apology is offered as an act of reconciliation, is this not a good thing? Should it not be accepted and should not the recipient then be able to move on?

Where an apology is made between two Christians there is a positive duty to accept the act of repentance. Consider this passage from Luke 17: 3-4 (in the New International Version translation):

17 Jesus said to his disciples: … ³ … “If your brother or sister sins against you, rebuke them; and if they repent, forgive them. ⁴ Even if they sin against you seven times in a day and seven times come back to you saying ‘I repent,’ you must forgive them.”

Jesus did not make an exception in the case of sex abuse. Nor should we.

So what is this all about?

One cannot even start answering this question without considering the history of the events now being disclosed in all their frightfulness in the evidence to the Royal Commission into Institutional Responses to Child Sex Abuse still conducting hearings around the nation in 2014 and the impact of the discovery that even senior clerics acted to shelter confessed child abusers; they warned the abuser when there was going to be a Police investigation, allowing them time to flee the country; they moved the abusers  to other parishes, even overseas without warnings to other parishes to allow appropriate safeguards to be put in place (not that these would be likely to work against a committed paedophile); they covered up abuse ‘to protect the reputation of the church’.

What is the result of these disclosures?

I believe that a sinister form of ‘political correctness’ has crept in under the radar in the wake of a whole series of disclosures of terrible child abuse – sexual, physical, mental, emotional and spiritual abuse – within Christian organisations and institutions. This has been going on since well before 1998, and since then the Anglican Church in line with other Christian denominations have set up programs and departments and directors and codes of conduct and church legislation and committees to try to combat this terrible evil.

Has it succeeded?

No, by and large these have proved to be no more than responses to protect the institution against being sued and to prevent the individual cases from being tried in open court and under media scrutiny. They have tried to do this by buying off the victims, often with ludicrous and offensive offers. Or they have fought tooth and nail to prevent a legal precedent being established in the Courts that would open the doors to legitimate complainants. They have acted to ruin those who had the temerity to sue – those already emotionally and spiritually damaged people – to push them into financial and emotional collapse. The Federal Royal Commission into Institutional Responses to Child Abuse 2013/4 has already made highly critical comments about the Roman Catholic Church’s ‘Towards Healing’ program, which has a lot in common with the provisions of the Anglican church legislation and the administration of that legislation in the PSU offices in each diocese.  The reader can look at my article about the failings of the Church Discipline Ordinance 2002 (Sydney diocese) and the Discipline Ordinance 2006 (Sydney diocese): ‘The Anglican Church Criminal Law System: The Anglican Church in Australia now acts as Police, Prosecutor, Judge and Jury against its own congregants.’ (First published 2008) on the website www.churchdispute.com

When certain church leaders became aware of undeniable physical and sexual abuse of children in church institutions those leaders did everything they could to hide and downplay what had happened to the real victims – ones who had not only been intentionally abused, often over long periods, but disbelieved by the superiors to the people who had abused them, and who should have acted to save these real victims. A look at the lives of these people in adulthood shows the effect of this abuse colouring their ability to find happiness and contentment in all aspects of adulthood.

This is a scandal.

Almost unbelievably, this has been accompanied, among senior clergy and officers and staff of the church organisations, by a complete loss of a sense of when things are wrong and when they are OK. There has been an inability or unwillingness to apply the definitions. There has been a confusion between innocent acts that remain innocent in fact, and innocent acts that become increasingly sexualised. Innocent acts have been stigmatised as abuse when any concern about them is more properly in the way of risk management: to prevent them from becoming sexualised in any particular instance or to prevent a false accusation that they did become sexualised.

There are instances where the person responsible for professional standards has lost his way: failed to act where there is ample evidence of a need to act and yet acted where there is an absence of any evidence of such things as jurisdiction or anything remotely like abuse.

And when a complaint does not disclose evidence of abusive intention and abusive consequences on the part of the ‘respondent’; nor any manipulative course of action; nor any of the elements of the sexual corruption of otherwise innocent actions; nor actual abuse, whether physical, sexual, mental or spiritual abuse, there needs to be an honest assessment that this does NOT constitute a case of grooming and child abuse, not even on the face of it.

