Grounds for Suspicion

There is nothing unbelievable about a Prince of the Church being a thoroughly corrupt criminal.

People who claim to be in direct communion with supernatural beings and and make a living from interceding with them on behalf of petitioners are widely regarded as dishonest or delusional. They used to be generally trusted and many still trust them. But many more don’t.

Being a Cardinal is now, in itself, grounds for suspicion. Perhaps also grounds for suspicion of a sense of invulnerability that might explain implausibly brazen attacks rather than the more usual furtiveness of corrupt criminals. Knowing that one is both untrustworthy and trusted could explain a lot.

But grounds for suspicion and grounds for conviction are quite different matters.

It is a crime under s316 of the NSW Crimes Act s where a person “knows or believes” that a serious crime has been committed, and fails, without a reasonable excuse, to inform the police.

An Archbishop convicted by a jury for failing to report child abuse under s316 was quite recently acquitted on appeal. The court held there was a reasonable doubt as to whether he believed the allegation.

There was no widespread dismay or enthusiasm about that Archbishop being charged and found guilty, nor at the subsequent acquittal.

That is because both the prosecution of the Archbishop and the appeal made sense and it is the normal function of courts for some jury convictions to be held unsafe on appeal.

But public reaction to the recent conviction of a Cardinal is much deeper and will not end with either result from the appeal.

What does not make sense is that there has been no regular flow of such cases, with both convictions and acquittals since the Royal Commission on Child Sexual Abuse documented the extent of deliberate concealment of abuse by institutions supposedly caring for children, especially by religious institutions and most notoriously by the Catholic Church.

The Cardinal’s case is viewed quite differently because he was not charged with an offence that actually made sense.

The Royal Commission recommended codification of an offence similar to that now in s49o of the Crimes Act Victoria. This provides 5 years imprisonment for “Failure by a person in authority to protect a child from a sexual offence”.

The offence requires a substantial risk existing, knowing of the risk, being in a position with power and responsibility to reduce or remove the risk and negligently failing to do so, that is, “falling short of the standard of care that a reasonable person would exercise in the circumstances.”

That seems a pretty good codification of the crimes that George Pell and his colleagues have been accused of but have not been charged with.

Does recent codification of the offence preclude charges based on crimes committed before the codification?

In what barbaric society has it ever not been a crime for people responsiible for taking care of children to neglect protecting them? Has the moral panic about child sexual abuse obliterated memory of the mandatory protection of children from harm in general that predates civilization and has nothing to do with either sex or police? “Little Children are Sacred”.

George Pell was convicted of raping two children because nobody from the Church he leads has been charged with notorious crimes of failing to protect children.

Retribution is an important element of criminal law enforcement quite separate from deterrence and rehabilitation. If you allow impunity for notorious crimes you can expect far worse than unsafe prosecutions on some pretext or other. Sacrifice of scapegoats may or may not catch a guilty scapegoat. But its most likely result is to satisfy the instinct for retribution while letting criminals escape justice.

Historically children complaining of abuse have often not been believed, not only by priests, and especially when the complaints are made decades after the event. That has made it necessary to relax rules of evidence regarding corroboration, tendency evidence and joint trials and to instruct juries that it is not uncommon for an adult to come forward with a complaint decades after the event and to be inconsistent about the details.

There was a history of police collaboration with authorities accused of child abuse, especially catholic police with church authorities. That had to be reversed by training police as well as social workers to side with and believe the accuser.

These changes are intended to increase the proportion of successful convictions and necessarily create a very real danger of wrongful convictions. There are good reasons for the opposite policies to be followed for most serious crimes. We prefer to risk guilty people being acquitted than innocent people being convicted.

The exception that has been made for child sexual abuse puts a heavy onus on prosecution authorities to determine whether a prosecution would be unsafe. They can make that decision more objectively at a distance. Police and social workers can still comfort and side with the victim despite the prosecutor’s decision not to put both accused and accuser through a trial that should, if it results in a conviction, ultimately be overturned as unsafe on appeal.

The alternative of putting every accusation before a jury that police trained to believe accusations find credible, would inevitably result in unsafe convictions.

No prosecution could be more manifestly unsafe than that of a rightly despised and reviled Prince of a Church whose leaders are widely known to have escaped trial for serious crimes of omission and concealment based on a single individual’s accusation about events two decades ago with no supporting evidence whatever.

George Pell could not give evidence himself because his credibility would have been ripped to shreds with questions about his behaviour in protecting the racket he works for instead of the children placed in their care. Putting him in the witness box would have presented the jury with an unsavoury character who deserves some sort of punishment for something.

