Guilty Until Proven Innocent
By Nuala O'Loan
The Furrow
October 1999

The recent trial of Nora Wall and Paul McCabe reflects the current lack of balance in dealing with allegations of child sexual abuse, a lack of balance which seems to permeate the process from the moment that an allegation is made. Over recent years we have seen the very public demonstration of failure by the Irish director of Public Prosecution's Office to perform its duties properly; the apparent assumption by society that any allegation of sexual abuse is probably true, and what could be described as a consequential witch hunt against priests and religious.  It is now time for all involved to consider seriously their responsibilities when faced with such an allegation. This article will attempt to analyze some of the problems arising in these cases.

In cases involving alleged child sexual abuse the common presumption appears to be one of guilt, that the allegation is true. However, it is clear that there are situations in which allegations are made for reasons other than that the facts alleged actually occurred. False memory syndrome, mental illness and a desire to claim compensation may all be factors in the alleged victim's decision to report that they were abused. In some cases, such as the case of illness, where the allegation is falsely made, the victim is clearly not responsible for what happens to the alleged perpetrator.

In all cases, however, a report of sexual abuse will be the beginning of a process of lengthy investigation. On occasion this investigation will result in a true admission of guilt. In other cases alleged perpetrators will be persuaded to plead guilty to lesser charges, even though he or she may in fact not be so guilty. A plea of guilty to a lesser charge will, however, reduce the prospect of a long drawn out criminal investigation and trial, a prospect which may be intolerable to the alleged offender. For religious and priests there may be no finding of guilt, no trial because the police can find no evidence, but the Church authorities may react by putting them into an indefinite limbo, a distant monastery or religious institution, where they can be isolated. This can be perceived by those authorities as the only 'safe' thing to do. An alternative solution in these circumstances may be to force the individual to go for assessment, and possibly even therapy, to a center for the treatment of child abusers.  Denial by the alleged abusers may be construed as further evidence of guilt. It has been said that almost all abusers initially deny their crime.  This is true, but it does not follow that all those who deny the crime are therefore abusers.

All those who deal with children run the risk that an allegation of sexual abuse may be made against them. It is quite clearly the case that teachers, priests, nuns, social workers, etc. have all been subjected to such allegations which transpired to be unfounded. In the event of an allegation of sexual abuse the individual against whom the allegation is made will, in most cases, be removed immediately from their job, so as to protect the child with whom they might come into contact. Some of these individuals will be able to cope with the initial period of investigation, going away to do a course, or take a sabbatical for example. For most, however, the suspension from employment will immediately cause questioning. Teachers, priests, nuns and social workers do not suddenly take indeterminate leave. When suspension occurs, assumptions will be made, and in the current atmosphere the assumptions will almost invariably be that something has happened - 'no smoke without fire'. The consequences of this can be devastating. Families become the subject of antagonism and hostility; threatening phone calls can be received; people can be 'ordered' to leave their homes; their children can be threatened, mocked and attacked; society can adopt the 'cold shoulder' leaving the alleged perpetrator and their families isolated and afraid. Even the Church can become distant - afraid to become involved, perhaps because the alleged perpetrator is a teacher or social worker in a Church institution, or is a priest or religious. In such circumstances there is evidence of muddled thinking and panic reactions which cause the Church to fail to care for anyone properly. There is also a corresponding societal failure, in that people seem to assume guilt and react accordingly, notwithstanding that the allegations have been neither investigated nor proved. The reasons for such responses are clear - we quite simply do not know how to react or how to conduct ourselves as a society in such circumstances. We have not taken time to consider, coolly, such circumstances. We have not taken time to consider, coolly, rationally, the nature of our obligation in such situations. We must do so.

A just response to an allegation
This article will not deal with the situation under the civil law. It will, however, examine current thinking on how the Church provides for alleged offenders, and will state the basic principles of natural law which should, but clearly do not, inform the process.