There also needs to be a frank assessment that actions falling short of abuse, sexual or otherwise, or grooming do not necessarily require the implementation of the whole awful discipline apparatus of the organisation, because they are not serious enough and, just as in the scenario with Mark, not only did they not result in objective and quantifiable harm but on the facts of the case they conferred a benefit and they were done with the best of intentions which were realised.

 This raises another two issues.

Strict liability:

The first is that there should never be the imposition of strict liability on actions except in relation to those that clearly fall within the description of child or adult grooming and abuse, sexual or otherwise. Strict liability means that regardless of intention (and lack of objective harm) the actions complained of are wrong in themselves. Any person of good understanding of moral values and the difference between right and wrong would quickly identify those actions as ‘disgraceful’, not fitting where performed by a person who is in a position of trust in relation to the victim; actions that if known publically would cause a public scandal (to borrow a few phrases from the two successive Church Discipline Ordinances and the Discipline Ordinance of Sydney diocese of the Anglican Church).

So-called ‘good intentions’ have no place in telling a child that he or she will be pleasing God by submitting to horrific sexual abuse; or belting a child in order to make them ‘good’. But in other actions that are not in themselves abusive, the present trend to ascribe strict liability without considering the twin elements of intention and lack of harm is just plain wrong and this is an abuse of process. Thus, why should it be that a greeting hug can be characterised as child abuse?  Why should a leg massage to prevent or treat a build-up of lactic acid before or after taking part in a City2Surf race be of itself characterised as abuse? Why should sharing a double mattress comfortably ensconced in one’s own sleeping bag with another person likewise cocooned be anything other than a matter of simple comfort and expedience in the absence of anything else indicating where this ‘innocent action’, along with the earlier examples, has become sexualised?

It has to be said that it is not the Discipline Ordinance 2006 nor its’ two predecessors that ascribe strict liability: it is the personnel of the church organisation.

Delay:

The second issue is that there has been considerable delay by Mark in taking his issues with you to the professional standards office. If there was concrete evidence of grooming and child sexual and/or physical abuse this would not be an issue: once Mark reported such abuse to the Police, they would still be able to charge the alleged perpetrator even if the actions complained of took place many years before because delay does not act as a limitation on bringing charges: the State criminal law can deal with such cases whenever they are brought. This comparatively modern development of setting aside any Statute of Limitations in such cases recognises the devastating effect of such abuse on children, ruining their lives, and in adulthood forcing them into depression and other psychological states that make bringing the complaint almost impossibly painful, so that delay is almost an expected feature of such cases. However, in the case of other complaints which can only be dealt with within the Anglican Church Sydney diocese discipline process, delay causes some significant problems for all who are caught up in the process.

Problem 1: Retrospectivity and differing definitions

Firstly, there is the retrospective provision in the Discipline Ordinance 2006[9]. This raises some interesting problems in relation to the successive Church Discipline Ordinances of 1996 and 2002 because of the latter’s replacement by the Discipline Ordinance 2006, and therefore changes in the formulas of the ‘test’ that has to be applied to the facts of each case.

Thus, in Mark’s case of non-sexual behaviour: that occurring between 1996 (the Church Discipline Ordinance 1996) and 22 October 2002 (the date of assent by the then Archbishop to the Church Discipline Ordinance 2002) which are complained about during this time could not have been the subject of a complaint to the Archbishop (there was no PSU at that time) because the only behaviour by a lay person caught by the Church Discipline Ordinance 1996 was ‘sexual conduct’.[10]

Then after 22 October 2002 until 30 October 2006 (the date of assent to the Discipline Ordinance 2006) the nature of behaviour that could be complained of (to the newly formed PSU) changed a little, but overall there was still a strong emphasis on actions of a sexual nature[11] apart from the definition of ‘child abuse’ which encompasses the possibility of non-sexual actions, subject to what the ‘right thinking member of the church of this diocese’ would define it to be.[12] So if the behaviour complained of fell under the jurisdiction of this Ordinance it is a fair assumption that something like physical abuse – corporal punishment of children for example – would easily be identified by the ‘right-thinking members’ but would these same people have any concerns about ‘innocent’ behaviour devoid of physical harm or sexualisation? I think not, at least not before the Code of Conduct Faithfulness in Service was passed by Synod in October 2004. So if Mark had complained at the time about behaviour occurring between 2002 and before 22 October 2004, it is very unlikely that the complaints could have been accepted by the PSU, and even if accepted by the PSU it is more than likely that the right-thinking members of the church of the diocese would have rejected them.

