Protocols & Tribunals
The Catholic Church has taken a positive lead in South Africa not only in putting in place a Protocol for dealing with cases of sexual offences by Church personnel, but by placing it on the website of the Southern African Conference of Catholic Bishops, thus ensuring it is freely available to the public. We would welcome news of other similar protocols which may have been formulated in other denominations and which are freely available to the public. (Contact Us)
Purpose and use of protocols
However, serious debate needs to be raised about the purpose
and use of
such internal protocols in serious criminal matters such as child sex
abuse, rape or sexual assault.
The Catholic hierarchy has stated that their protocol is not intended
to be a substitute for the criminal justice process but is an
administrative matter. Yet how many survivors report abuse to religious
leaders in order to aid administration – they are far more
likely to do so in order to find some kind of justice within their
faith communities.
It is one thing for religious authorities to conduct internal
disciplinary hearings in cases of breaches of professional behaviour
that are not criminal matters. It is quite another for them to set
themselves up as investigators and judges in serious criminal matters
as rape, sexual assault or child sex abuse. Religious
authorities do not have the investigative powers of the police
– particularly when forensic evidence is often crucial to the
judgment in cases of rape or sexual assault.
Religious authorities run a serious risk of being wrong in their
judgment of a case. Both the complainant and the accused are likely to
be profoundly affected by the Church’s findings and
decisions. If religious authorities wrongly judge someone to be guilty,
not only is this devastating for the accused, but they may lay
themselves open to charges of libel.
Conversely, leaving a guilty man or woman free to continue his or her
dangerous criminal behaviour can be devastating for survivors and place
others at serious risk. The media coverage of the shocking cover-ups by
the Catholic hierarchy in American and elsewhere bear ample testimony
to the tragic, far-reaching consequences of allowing guilty priests to
go free.
Legal obligation to report child sex abuse
The Childrens Act of 2007 lists all religious
leaders as
‘mandated reporters’. This means that ALL cases of
suspected child abuse MUST be reported by religious leaders to the
criminal justice system. (Legal
Acts)
If Protocols allow for internal hearings and tribunals BEFORE or
CONCURRENTLY WITH the criminal justice process, they may do
immeasurable harm, intimidating witnesses, tainting evidence and so
subverting the process of justice.
Questioning children
Any religious leader or protocol committee
representative who
conducts even a preliminary questioning of the child may destroy that
child’s case in the criminal court. Questioning of children
about suspected abuse is a highly specialized skill. One wrongly worded
question, any hint that the child is not believed, can shut up a child
completely. In a few recent cases the children have been so traumatized
by being questioned by church officials that they have refused to go
through the criminal justice process.
To run an internal hearing AFTER the criminal trial has been concluded
is also highly debatable if it means putting the child through the
traumatic process of being questioned yet again. What purpose does this
serve, and what about the best interests of the survivor?
Support for adults
Adults who have been raped or sexually abused by clergy are
not legally
obliged to lay charges if they don’t want to. Many look to
their religious authorities for help and may go through an internal
church hearing. Yet the track record to date has been notoriously bad.
The dynamics of sexual abuse by clergy are very similar to those of
sexual abuse within families. Internationally, survivors have
met with a closing of ranks, the needs of survivors taking second place
to concerns about reputation of the church or religious community,
protection of fellow clergy, and other vested interests. Such internal
processes can constitute secondary abuse, compounding the suffering of
survivors.
If religious authorities are serious about justice for survivors they
should encourage adult complainants to lay charges and direct them to
organizations that can offer them counselling and court support
services. (see Links).
The role of churches in combating sexual violence
The Churches have the potential to play a major role in
binding up the
wounds of survivors, and in helping to end the evil of sexual violence,
which is endemic in South Africa. It is estimated that probably 80% or
more of cases of sexual violence are never disclosed, and even when
charges are laid, the conviction rate is notoriously low. The newly
passed, amended Children’s Act and sexual offences bills
seeks to improve the lot of survivors and to ensure the criminal
justice process becomes more effective- but it needs the concerted
effort from all sectors of society to help make sure the system works
as it should.
It is possible that internal protocols and tribunals can serve as a
catchnet when the courts do not find enough evidence ‘beyond
all reasonable doubt’ to convict a clergy person of
rape or sexual assault, but religious authorities have good reason to
believe that the behaviour of the accused was seriously unethical,
immoral and unprofessional. But even then, partiality remains
a problem. Perhaps tribunal processes would be improved could
work in non-criminal cases if the tribunals are made up of people
totally outside that religious faith.