Judging the Church: Legal Systems and Accountability for Clerical Sexual Abuse of Children

Abstract

This thesis considers lessons from different legal systems' approaches to holding Catholic dioceses accountable for child sexual abuse. Following a New Legal Realist approach, it provides an account of four legal systems operating within two social orders - the Diocese of Ballarat in Victoria, Australia, and the Diocese of Gallup in Arizona and New Mexico, in the United States. Using typologies of repressive, autonomous, and responsive law as frames, the thesis explores how overall character of legal systems is shaped by their multiple aspects. It provides insight and context for why law matters, and points to why reform efforts that focus on changing doctrine alone may not bring the kinds of results likely to satisfy advocates and survivors.

The thesis demonstrates how Catholic canon law and the common law of tort fail to account for the realities of the relationships between Church organisations and natural persons, and how these systems embed the interests of powerful institutions in multiple aspects of law. Canon law's overall character is found to be repressive, and tort law autonomous. The thesis then provides accounts of two other legal systems which are each described as quasi-responsive, even as neither is wholly responsive. Catholic dioceses in Chapter 11 bankruptcy in the United States demonstrate how a purposive approach to dispute resolution can empower victims when they have credible leverage to negotiate for their own interests. The Australian Royal Commission into Institutional Responses to Child Sexual Abuse demonstrates how an approach that reflects an informed and sophisticated understanding of victims, and concern for them and their interests, can provide vindication on substantive issues, even without the authority to directly impose consequences.

The thesis argues that truly responsive legal systems require: (1) embedded knowledge of social realities in multiple aspects of law, (2) a purposive approach, (3) procedural flexibility, (4) the deliberate and effective inclusion of impacted stakeholders in legal processes, and (5) a normative agenda of countering domination and accounting for social disparities that impact capacity to further litigant interests through legal proceedings. The thesis shows how bankruptcy and the Royal Commission each have some but not all of these attributes; enough that they can both be characterised as quasi-responsive law. True responsiveness, however, needs all of these attributes. The Royal Commission demonstrates that better legal responses to problems like clerical child sexual abuse are possible with a purposive approach dedicated to providing substantive justice and the capacity to make determinations of moral responsibility can be made even where there may be no legal responsibility. The decision-making process of bankruptcy provides an example of how legal systems can be procedurally flexible, less adversarial, and enable ostensibly weak parties with strong claims effective voice to parties. Determining the character of legal systems by considering their multiple aspects demonstrates that responsiveness is possible but unlikely be accomplished through piecemeal efforts to reform existing systems.