But due to the retrospective provision of the Discipline Ordinance 2006 there is both benefit to the complainant and detriment to the respondent in relation to the nature of the acts and behaviour that could be dealt with.

Problem 2: change of terms of the ‘test’ of offending behaviour:

1996 – 22 October 2002: Where behaviour occurring between 1996 and 22 October 2002 was complained of within that period the ‘test’, that is the definition of what constitutes behaviour prohibited by the Church Discipline Ordinance 1996, being ‘sexual misconduct’, was determined by what ‘right thinking members of the Church’ would regard as ‘disgraceful and inconsistent with the standards which should be observed by a Christian lay person holding such a Position.’  (in the case of a person who is not ordained)

23 October 2002 – 10  October 2006: Where the behaviour complained of occurred and was complained of in the period of 23 October 2002 to 10 October2006 we still have the basic test applied to the definitions of ‘child abuse’ and ‘unacceptable conduct’, that is, the test of the ‘right-thinking member of the church’, with the words ‘of this diocese’ added, not so much because of any apprehension that right-thinking members of the church of another diocese would not be as perceptive, but at least to limit the scope of evidence of what such people would think to the opinion of local right-thinking members of the church[13].

24 October 2006 onwards: But when we get to the Discipline Ordinance 2006 there is a major change in respect of behaviour that does not fall within the definitions of child or adult sex abuse: the ‘test’ no longer refers to an Anglican church ‘insider’s’ opinion, but, for better or for worse, brings into account the opinion of the wider community.[14] The definition of ‘disgraceful’ is not given in the Ordinance which throws the parties back onto a dictionary definition. Who it is who would be scandalised or generate an evil report about the alleged behaviour is not defined. What happens if a PSC or Tribunal member individually and subjectively would be scandalised but the person in the street would say: ‘So, what’s your problem?’ Or is it someone in the media who has to be scandalised (a member of the ABC’s The Chaser team perhaps – notoriously non-scandalised, about their own actions at least[15]). It is these changes and the infelicities of drafting that make delay even more difficult for the proper conduct of any proceedings in the church discipline system, but also makes it difficult enough for those whose conduct is subject to the legislation to ‘comply’ with the legislation when they are at risk of being accused under definitions that did not exist at the time the behaviour occurred, as is the case in Mark’s case study.

 Problem 3: retrospective legislation and the UN Convention on Human Rights

Delay in Mark’s case and the retrospective provision of clause 99 of the Discipline Ordinance 2006 raises another issue and that is that at the time of the matters now complained of, there was no Code of Conduct Faithfulness in Service (October 2004), only the Code of Conduct for Clergy 1998. This means that actions that could be complained of that are described in terms of the definitions in the Code of Conduct Faithfulness in Service were not necessarily so described at the time of their alleged commission, if described at all, and none of the definitions in the previous Church Discipline Ordinances of 1996 and 2002 refer to the Code of Conduct for Clergy 1998 descriptions nor the guidelines for people working with young people.

To charge someone retrospectively with something that was not of that description at the time is a breach of the spirit of the UN Convention on Human Rights, Article 11 (2)[16]

Problem 4: Delay brings about loss of evidence and constitutes an abuse of process

The greater the delay the more likely it is that people and other sources of evidence will no longer be available. People can move interstate or overseas, change their names, die or suffer an illness that would disqualify them from giving evidence, if indeed they could even now remember the events so far in the past. Documents are lost or destroyed, however innocently. In the Equity Division of the NSW Supreme Court it has been always the case, since first the concept of Equity was developed in English courts to ameliorate the harshness of the common law, that delay was a bar to a person bringing their case in that court. The Discipline Ordinance 2006 does recognise this[17] but an application has to be brought to the Tribunal for the charges to be struck out, with time and cost implications for all involved.

