This is an article I wrote and first published in 2008 on Louise’s Page of the website www.anglicanfuture.com. It remains as relevant now in 2015 in the light of Drew and Pippa’s case as it was in the light of the Figtree affair back then. Nothing has changed, the culture of incompetence and ruthlessness still prevails, I am sad to say. The square boxes contain some up-dated comments.
The Anglican Church Criminal Law System:
The Anglican Church in Australia now acts as Police, Prosecutor, Judge and Jury against its own congregants.
by Louise Greentree
In The Melbourne Anglican November 2007 the Registrar, the Director of the Diocesan Professional Standards Unit and two members of the Professional Standards Committee of Melbourne Diocese wrote a response to a letter from Wendy Hunter, published in the same edition, in which she lamented the church’s over-response to ‘sexual offences’ and pointed to the need to provide for responses that distinguished between different kinds of ‘inappropriate behaviours’. The diocesan response says, rightly, that the consequences of the betrayal of their position of power and trust by clergy and diocesan employees who abuse others is very great and totally unacceptable. What was the evil that has surfaced only in recent years? Not that abuse occurred, but that the church in the past failed to deal appropriately with the allegations. Is it possible that in trying to rectify this evil the church has gone too far?
Louise Greentree[1] argues that the Church has set up a parallel criminal legal system that dispenses with the necessary checks and balances that are built in to the criminal system of a civilised society, as evidenced by the State and Territory legal systems, and it is thereby victimising its own parishioners in the name of preventing sexual abuse. There is a confusion of thinking that results in the application of legislated responses to the worst possible case, to simple errors, mistakes and innocent behaviour of everyone associated with the church. The church says that it wants to make it a safe place for the most vulnerable in society. This paper argues that the church parish is no longer a safe place for any parishioner as a result of the operation of the church’s criminal legal system.
There is no doubt that sexual and other forms of physical abuse of children are sickening and should be rooted out of Australian society. This includes the activities of the committed paedophile, the abusive step-parent who shakes an infant stepchild to death, the disturbed mother who kills her baby, the incapable parents who allow their child to starve to death. To achieve this requires the utmost vigilance on the part of ‘teachers, friends and neighbours’, fully funded and supported government employees with the power to remove children from places of risk, the provision of safe and loving foster homes for the abused children, and a fully empowered, equipped and supported State criminal system – from investigation through to prosecution to incarceration – to deal with offenders. Equally the abuse and exploitation of vulnerable adults and assaults and sexual offences against non-consenting adults are unacceptable.
None of these things (apart from severely cash-strapped Anglicare services) does the Anglican Church provide, and indeed it cannot do so. There are three reasons for this: the first is that it does not have State or Territory power and authority over citizens in order to do so; the second is that it does not have the resources; the third is that these activities are largely outside its mission.
Fundamental Principles of a State Legal System in Australia
The Australian criminal and civil legal systems provide a process for the resolution of the complaints of its citizens, providing punishment for malefactors and safety for its citizens through the operation of the criminal law, and providing a forum for the civilised resolution of civil disputes without resort to privately initiated violence. To achieve this the State relies on the Courts and an independent judiciary to determine, after hearings conducted mainly on strong adversarial lines, those facts that can be proved which allow the application of rules of law laid down through legislation (created by the elected representatives of the citizenry) and precedent (created by the judiciary).
There are a number of cherished axioms and fundamental principles that are enshrined in this approach, which anyone reading this article may be, or even may have been, very glad of for their protection. These principles have been developed over centuries of the development of a civilised legal system in what was an overwhelmingly Christian country, the United Kingdom, and imported into the Australian system with the colonisation of Australia by the British. They are based on a fundamental approach: that the person accused of even the most heinous crime is entitled to respect and to fair treatment.