The police actively solicited complaints against Pell. That is an understandable reaction to the impunity with which the Church he led has obstructed justice instead of rescuing children in their care from predators on their staff. The widespread enthusiasm and relief with which the verdict was greeted clearly reflects the same reaction. It has nothing to do with the specific charges and is openly proclaimed to be therapeutic for victims of the church generally. The coverage screams that it is sacrifice of a scapegoat.

I don’t agree that there was an atmosphere of hysteria that would have made a fair trial impossible.

It was quite possible that a jury could have concluded there was a reasonable doubt. A previous jury failed to agree. Perhaps that was what the prosecutors expected would happen. They just didn’t want to cop the blame for not locking up a creep like Pell themselves and preferred to leave it to a judge and jury who would be less likely to be accused of covering up.

Fear of such accusations would have had a real basis. Just look at the complaints from the Premier of Victoria and the likely next Prime Minister of Australia at the friends of Pell who showed “bad judgment” in standing by him with character references. It doesn’t take much courage for friends to not desert each other and it doesn’t take much courage for prosecutors to put up with accusations. But it takes utter shamelessness to parade one’s good judgment in shunning friends that are in trouble and demanding that others behave the same way.

I am no friend of George Pell, but I do know he should not be made a scapegoat just because the police wanted to look like they were doing something about the impunity and obstruction and the prosecution authorities didn’t want to be suspected of covering up church crimes. So do the shameless opportunists celebrating and denouncing.

So do Pell’s friends and referees. If he is eventually convicted of failing to protect children they may not agree but they won’t be able to convince themselves, let alone anybody else, that he was purely a scapegoat rather than legitmately accused and necessarily tried.

Pell’s conviction for raping children was manifestly unsafe because the prosecution was manifestly unsafe.

It is not enough for the conviction to be overturned and for genuine crimes of failure to protect to be tried. There are grounds for suspicion that there should also be another much more significant trial.

By offering a scapegoat the prosecutors were effectively avoiding difficult trials for real crimes. If that was done intentionally it was a direct attack on the rule of law by the authorities responsible for maintaining the rule of law. Whether it was done intentionally should be impartially investigated by an independent prosecutorial authority from another State, considering prosecution of the Victorian prosecutors for misconduct in public office.

Eventually a lot of people from a lot of institutions will need to be put on trial. For the Catholic church it is a world wide problem. Civil reparations throughout the world will require records from the Vatican and sale of the valuables in the Vatican. That first requires ending the pretence that it is an independent sovereign absolute monarchy as established by a treaty with the Italian fascist dictator Mussolini.

This Royal Commission quote from Pell looks to me like an admission of guilt for proceediings based on “command responsibility” and “criminal failure to take action to prevent foreseeable harm to children”. Many others would be joined in the same proceedings.

“If the truck driver picks up some lady and then molests her, I don’t think it’s appropriate, because it is contrary to the policy, for the ownership, the leadership of that company to be held responsible,” Cardinal Pell told the commission via video link from Rome.

Commission chair Justice Peter McClellan said priests got access to children with the parents’ consent, unlike truck drivers.

“The relationship between the priest and a child is quite different to that between the truck driver and the casual passenger, isn’t it?” he asked Cardinal Pell.

“Yes, I would certainly concede that,” Cardinal Pell responded.”

The “ownership, the leadership” of the flock may view their role as shepherds preparing their flock for fleecing the same way other corporate criminals do. But our society is less tolerant of failure to protect children from abuse than of the usual run of corporate crime such as bankers stealing from dead clients.

I am not a prosecutor so it isn’t up to me. But Victoria urgently needs competent prosecutors with integrity.

19 thoughts on “Grounds for Suspicion

  1. I think it would open a pandora’s box if Pell was charged with
    what he should have been charged with, the protection of pedophiles and their
    movement so they could re offend This would have involved the administration
    and meant the whole organisation would be called into question, leading to the vatican
    The government would not be able to handle the fall or dramatic decline in catholic education
    Hence restrict it to perpetrators and scapegoats


    • I think we should follow up on that. My article said, without elaboration:

      “Pell should be tried for what he is actually known to have done and failed to do.”

      No sign of it at Online Opinion yet. Barry, any news?

      Both civil and criminal proceedings on the failure to protect children in the care of various institutions should be feasible.

      The current scape goating is a normal response to difficult problems. Not necessarily consciously planned.

      If, as I expect, Pell is unanimously acquitted on appeal. That will open up an “interesting” can of worms.

      Reforms within capitalism are not my major interest but they are certainly possible and protection of children is a lot easier than
      separating other sorts of criminal behaviour by corporate executives from “normal” capitalist exploitation. eg Factory Acts started
      with regulation of child labor.

      The Royal Commission quote from Pell looks to me like an admission of guilt for proceediings based on “duty to rescue”:

      “During the hearing on Thursday, Cardinal Pell accepted the church has a moral obligation to victims, but when it comes to its legal responsibility, the actions of its priests are not necessarily its fault.