The better way, instead, would be a reference to the time periods set out in the Statutes of Limitations in the NSW civil and criminal codes. This would require the complainant to seek leave from the Tribunal to bring a case to the PSU and thence before the church Tribunal (other than for grooming and/or child sex abuse) when they have delayed beyond the time limit. This would be fairer than putting the burden on the respondent to argue why the delay has caused unfairness to him or her by making it difficult if not impossible for important evidence to be made available to the Tribunal so that a just and proper decision can be made.

The curse of subjectivity and the importance of objective evidence.

I want to look at, for comparison, another area where the church law we are considering (as it is drafted and in practice) and Federal and State civil law part company which, only applicable to adults, is this: in Federal and State sexual harassment law there is no room for ‘convicting’ a person in relation to a simply subjective response by the complainant to the actions and/or words complained of. There is an over-riding requirement that a reasonable person would regard such words or actions as sexually harassing – in the words of the legislation, that the person saying or performing the words and/or actions could reasonably be expected to know that the person on the receiving end would feel ‘offended, humiliated and/or intimidated’.[18]

There is an important principle here: no-one should be in the position of being at fault for failing to take account of unsuspected sensitivities, let alone psychological or psychiatric states in a particular person (other than the complainant’s treating psychologist or psychiatrist). And the reason for this is that otherwise anyone could make a totally fabricated case against someone simply by saying so, and there would be no way of testing whether they were being truthful or not. Boards, Commissions and Tribunals all have to reject the subjective response in favour of the reasonable person test.

In cases of alleged sexual abuse the responses of the so-called ‘child’ (who might be as old as 17 and the holder of a licence to drive a motor car) are not looked at because certain actions are declared to be ‘always unlawful’. In cases of alleged grooming for sexual purposes the behaviour including the corruption of otherwise innocent acts with the intention of initiating or hiding sexual abuse is the issue, not the subjective reaction of child (or associated adult). But where it is alleged that unexceptionable actions are abusive, or cross relational boundaries, or however they are described, then this brings into the spotlight the child’s subjective reactions and whether, objectively, another child, the so-called ‘reasonable child’, could be anticipated to respond to the words and actions in the way, subjectively, that the complainant alleges he or she did at the time.

So in all fairness any Board, Commission, Court or Tribunal has to receive evidence of what others who were children at the time and who received similar treatment thought about it and how they reacted to it. If they were not concerned about it, then the complainant has to fail in his or her complaint. Note again, I am not talking about actual child sex abuse or grooming: in these cases it often is the case that the complainant has been induced to ‘fall in love’ with their abuser and their subjective response is irrelevant.

But if, in Mark’s case which does not involve child sex abuse or grooming to initiate or hide sexual abuse, such evidence of others who were children at the time and received the same treatment had no problem (then or now) is available, then his complaint was never valid. And when he started searching for other people to support him and found that the vast majority told him they would not, his complaint should not have been taken any further. And also, perhaps he should accept counselling that his subjective reactions are not appropriate in objective terms, that he cannot blame someone else for things he is struggling with in his own life, and to assist him to take it on himself as an adult to deal with his issues in a mature way.

Being ‘uncomfortable’

Mark has expressed his subjective feelings as ‘uncomfortable’. This raise two problems:

First problem: what does he mean by ‘uncomfortable’? One can be physically uncomfortable sitting on a church pew – un-cushioned wood –  that just catches you under the thighs and causes the onset of agonising cramps as the sermon slowly wends its’ way to a conclusion.  One can be emotionally uncomfortable in all human relationships (a problem for persons whose personality difficulties lie within the autism spectrum – as Asperger’s syndrome is now called) or just in one human relationship. One can be spiritually uncomfortable in undergoing the conviction of a particular sin by the power of the Holy Spirit.

And one can be sexually uncomfortable: one can perceive, whether in reality or in one’s fearful imagination, that one is a target of sexual attention that one feels unable to deal with. As there is no evidence of any actual sexual overtures or activities between you and Mark, it the case that Mark feared that you would ‘jump him’, as the modern phrase goes, or otherwise inveigle him into homosexual or heterosexual activities (depending on your gender), especially those activities that he half fears that he desires? And yet this would be an irrational fear seeing that you had mentored him, successfully on his say-so, on the usual teenage issues of sexuality and internet porn.