- Independence of Police, Prosecution and Judges
The first is the principle of independence of those highly trained and competent persons who carry out the investigation, prosecution and adjudication of criminal matters, both from each other and from government interference. This is demonstrated in a number of ways:
- The Investigation of criminal matters is carried out by members of a highly trained Police force which is independent of the judiciary, and government interference with its proper function, but accountable to the State through the Minister for Police. The necessity for accountability is important because the powers vested in the Police necessarily violate the fundamental rights and privileges that attach to members of the State, such as powers to detain and interview without bringing a charge, powers of arrest, powers of entry onto private premises and search, and powers to remove private property for further investigation (such as computer hard drives, accounting and legal records and the like). All of these powers are exercisable only under conditions of accountability, through judicially granted warrants, through statutory limitations on detention without charge, and with statutory rights afforded to the accused, such as access to legal advice, and rights to inform someone that one has been arrested (this excludes consideration of terrorist legislation).
- The Prosecution of criminal matters is undertaken by a public-funded Department of Public Prosecutions of which the Director is a government employee appointed for life (in NSW still, at least), and therefore able to conduct his or her job without fear of government control. The prosecutors are fully legally trained and are bound by a strict code of professional ethics.
- The maintenance of a highly trained judiciary which, although owing individual appointment to the government of the day, is appointed for life (in most cases) and safeguarded from government interference in its decision-making.
- In addition the civilised society also provided a government funded service of Public Defenders in order to assist those who cannot afford highly-priced barristers from the private Bar to present their defense.
- Fair Process
Where a person is charged with an offence, they are entitled to have fair process in the manner in which it is dealt with. This requires that they be informed of the charge, that they be given the opportunity to hear and examine the witnesses that are giving evidence against them, and that they are entitled to present their defense. These principles of fair process are incorporated in the practice and procedure of both the civil and criminal law. Failure of a trial to observe fair process is always a strong ground for an appeal against any verdict or judgment.
- The principle that a person is innocent until proved guilty
A person who is charged with a crime is regarded by the law as innocent until proven guilty. Thus even the person who is refused bail is not held among convicted persons, but separately in a remand centre. The charged person on bail is allowed to get on with their lives subject to any conditions imposed by the Court to discourage failure to appear at the next Court appointment. That person is entitled to the full dignity of citizenship and protection from harassment as any other person until such time as the charge is proved against him or her and sentence pronounced.
- The standard of proof of guilt: ‘beyond reasonable doubt.’
The fourth axiom is that in most criminal cases, the standard of proof applied to criminal offences is that of proof beyond reasonable doubt.
- The requirement of intention to commit the ‘crime.’
The fifth is that in many crimes the prosecution must prove ‘mens rea’, that is, the accused person’s criminal intention to commit the crime, not just doing something by accident or mistake.
- The rule that the act must have been against the law at the time it was committed.
The sixth is that a person can only be penalised for something that was against the law at the time that the act (or omission) complained of was committed. Although this rule against retrospective laws has suffered some diminishment, it still exists strongly in the State criminal system.
- The Rules of Evidence instead of gossip and innuendo.
The seventh axiom is that a person can only be convicted on evidence that has been admitted into consideration in accordance with rules of evidence in relation to the crime for which they stand charged, and they cannot be convicted simply on the basis of gossip, innuendo or even ‘trial by media’.
- The right to remain silent (preservation from self-incrimination).
And the final axiom is that a person has a right to remain silent. The person who is arrested and interviewed is entitled to refuse to answer questions and to reserve his or her defense at any interim hearing until the prosecution has presented all its evidence. There are some exceptions to this axiom, such as that well before the final hearing the person will need to disclose an alibi if it is to be relied on so that the Police can make inquiries, but ultimately, the axiom means that it is up to the prosecution to prove the case, without the accused person’s assistance and an accused person is protected from self-incrimination.
State v Church law
The criminal law in every State and Territory of Australia recognises and provides penalties for crimes that include the following – child sexual abuse, including the offence of ’grooming’ and other forms of child abuse; apprehended domestic or personal violence; stalking and harassment; possession of child pornography; rape and sexual assault.
