MELBOURNE’S Catholic archbishop, Denis Hart, is not known to enjoy a fight. He has a reputation as a conciliatory man who would rather talk you into accepting that line in the sand than dare you to step over it. But Hart now finds himself defending a line against a most unlikely adversary: the Vatican.

Hart is not alone. A great divide has developed between Australia’s Catholic bishops and Rome over the bishops’ attempts to deal with priests who have been accused of sexual abuse. The Australians believe any priest or other Catholic employee who poses an “unacceptable risk” to others should be removed as quickly as possible. Canon law, as interpreted by Rome, demands a slower, more certain and, many would argue, less effective approach.

The result is a stand-off. The debate is polite; verbally, due deference is paid to Rome’s authority by those determined to defy it. But defy it they will.

Hart said this week, “I don’t stand back from doing what I need to do.” In two legal rulings this year, Rome has challenged the validity of Australian systems for removing priests accused of sexual abuse. In the latest case, three priests accused of sexual abuse have successfully appealed to the Vatican about the way their cases were handled by the Melbourne archdiocese under a system set up by Hart’s predecessor, Dr George Pell, in 1996.

This follows a ruling in February that undermined the national system for dealing with such cases; the Vatican ordered the reinstatement of a Wollongong priest whose criminal conviction for molesting a former altar boy was overturned on appeal.

Has a creaking Roman bureaucracy pulled the rug from under Australia’s church leaders, weakening their power to weed out predators? Or could it be that Rome has a point; in the rush to protect victims and contain a public-relations disaster, has the Australian church failed to safeguard the rights of accused priests?

The rulings on the Melbourne cases, by the Church’s Congregation for the Clergy, overturned Pell’s decisions to remove the three priests and deny them the right to publicly administer the sacraments, which include holy communion, baptism and confession.

Pell’s decrees on the matter were found to be “null and void and without juridical effect because of serious flaws de procedendo”; that is, Pell’s decisions were invalid because the procedures of the investigation on which his decision was based did
not conform to church law (canon law).

Hart insists that the cases will not be revisited and the priests will not be reinstated. He says Rome’s ruling did not challenge the facts but merely expressed concerns about the process that assessed them. “Basically, they have indicated that the slower and more detailed process of church law hasn’t been followed,” he says.”

The normal provisions of church law are that there’s got to be a first warning, and then a period of time, and then a second warning, and then gradual restriction. Well, the judgment was made here in Melbourne that this is such a serious matter, we have got a public responsibility not to allow the possibility of reoffence, and therefore a decision was made much more quickly.” So the Vatican has made a bad call on this one? “No. I don’t believe the Vatican has made a bad call. I believe that the Vatican is pointing out to us the requirements and graduality of the process.” Hart acknowledges that a system of warnings is particularly unsuitable for cases that involve claims of sexual abuse of children: “Seriously, I cannot, as an archbishop, condone in any way any harm of children by church personnel or anyone else. That’s why I totally endorse the steps taken by Archbishop Pell since 1996.” He would not stand back from removing priests in such cases “because I cannot have it on my conscience”.

And, as a line manager in a prominent organisation, he must know that any other approach would be catastrophic for the church’s good name. In Australia and overseas, the church is struggling to regain its standing following scalding media coverage of allegations of widespread sexual abuse. There is public outrage not only at the abuse itself, and the fact that it was committed by people who were trusted as godly, but at stories of church authorities failing to respond to it or covering it up.

The national system for dealing with clerical abuse, Towards Healing, was finally set up in 1996 after damaging publicity about perverted priests emerged from a royal commission into police corruption in New South Wales. It is used in every diocese in Australia except Melbourne, which uses the Pell system, and by all religious orders except the Jesuits.

Now Towards Healing has challenged the Vatican’s Congregation for the Clergy. Bishops have appealed to a higher Roman forum, the Signatura, against the congregation’s ruling that the Wollongong priest must be reinstated.

Meanwhile, Australian church leaders will continue to remove offenders, says Sister Angela Ryan, executive officer for Towards Healing’s national committee. “I think there’s a situation where the people in the church in Australia are doing what they believe is right,” she says.

More challenges to Australia’s processes might be under way. Asked whether other disgraced priests have appeals to Rome pending, Ryan declined to answer.