This would be a case of ‘reverse grooming’: where your words and actions were being misinterpreted as constituting sexual invitation and raising fears of either forced or consensual homosexual or heterosexual activities, thereby making Mark feel ‘uncomfortable’. Now if your words and actions could reasonably bear that interpretation then, in the absence of any intention or consequences, there is an issue for wise counselling for both of you. Where your words and actions could not reasonably bear that interpretation then one has to look at Mark’s personality and sexuality issues from the point of view of the ‘reasonable’ person.

The second problem is this:  feeling ‘uncomfortable’ does not appear in any definition of child abuse or grooming. Nor in the definitions of sexual harassment in Federal or State legislation.  In the latter, the words used are ‘feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances’.

All of this means that Mark’s alleged comfort or discomfort is irrelevant to the definitions of abuse or harassment (sexual or otherwise) and irrelevant in its’ subjectivity which is unsupported by the evidence of the ‘reasonable’ person.

What is the ‘real’ situation for Mark?

It is absolutely clear that what Mark did not hear in the Faithfulness in Service training sessions was that any of the behaviour that caused him to complain was sexually abusive or grooming, and none of it demonstrated sexualisation of otherwise innocent behaviour.

I think that what Mark heard in the Faithfulness in Service training sessions was that there are certain actions, in those days of gradually increasing alertness to the possibility of child abuse, that (a) would be best avoided in order to prevent the possibility of an accusation, or, (b) flagged as unwise or inappropriate in order to deny a predator access to children. A large amount of material relevant to youth ministry leaders in Faithfulness in Service is identical with that which is contained in the Guidelines within the Code of Conduct for Clergy 1998, which I rubbished for vagueness and pious hope, rather than legislative clarity, in Part 2 of this series of articles. In places in Faithfulness in Service there is an expanded form of the earlier guidelines, but all the descriptions of dealings with children and youth, other than sexual misconduct, are undermined by such phrases as ‘if possible’, ‘to minimise the risk of being accused of or engaging in misconduct’, ‘where practicable’ and ‘think carefully in advance about’, to mention a few of many examples.

What he heard may also have given him a sense of vindication for feeling at times uneasy, ‘uncomfortable’, as a result of his own private personality issues, when no-one else was uneasy, uncomfortable or in the slightest way concerned about the same behaviour. At the time when he was between 16 and 18, it is clear that youth of similar age in the group had no problem.

However, instead of increasing maturity bringing him to a more realistic assessment of the effect on him of the behaviour, it seems that he nurtured the less mature feelings of four, six, and eight years ago (ignoring opportunities to make a complaint and refusing an apology), fed and watered them in secret until he reaped a crop of devastating anger and hostility towards someone who had befriended, mentored and encouraged him and done him no harm, ripe to take unto himself the character of victimhood and make a complaint 10 years later.

Conclusions to be drawn from this three-part series

By the time that the Code of Conduct Faithfulness in Service came into effect in October 2004 an Australian Governor-General, Dr. Peter Hollingsworth, had been forced to resign in mid-2003 amid accusations that, when he was Anglican Archbishop of Brisbane, he had taken active steps to protect a member of the clergy accused of child sex abuse, as well as failing to respond appropriately to a complaint of grooming and sex abuse against a man who had by then been promoted to Bishop. Both these complaints proved to be real and well-founded. So by then the carefully constructed protections of clergy and employees of church affiliated institutions were crumbling. However, it was not until 2013 – 14 with the reports of the hearings of the Royal Commission into Institutional Responses to Child Abuse that it was publically revealed how pervasive had been both institutionalised child abuse and the protection of those involved in it by senior members of the Anglican Church, among other people including their legal advisers.

In the introduction to this Part I said that there were two questions that arose when I was considering the examples I have been analysing and comparing them with the way in which the Anglican Church has reacted to the real scandals that have been emerging. These scandals came first in a trickle of media reports from time to time, enough to precipitate the appointment of the Royal Commission; and thereafter in floods of damaging admissions of (or attempted avoidance of responsibility for) horrifying sexual and physical abuse of children in the care of the Anglican Church, among other Christian churches, as well as children in the care of secular institutions, detailed sickeningly in the evidence given to the Royal Commission.