Anglican Church legislation now also deals with these offences regardless of the State and Territory legal system, due to the introduction by the National Anglican Church in Australia of the Code of Conduct and a model Ordinance in respect of misconduct which has been adopted, with minor variations, by all of the dioceses of Australia. The complaints systems of these dioceses of the Anglican Church in Australia (the church) recognise and seek to deal with sexual misconduct, not only against minors, and not only by parish clergy and employees but also with consenting adults and by a range of volunteers among the parishioners, ranging from those with ‘up-front‘ involvement in Sunday services (such as the worship and the music ministry team leaders) to those who arrange the flowers or serve a cup of coffee after services from time to time [but only provided that they are occupying positions of leadership – a fatal flaw with the advise given to the PSU by Acting Judge Grogan in the case because the husband was not in a position of leadership, but always subject to the direction of paid parish personnel as the Music Minister, when he played guitar on a roster of one of three bands, the refreshment ministry leader when providing espresso coffee and the Children’s Minister in relation to being a houseparent at the annual parish Children’s Camp].
Until these recent developments, parish clergy (who are not employees) were brought before a Tribunal charged with an ‘offence’ –
- That they had been convicted of a crime; or
- That they had acted in a manner that brings the church into disrepute (including such activities as committing adultery and failure to pay debts.)
Employees could be dealt with in terms of their employment conditions, whether incorporated into a formal contract or not. In other words – they could be sacked after following due process within their workplace. Parishioners were counseled by their clergy. Those whose activities landed them in prison were counseled and comforted by prison chaplains and visited by concerned Christians.
Why then is the Anglican Church trying to run a parallel criminal law system against not only the clergy but extending the definition to volunteers (ie parishioners), and extending the nature of the offences to lawful activities? The stated aim is to make the church a safe place for the truly vulnerable. Is this aim (a) realistic, (b) achievable without making the church an unsafe place for its ordinary parishioners, and (c) consistent in this format with the stated mission of the church?
Making the church safe for children and the vulnerable?
Is this aim realistic?
It is not a realistic aim because it ignores that fact that the church teaches that all of mankind are sinners. It is true that many of us fail to commit the spectacular sins, but in each person there is a fundamental deviation from God’s perfection. The church was formed to provide a place for sinners to hear about God, His saving grace through the death of Jesus Christ and the prospect of living the Christian life under the operation of that grace, not to provide a place for the perfect. The preamble to the church model legislation in effect proposes that everyone should be perfect. God teaches that we cannot be this in ourselves.
Does the aim make the church an unsafe place?
The stated aim is not achievable at all without making the church an unsafe place for its ordinary parishioners. This is so for three reasons.
1. The extended definition of ‘church worker’
The first is that the definitions of ‘church worker’ [have been extended in practice to] include even those parishioners who undertake voluntary activities for their parish that have nothing to do with positions of power and trust: recently a person serving coffee after the evening service has been included in this definition by a decision of the Chancellor of Sydney Diocese [Acting Judge Peter Grogan at the time].
2. Application of church criminal system to lawful acts
The second reason is that the legislation also applies to non-criminal, particularly (but not exclusively) sexual activity, not only by clergy (for whom it is a breach of their ordination vows) but also by ordinary parishioners. Thus it applies a criminal law system to activities that the State does not recognise as criminal.
3. Failure to protect fundamental rights of a proper criminal law system
The third is because the fundamental rights and the checks and balances of the State criminal system are not (indeed cannot be) provided by the church legislation. This becomes particularly evident when comparing the operation of church legislation with those fundamental principles of the State legal system discussed above. Applying these to the church legislation, the following violations are apparent:
C.1 No Independence of ‘Police‘, ‘Prosecution’ and ‘Judges’
Under the church legal system there is no independence of police, prosecution and judicial functions.