The current impasse is distressing for both complainants and alleged offenders. Chris MacIsaac is president of Broken Rites, a support group for people abused within church communities. She says: “It just clearly indicates that the Vatican doesn’t take sexual abuse seriously. That’s the bottom line.” FATHER MICHAEL SHADBOLT, spokesman for the Catholic Priests Anti-Defamation League, believes the commission has generally worked very well but has concerns about whether the process is always fair to priests. Shadbolt says one of the three priests concerned has not been convicted in a court of law or charged by police; the only mark against him was the tribunal’s verdict, and “he was subsequently subjected to extremely hostile press coverage largely based
on that questionable verdict”.”

This is a totally unsatisfactory condition for everyone concerned. The victim can rightly claim he has been robbed of justice. But the priest can also claim that he has received anything but a just trial,” Shadbolt says.

Since it was set up in 1996, the Independent Commission into Sexual Abuse, run by QC Peter O’Callaghan on behalf of the archdiocese, has dealt with 22 offenders and 115 complainants.

O’Callaghan investigates the facts, much like a royal commissioner, and comes to a verdict. The archbishop then decides whether to act against the priest. “Any priest who has received a prison sentence or who has been found guilty by a civil court will never work again as a priest,” Hart says. In most commission cases, the same rule would apply.

The commission has jurisdiction over the 334 priests of the Melbourne archdiocese only.

Priests from other parts of Victoria, or who belong to orders rather than the diocese, would face the Towards Healing process.

Hart says six of the 22 Melbourne offenders have been jailed by criminal courts and three have received suspended sentences. Five have died. All 115 complainants have received compensation from the church, with payouts averaging $25,000. Altogether about $3 million has been paid in compensation and it has cost the archdiocese another $1.5 million to run Carelink, a counselling service for victims.

A national picture is harder to get. The Catholic church is not a monolithic organisation with a central control but a collection of loosely aligned fiefdoms. Ryan says Towards Healing does not keep national figures because each case is handled independently by a bishop or the provincial of an order and settlements are confidential.

But she estimates that there have been more than 100 Victorian cases outside the Melbourne system, and several hundred nationally. Most of the early complaints involved the sexual abuse of children but there are now also allegations of adult “boundary violations”, such as a priest having sexual contact with a parishioner, she says.

Broken Rites says that at least 43 Catholic priests and 27 brothers have been sentenced in Australian courts for sexual crimes since 1993.

According to MacIsaac, “It’s the tip of the iceberg.

Thousands of people have made complaints to us about sexual abuse nationally.” Unless they voluntarily leave the priesthood, priests are never off the church’s books. Those suspended for offending in Melbourne are still fed, clothed and housed by the archdiocese, says Hart, “because a bishop has a responsibility in charity to support all his priests”. Offenders live privately, “and we normally insist that they live somewhere away from schools or children, if that has been their particular difficulty”.

MacIsaac says victims usually find the Melbourne system fair, but she believes it does not compensate victims adequately (payouts are capped at $55,000). Many people who were abused as children have broken lives: “They’ve not been able to work because of substance abuse or their state of mind is such that they are very limited. Often they have lost an education.

They have lost an enormous amount.”
She says a Queensland girl recently won $800,000 in a court case over abuse by a non-Catholic minister.

She is more concerned about Towards Healing, which she says performs well or badly depending on the individual church authority dealing with the case. Ryan acknowledges that there were initial difficulties but says many of these have now been overcome.

Canon lawyer Tony Kerin says the church’s response to the problem of sexual abuse is not yet perfect, “but they’re getting better at it because of experience. It’s like a magistrate in his first year on the bench; after a while he acquires a wisdom about cases.”
Shadbolt says the church should update canon law to ensure that processes are legal and effective. Rome is committed to addressing sexual abuse, Hart says, and he will not appeal the Melbourne rulings because talks with Rome are continuing.

Wider questions remain. The bishops who set up Toward Healing also promised a review to examine whether there were aspects of Catholic culture that had contributed to abuse. Ryan says one issue is celibacy, but she points out, “Sexual abuse takes place in families, in society, so it’s certainly not totally related to celibacy.

“I suppose at the root of the questions we are looking at is what are the reasons that brought people to the priesthood or religious life, and does the trust that was placed in these people give them privileged access to an availability of people?

“At another level, you have got a real question about the ability to talk about sexuality in society 30 to 40 years ago, which is when a lot of these people were trained in the spirit of the times and with the taboos of the times.”

When it comes to trial and punishment, it seems that the Australian church will continue to go its own way while it waits for Rome to catch up with this particular dilemma of the modern world.

Hart plans to proceed with care. “I think I have to show more respect for what the church asks of me and the way I go about it. I will continue the discussion. But the church acknowledges that bishops have serious responsibilities and some of them are not always written down.”

First published in The Age.