I have been analysing cases that do not on any rational interpretation of church legislation let alone State Crimes Acts constitute child sex abuse or child abuse or abuse of any nature, such cases as: in Part 1, buying a lost child an ice-cream; in Part 2, apparent breaches of the Code of Conduct for Clergy 1998 guidelines for youth workers by Professor Albus Dumbledore in his relationship with Harry Potter; in this, Part 3, apparent breaches of the Code of Conduct by Elijah, Jesus and you in Mark’s case. I pointed out that there was no case for ascribing strict liability to behaviour referred to in these guidelines, and that intention and good character, as well as consequences, were highly relevant to how such behaviour was characterised.  I have also pointed out that there is no place for subjectivity in determining whether abuse or harassment has occurred; in fact the application of the ‘reasonable person’ test to the complainant’s reactions leaves no room for simply  complaining of feeling ‘uncomfortable’. This subjective complaint is irrelevant.

In terms of specific problems with church legislation, firstly, I pointed out that the October 2004 Code of Conduct Faithfulness in Service took the guidelines for behaviour that is not grooming or child sex abuse referred to in the earlier Code of Conduct for Clergy 1998 and still hedged these around with non-legislative language, indicating that they are not prohibitions as such, merely recommendations (where possible) in order to try to avoid such complaints as in the case study of you and Mark.

Secondly, I pointed out that retrospectivity of church legislation breached the spirit of the UN Convention on Human Rights, and it is undesirable for the Anglican Church of Australia to be less concerned with fundamental principles of human rights than the world at large.

Thirdly, it is also undesirable (morally wrong, even) for the Anglican Church to be less concerned with justice than the world at large. And yet there is the evidence of the manner in which a number of its’ functionaries have behaved, not only in cases undeniably concerning child sex abuse which were covered up, but also in cases that did not involve child sex abuse, which have been prosecuted with ferocity Some of these were only  brought undone by unwelcome publicity and a push (by myself among others) towards a judicial process which had to validate the denials of the respondent and dismiss the complaint[19]. In other such cases justice remains not done.

For example a person who was accused in a case similar to Mark’s case study was told by the director PSU of the Anglican Church Sydney diocese that he was guilty of child sex abuse, and an announcement re-drafted by the director to include the word ‘grooming’ was made to the clergy, staff and parishioners of the relevant parish church. Yet the complainant never claimed originally, nor later, anything more than ‘crossing personal boundaries’ or, later ‘crossing physical boundaries’ which none-the-less has nothing to do with sexualised behaviour, just the complainant’s subjective feelings of being uncomfortable which were not expressed at the time despite him being between 16 and 18 years of age.

This now has had to be conflated into an allegation of ‘disgraceful’ conduct as the director PSU has tried to backtrack on his own inappropriate initial dealings with the complaint and the respondent.

The two questions:

These are the two questions that arose when I was considering the way in which certain people had been dealt with by church functionaries by falsely characterising as grooming and child sex abuse simple ordinary actions carried out by people of good character with good intentions and beneficial results:

Question 1: “Are those responsible for child protection now focusing on the over-zealous prosecution of false claims to divert public attention from dereliction of duty by some apparently ‘right-thinking members of the church’ (including bishops and archbishops) resulting in real abuse of real victims, firstly, by Anglican church workers and secondly, by the church’s refusal to deal appropriately with them?”

In a number of cases (and only one case would be one too many) there has been a subversion of both common sense and the provisions of church legislation and Codes of Conduct by attributing the tags ‘grooming’ or ‘child sex abuse’ to innocent and helpful behaviour. This is so wrongheaded one can only wonder if it is intended as a diversion from failures to identify real predators and hand them over to the Police for investigation. Innocent people have been targeted in a way that amounts to persecution of themselves and their families. Instead the church authorities should have been using their resources to cooperate with the State Police force for the prosecution of the many cases of abuse by Anglican clergy and by employees of Anglican Church affiliated institutions that are now being uncovered.