C1.1 The private investigator: Under church legislation, the ‘police function’ is carried out by a private Investigator who is paid by the diocese. The investigator has no powers to enter private premises, remove personal property for forensic examination (nor access to other than private forensic laboratories), nor to detain and question – in short all that the investigator can do is go into the parish and interview people, encouraging the collection of yet more gossip and innuendo. The investigator’s report is usually simply a reiteration of the original complaints (sometimes ‘beefed up’ after the complainants have had the opportunity to adjust their story to meet the matters disclosed by the accused person), and the denials, and the investigator does not have power nor access to the tools of investigation to go further. In the highly-charged emotional atmosphere of a parish where allegations have been made (and there is no privacy here – everyone knows about it, in confidence from their ten best friends), the work of the investigator can be a negative influence.
C1.2 The Professional Standards Unit The Professional Standards Unit which the church legislation sets up does not enjoy the same independence and respect that accrues to the Department of Public Prosecutions, although it attempts to deal with the process in a similar way. It is headed by a director and staffed by persons who are all employees of the secretariat. As a unit of the diocesan secretariat, there is no pretense at independence. Also, and this is a matter of great concern, there is no provision for the strong professional ethical framework that applies to the Department of Public Prosecutions and the work of its prosecutors.
C1.3 The Professional Standards Committee exercising judicial functions The maintenance of a highly trained judiciary which is safeguarded from interference in its decision-making by the authority – government or church is of great importance because it exercises judicial functions. It makes decisions on the evidence (or allows a jury to do so) and pronounces judgment or sentence. In the church system it is a matter of grave concern that all complaints will initially be ’decided’ by an untrained committee of persons drawn from different disciplines. It is hardly likely that any of them, other than those who are trained lawyers, will have the necessary understanding of principles of justice and fair process. In fact this committee process is the very antithesis of fair process. The church has created a situation where decisions can be made – and ordinary people subjected to a ‘finding ‘of culpability and the imposition of a form of ‘penalty’ – by untrained people purporting to exercise a judicial function. Only some cases will be referred by the committee to a properly constituted Tribunal where there is some attempt to provide fair process and to act judicially in an appropriate manner. The ‘penalties’ of the committee are ridiculous: if the ‘offence’ is so minor as to warrant admonishment or a re-education process (shades of the Chinese Cultural Revolution), then surely it should have been dealt with pastorally? What is the status of these ‘penalties’? Is there some file kept on parishioners so that it is known that certain people are not to be trusted to polish the brasses because they once kissed their neighbour?
Why Cooperate?
A very pertinent question is this: why would parishioners even agree to cooperate with the investigation and consent to have the matter dealt with by a committee, and not just approach the civil Courts with the institution of defamation or other appropriate proceedings, while in the meantime transferring their Christian fellowship to another denomination? Part of the answer appears in point C1.4 and in C1.8 below.
C1.4 Failure to provide a funded public defense service The State provides funding to assist those who cannot afford highly-priced solicitors and barristers to advise them and present their defense. In Sydney diocese an amount of $1,500 made available to those unfortunates who are caught up in this system. The average lawyer charges some $300 per hour [these amounts have changed since this article was written but not significantly]. The quantity of documentation (much of it containing irrelevant and therefore inadmissible material) can be enormous, and the process can last between 1 and 2 years, and these factors soon exhaust the amount offered towards costs. The need to approach the State civil law system in defamation actions to correct the abuse of those improperly accused under the church system involves up-front payments of many thousands of dollars (usually only partially recovered when, as is often the case, the diocesan insurers settle the matter before it comes to a hearing).
C2 There is no Fair Process in the church system.
The comments under point C1.3 above deal also with the second axiom: entitlement to fair process. Clearly this is not the case in the church criminal law system. The closest that there is to fair process is in the Tribunal system, but under the 2006 amendments only some cases will be referred to a Tribunal and the Professional Standards Committee will be ‘vetting’ all the cases and dealing with many of them, according to whatever principles they may decide to apply and without judicial competence.
C3 Ignoring the principle that a person is innocent until proved guilty
The PSU of Sydney diocese has in a recent case been spectacularly unsuccessful in enforcing this principle, if indeed it does exist in the church parallel criminal law system.
