In a major win for those who were sexually assaulted by clergy as children, as well as for their loved-ones, the Supreme Court of Victoria has ruled that the father of a deceased former choirboy who reported having been sexually assaulted by George Pell some twenty years ago can sue the Cardinal and the Church for damages.
The former choirboy died more than eight years ago from a heroin overdose, which his father believes was caused by the devasting psychological effect of the sexual assaults.
Catholic Church can now be sued
Changes to the law in Victoria and New South Wales which came about pursuant to recommendations by The Royal Commission into Institutional Responses to Child Sexual Abuse saw the abolition of a rule – known as the ‘Ellis Defence’ – which had prevented victims from suing unincorporated organisations such as Churches.
Catholic Church defends lawsuit, arguing a legal loophole
But far from accepting the change, let alone legal responsibility for abuses perpetrated by its clergy, the Catholic Church has as usual gone on the offensive and argued a legal loophole – that the boy’s father cannot take proceedings as he is not the alleged primary victim – in a bid to have the suit quashed.
Church fails, civil case can continue
The Church’s move was unsuccessful on this occasion, with Justice Michael McDonald finding that those other than primary victims can commence legal proceedings for damages caused by the conduct of unincorporated organisations such as Churches.
His Honour remarked, “the application of the Act [which abolishes the Ellis Defence]… is not confined to claims founded on or arising from child abuse of the plaintiff”; in other words, that family members separately sue for damages.
The Judge added, “The use of the phrase ‘arising from’ puts the matter beyond doubt.”
His Honour also cited the legislation’s second reading speech which referenced claims by Chrissie and Anthony Foster, who sued the Church for damages arising from the alleged sexual abuse of their daughters – a reference that makes clear that the intention of the legislation was to permit such actions.
Vicarious harm
The father claims he suffered “nervous shock” after learning of his son allegedly being sexually abused by George Pell.
In terms of Australian law relating to personal injury claims, nervous shock is mental illness or injury inflicted upon a person by intentional or negligent actions or omissions of another.
Court to pay legal costs of the pre-trial application
Justice McDonald ordered the Catholic Church to pay the choirboy’s father’s legal costs in respect of interlocutory (pre-hearing) application to strike out the claim.
His Honour did not make orders against George Pell in relation to the application, as the Cardinal played “no active role” in it.
Decision relates to jurisdiction, not merits of claim
The decision in the Supreme Court means that the case can now proceed – it does not mean that any ruling has been made about the merits of the entire claim.
But it is a considerable win for other family members of alleged victims to launch legal action against the church if required – some victims may have already taken their own lives or may not be capable of going through a court process.
Many studies have documented correlations between childhood sexual assault and adverse psychological and social outcomes such as increased depression, anxiety disorders, antisocial behaviour, substance abuse, eating disorders, suicidal behaviour, and post-traumatic stress disorder
Will Cardinal Pell return to Australia?
It’s not clear when the case will proceed, or whether Cardinal George Pell will be required to return to Australia to face court.
He has always maintained his innocence against the child sexual abuse allegations that have been levelled at him. Although he was found guilty of a number of offences and sentenced to 6 years in prison in March 2019, his conviction was overturned in April 2020.
He is currently living overseas and has written a book about his time in jail – he spent about 13 months in solitary confinement in Barwon Prison outside Melbourne.
The Catholic Church – for all of its wealth —has been under intense criticism for some time for initiating counter-legal action against many of the child sexual abuse compensation claims that have been or are currently being made against the Church, which delays the process for victims seeking redress.
The Royal Commission recorded more than 4,444 allegations of abuse against 1,800 Catholic Church figures in Australia alone.