Question 2: In the light of the abandonment of proper ethical and/or legal process in past cases as well as a current case in the Sydney diocese professional standards system, I pose another question: “is any innocent person safe from false claims?”

The answer has to be: no, of course not.

If you look at the complaints that I deal with on my website concerning the Dobbs family, Drew and Pippa and John’s story you see a pattern of something more sinister than mere incompetence and unprofessionalism, although there is enough of that. You see a culture of the arrogant sweeping aside of all the proper and appropriate safeguards that a democratic society jealously protects, not just on paper but in practice: safeguards such as the right to remain silent when accused of a crime (this is the protection against self-incrimination – the evidence against a person has to be proved before the accused person needs to answer it); that the accused person has a right to be cautioned and to have legal advice and representation before questioning; that no ‘admissions’ obtained under threats, lies, misrepresentations and bullying can be admitted into evidence.

And these are not the only cases. Others have contacted me from time to time with details of mistreatment and denial of justice at the hands of a PSU which I have not (yet) written about. When you look into these cases you see a culture of ignoring law and best practice. In one case a director PSU decides he can act outside his authority with no regard for jurisdiction (the threshold issue that always, outside the church, has to be considered in bringing court proceedings). The code of ethical behaviour that legal practitioners are bound to observe has been ignored and flouted by some legal practitioners who have been appointed to the position of director PSU. The competence that is required of a legal practitioner is nowhere to be seen in certain words and actions of some of those PSU directors in some cases, a problem exacerbated by the (church) legislated activities of the PSU I highlighted in my article): ‘The Anglican Church Criminal Law System: The Anglican Church in Australia now acts as Police, Prosecutor, Judge and Jury against its own congregants.’ (First published 2008) previously referred to. Behaviour like this in the world outside the church would bring censure. In the church it is validated, if anything, by those responsible for the actions of the PSU.

It is a sad day when the church condones behaviour that is less ethical than the behaviour that Australian society requires of its’ police, investigators, prosecutors, lawyers and judicial officers.

Throughout the Anglican Church in Australia, from Archbishops ‘down’ in the hierarchy of clergy and church workers one sees behaviour that demonstrates that there is a prevailing view, it would seem, that anything is permissible in the quest to root out child abuse: ‘for the greater good’ – the infamous justification for all sorts of oppression, torture and murder from the Spanish Inquisition to present day atrocities. And yet some bishops and archbishops and PSU directors have in the past as well as the present ignored justice and truth and lent their reputations to cover-ups and mistreatment of those victims of indisputably abusive behaviour who have the temerity to seek redress for their undeniable sufferings. Yet at the very same time, they have been pursuing cases that have no basis for action.

What is going on here?

In simple terms, Satan has won a double victory against the Anglican Church. Firstly, God’s Name, His holiness and righteousness have been defamed by the abusive priests and church workers and also by the church hierarchy and officers that have sought to cover up real abuse, Secondly the church has been led into wild-goose chases against innocent people, in defiance of God’s reputation for truth and justice, and victimised these people while, again, the guilty have been protected. The innocent person who stands up to the bullying and affirms his or her innocence is berated, threatened and defamed. While standing in the way of the proper prosecution of some of the most appalling abusers and the claims for compensation for ruined lives (and, even more importantly, for ruined faith), some of the church hierarchy of clergy and officers have themselves ruined the lives of the unjustly accused and they have allowed the mistreatment of innocent people and their families.

Then there is a third victory for Satan: the clouding of the minds of those who have the responsibility to root evil out of the church, so that they can no longer discern what is evil and what is good.

Is buying a lost child an ice cream child abuse? Of course not!

Did Professor Albus Dumbledore abuse Harry Potter? Of course not!

Did Elijah abuse the widow’s dead son? Of course not! Did Jesus abuse the ‘little children’? Of course not!

Did you abuse Mark? Of course not!

It is time, overdue in fact, for the church to make a commitment to justice and truth, and for integrity and clear-sightedness to prevail; for innocent people to be protected from real abuse and from cover-ups, and other innocent people to be protected from bullying and false complaints.

The time is overdue for the Christian church to clean out all this which prevents it from being holy and righteous in God’s sight.

Post filed under Anglican Church, Drew & Pippa.