Case Study
In a Sydney diocesan south coast parish not only has the accused person been ‘barred’ from coming to church, but his wife and their six children also on the grounds (stated in a letter to the wife from the Assistant minister) that the presence of her and her children would make it unsafe for the young woman accuser. In this case there has been rampant gossip and the wife and her children have been ‘shunned’ in the streets by parishioners who should not only know better, but also should be counseled by the leadership as to their appropriate Christian responses. Unfortunately the Christian leadership in this parish cannot provide appropriate Christian responses. One or two of them have already telephoned clergy of other Christian denominations in the area to ‘warn’ them against offering Christian fellowship and support for any of the family.
The important thing to note is that all these things occurred before the diocesan investigation was commenced[2].
C.4 Standard of proof ‘beyond reasonable doubt’ for criminal acts
In neither case was there any question of applying standards of proof such as ‘beyond reasonable doubt’. In any event the failure to provide fair process includes failure to apply a proper standard of proof which, in the case of a committee, could be anything, and certainly subjective and unsafe.
C.5 Intention
The issue of ‘mens rea’ – that is the intention to perform behaviour that is abusive, is entirely absent in this same case[3]. The church legislation does not recognise anything other than a strict liability that ignores intention [this also is less applicable now, particularly in relation to the definition of grooming].
C.6 Acts complained of should have been unlawful at the time they were committed.
The allegation of child sexual abuse in the NSW South Coast case arises solely from two occasions (only) when the complainant says the accused person hugged her – once when she was aged 14, and crying in the family kitchen, and the accused person, his wife and family and their friends were all around. The second hug was at the age of 16, also in the accuser’s family home with his family, their friends and his wife in the house[4]. If these hugs are part of a ‘course’ of grooming behaviour, then doing it only twice with two years between hardly seems to demonstrate predatory competence. [And as I have written elsewhere, grooming has to demonstrate an intention to initiate or hide sexual abuse. Both of these complaints were subsequently rejected as unsustainable.]
C.7 Conviction on the evidence only
The commentary above also clearly demonstrates the way in which the church legal system violates the seventh axiom: that a person can only be ‘convicted’ on evidence that has been admitted into consideration in accordance with rules of evidence in relation to the crime for which they stand charged, and they cannot be convicted simply on the basis of gossip, innuendo or even ‘trial by media’.
Another aspect of this case is that the rector’s wife made some other totally unsupported accusations (when it seemed that perhaps reason would prevail over the inflated and unsafe accusations of the young woman). She alleged that she could bring forward 2 or 3 (or it may have been more – the gossip has inflated the number with alarming rapidity) women who had worked with the accused at the local University who, she said, had said that they had been sexually harassed by him. But there is no record of any complaint against the accused man at the university. His personnel file contains glowing reports. The accusation by the rector’s wife has never been followed up with anything like supporting evidence. Who are these women? What happened? When? Where? No-one knows and the rector’s wife will not, perhaps cannot, give any such details, but is apparently content to allow rumour and gossip to take their place[5].
C.8 Violation of the right to remain silent – protection from self-incrimination
Finally, the diocesan Discipline Ordinance 2006 purports[6] to make it an ‘offence’ if persons who are accused in this fashion do not cooperate with the investigation, and answer all questions put by the investigator truthfully and promptly. Firstly it purports to give the investigator the ‘power’ to ‘require’ the accused person to cooperate, even where that person is neither clergy nor employed by the parish or any church organisation. This is a nonsense, as the next clause demonstrates: it is only clergy and employees who can be then ‘charged’ with the ‘offence’ of refusing to cooperate.
Therefore the representation of a non-existent power over volunteer parishioners is a lie, a deception, a dishonesty such as one would not expect a church with its stated values to perpetrate. In the case of clergy and employees, they would be advised to take legal advice promptly, offer no explanations and no cooperation with the church system, and take their chances with the State legal system. For all the reasons set out above they cannot expect a professional investigation and fair process from the church under this present system.