      “If the truck driver picks up some lady and then molests her, I don’t think it’s appropriate, because it is contrary to the policy, for the ownership, the leadership of that company to be held responsible,” Cardinal Pell told the commission via video link from Rome.

      Commission chair Justice Peter McClellan said priests got access to children with the parents’ consent, unlike truck drivers.

      “The relationship between the priest and a child is quite different to that between the truck driver and the casual passenger, isn’t it?” he asked Cardinal Pell.

      “Yes, I would certainly concede that,” Cardinal Pell responded.”

      Reparations from the various institutions should help cover costs of re-establishing secular education (and dealing with its
      smaller problems in protecting children).

      That should be especially easy for an institution that is not only legally “in loco parentis” by running schools but describes its staff as “fathers” more generally and is viewed that way by its clients.


      • Barry, Will think about Spike but not sure without looking at them first. Would first add to the article based on comments above.
        Can you check whether it is still in queue at OLO and whether can vary it first as above?


  2. Forgot to add. Also worth noting that the absurd legal status of the Vatican provided by Mussolini’s fascist regime is already under attack in this context. Lots of valuables there that will be needed for reparations.


  3. I also thought that a conviction needed more than just the testimony of the accuser but when I publicly stated as much a friend pointed out an article from the Guardian which said “But there was only one firsthand witness who gave evidence – the complainant. A large part of the prosecution’s case necessarily hinged on his testimony. This is not at all unusual in sexual abuse trials which are known as “word on word” cases.


    It used to be that the law could not give weight to a single complainant’s evidence unless there was also a witnesses who said the victim told them about the abuse at the time, or unless there was evidence showing the victim was distressed immediately after the attack. This may be why Richter made so much of the fact that the victim did not speak out until he was an adult.

    But courts have been frustrated by the lack of successful prosecutions against sex offenders and the unfairness to victims, so evidence requirements have changed. There is overwhelming evidence that shows many victims do not speak about their abuse until decades later. The vast majority of sexual assault cases now come down to the complainant’s word.”


    • Yes. I read that later too. Was aware there was no requirement for corrobotation as a result of specific problems with historical sex abuse cases but unaware that it had become so common. This obviously creates real danger of other manifestly unsafe prosecutions and verdicts.

      But I still assume the usual cases are in fact a lot more solidly based despite this and it is still the job of prosecutors not to prosecute when a verdict would be unsafe as in this case. If not there will not just be a real danger but an epidemic of such cases as with witchcraft trials.


    • Could not finish last nite 3am. Hopefully by tomorrow. Assume you will see it anyway but when original replaced I will add comment to this thread from which you should get email.

      Liked by 1 person

  4. Yes one wonders how long the Lateran Pact remains in pace, giving the Vatican its degree of protection from the outside world, & it’s laws. Mussolini and Pope Pius XI are long gone, time for this treaty to follow them.

    Closer to home less and less Australians identify with a religion. In the 1966 census 88% of Australians identified as Christians, down to 74% in 1991, and by 2016 it was 52%. Of the Christians the Catholic are the biggest grouping, as 22.6 of Australians identified with them. it;s worth noting the wealth of the Catholic Church in Australia si $30billion. Other religions like Hinduism and Islam have their adherents here, though the biggest growing group is no religion.

    In the 2011 census 22% of Australians identified with no religion, a figure that reached 30% by the 2016 census. This is an increase of around 2 million people.

    In light of all of this why do superstitious entities still find themselves exempt from paying tax?


  5. So far there are 3 comments at Online Opinion (all moronic):

    Two other related threads there, also mainly moronic:

    A general discussion now up to 39 pages:

    A thread on another article now at 10 pages:

    Both seem to be fading away from an excess of morons so I hope they don’t notice the new one.

    In the unlikely even discussion of my article there attracts some comments worth responding to I would prefer to not reply there where any discussion would be drowned out by morons.

    Barry, If I respond with a second article here would you post in their comments to notify them of it?

    (You might not want to as that could involve having to cope with morons turning up here).

    I may also get annoyed enough to add some comments in this thread, analysing the problem of morons.

    There’s also an Essendon football club forum thread with nearly 2000 posts since 2016.

    Tom recently reposted my article there and got a couple of bewildred responses:

    Its drowned out by all the noise. I looked at the first 100+ posts which were discussing whether Pell was guilty of covering up. It is at a DRAMATICALLY higher level than the recent posts now. Now that he is a “convicted pedophile” they just rant.

    The football club is much closer to “the masses” than the cliques of regular commentors at Online Opinion. Depressingly low level of discussion but VASTLY higher level than OLO.


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