Does the aim violate the mission of the church?
The third reason that the church cannot achieve its objective is that this is beyond the mission of the church. The church does not exist in order to be an enforcer of the State and Territory criminal law, nor should it be an enforcer of penalties for the many sins that beset the parishioner. The mission of the church is to ’make disciples.’
It might be argued that as the consequences of a ‘guilty’ verdict under the church system does not result in imprisonment, it is not reasonable to call it a criminal law system. But this is to ignore the powers of deprivation of license, of livelihood, and reputation and good name which are consequences at least as excoriating as the deprivation of liberty, particularly where, in the case of loss of reputation and good name, this has occurred without fair process and without an effective right of appeal[7]. And this also ignores the devastating effect on people when the church ’turns on them’, and withdraws fellowship in a self-righteous, ‘holier-than-thou‘ judgmental manner.
The failures of the church hierarchy to deal appropriately in the past with complaints about, in particular, child sexual abuse at the hands of clergy and other employees such as choir directors, is now being visited upon the ordinary parishioner in a particularly unpleasant, unjust and un-Christian manner. Parishioners and their families are being pilloried and denied the pastoral care they would expect to be provided by the Christian organisation. While the church must provide a way in which to appropriately receive complaints against clergy, this must be seen firmly in the light of the church’s function.
What should the church do?
Refer all alleged criminal activity to the State authorities. Refer clergy misconduct to a properly constituted Tribunal for a hearing on the evidence. This leaves the church free to provide the pastoral care to the accuser and the accused, which at present is seen only in an expression of intention but rarely if ever carried out in practice.
[1] # Louise Greentree BA LLB LLM(Hons) ProfCertArb For more information and to read other articles about Anglican Church diocesan discipline legislation see the website www.anglicanfuture.com/louise To contact Louise email her on louise@greentreeaustralis.org
[2] There is reason to believe that the Director PSU has to bear some personal responsibility for the parish taking this extreme stance, having sent an unwise letter to the parish which contained ‘findings‘ he had made supporting a view that he had come to without proper consideration of the state of the evidence. It is certainly possible that the parish leadership have gone much further than he envisaged, but he is certainly powerless to reverse the damage that has been done to the family, which may yet manifest itself in life-long post-traumatic stress disorder similar to that suffered by those who have been abused. In fact the response of the parish constitutes child abuse in itself. In this case the diocese is laying down the grounds for court claims that may surface many years hence, after a child’s adult life and promise has been ruined.
[3] Innocent non-sexual actions have been entirely misinterpreted and misrepresented by a young woman who suffers from Obsessive-Compulsive Disorder, a disability that is notorious for producing fantasy sexual complaints against, in particular, clergy. However, and this case illustrates another problem: there is no power for anyone to force the complainant to undergo psychiatric assessment. Also see ‘A Cautionary Tale Unmasked’ on www.anglicanfuture.org/louise for a full discussion of this case. Also published on www.churchdispute.com
[4] Apart from the lack of sexual intention, and the sheer improbability of a ‘sexual predator’ doing these things in the presence of his wife and family, there is the fact that giving a child a hug has not in itself been evidence of sexual predator behaviour. If it has been, then the photograph on the internet of a lay leader in that parish hugging a nubile young girl to whom he is not related should also attract the operation of the church’s criminal code. If it is now, then the recent photo of the former Prime Minister John Howard hugging a teenaged student (male) at a school on the campaign trail, and kissing a young primary school girl should arouse anger and denunciation.
[5] Again, the diocesan PSU must bear some of the blame for this situation in failing first, to call for evidence to be produced, and, then, when it is not produced, to make a statement to that effect to the parish. The rector’s wife’s accusations are causing immense anguish to the accused and his family as he is not able to answer them because there is no evidence.
[6] In Clauses 23 and 24
[7] The ordinary parishioner’s appeal lies to an experienced lawyer appointed by the Archbishop.