It is clear that the Church has failed in the past in its duty to those under its care, both children and alleged perpetrators. It has now over-reacted in its attempts to undo the wrong caused by its refusal to accept that children could be abused, and hence the lack of that balance which is necessary to secure a just result in the event of an allegation of sexual abuse. How then should it behave and what should the parameters of any action be? Given what natural law, as it has evolved into human rights law, has to say. The fact that those who are accused also have rights, and the nature of those rights, have been clearly spelt out in documents such as the European Convention on Human Rights. What are those rights? They include:
. The right to be told in a language which they understand of any charge against them.
. The right, if deprived to liberty, to trial within a reasonable period having regard to the deprivation of liberty.
. The right in any event of trial within a reasonable period.
. The right to be presumed innocent until proved guilty.
. The right to adequate time and facilities for the preparation of a defense.
. The right to defend himself.
. The right to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

These must be regarded as the rights fundamental to the conduct of any process of investigation where there is any allegation of wrongdoing. The Church, in its document, "Framework for a Response to Allegations of Clerical Sexual Abuse," (the Green Book) has agreed to a set of principles to govern the handling of allegations of clerical sexual abuse. However, those principles are limited, and the signatories to this document were supposed to produce further documentation developing procedures for the conduct of such matters. There is, however, little evidence that the Church in Ireland has moved far beyond the stage of wringing its hands and adopting an inquisition type of approach to those accused over whom it had jurisdiction. The Northern Dioceses have adopted guidelines for dealing with the reporting stage, but there remains a lack of transparency about even this stage of the process. So what actually happens in such circumstances? I will now examine each basic right in the light of my understanding of current practice.

To be told of charge
There is clear evidence of initial reluctance by Church authorities to convey to an alleged abuser the nature of the charges made, or the identity of the alleged victim. Very often the first contact is still simply a summons to see a senior official followed by an immediate request or order that the alleged offender leave his post. The alleged offender is left shocked and bewildered, not knowing what it is that he is supposed to have done, or where he should go, or how he should conduct himself in the immediate future. Although in cases involving priests and religious an advisor should be agreed upon immediately under the Green Book procedures this is frequently not done. At the present time there are in Ireland a number of men who have been under suspicion and out of action for years, yet still have no advisor to assist them through the initial shock and subsequent labyrinth of civil and canon law process. It is clear that it is essential that an alleged offender is told what is supposed to have occurred, is told where and when the offence is alleged to have occurred, and is told whether the police have been informed. Where such information is conveyed it must be  done in a sensitive way, and the presence of an advisor may assist the alleged offender who may well be unable to remember what is said to him. His immediate material needs must be provided for.

Within a reasonable period
A difficulty arises for Church authorities in situations in which a person denies the allegations made against him, or where allegations are made but the complainant is unwilling to go to the police and to pursue the allegations through the criminal courts. In such circumstances the solution is very often to send the alleged perpetrator as far as possible from the scene of the alleged crime. Faced with a statement of complaint but no additional evidence from a complainant the Church authorities are limited in their ability to investigate. Canon law provides in general terms for such situations, but the mere fact that it is so rarely used is an admission that Canon Law is unwieldy and ineffective as a process. It could be argued that it is not adequate, and that extensive revision of Canon Law process is required. Until such revision occurs the Church authorities will have to grasp the nettle and do something about these cases. The practice of banishing men and women to monasteries, seminaries and such places, and of isolating them indefinitely is morally wrong.

There are a number of men currently living in such circumstances here in Ireland. Because of the particular circumstances there may be a feeling that proper investigation is either impossible or that it would be very difficult. There also seems to be a belief that the mere fact that an allegation has been made means that Church authorities must do something, even in the absence of any corroborating evidence. Removing the alleged offender from circulation is perceived as a solution to the problem. Such action may commend itself to the authorities, but what does it do to the person against whom an unsubstantiated complaint has been made, and who is innocent of the charge?

Where a man is removed from circulation in this way, he is indeed left in limbo. He cannot force an investigation. Investigation may be impossible because of the facts, and the reluctance of a single accuser to co-operate with an investigation. As time passes, it will inevitably become more difficult. Many of these allegations refer to events which are said to have occurred twenty or thirty years ago. Potential witnesses will die before they can be found and questioned; memories will fail; physical evidence which may be vital, such as the layout of a building in which abuse is said to have occurred, may disappear as the building is altered during renovation. Where a man is 'put away' for an indefinite period all these difficulties will be compounded. The opportunity to refute charges may be lost as a consequence of inaction by the Church authorities.

It is undoubtedly true that by failing to investigate and to deal with the matter, by adopting the solution of sending someone into effective isolation for an indeterminate period, the Church authorities are depriving such an individual of the right to fair trial. Such action is inconsistent with basic principles of natural law.

Innocent until proved guilty
When the State conducts an investigation, however flawed the investigative process may be, the individual accused of sexual abuse will in most professions be temporarily suspended from his post. It is accepted that this is necessary for a variety of reasons, mainly concerning the protection of children. State investigation will almost inevitably be very lengthy, and the individual will suffer enormously during the period of investigation. His self-confidence will very often be seriously eroded, his relationships with his family and friends will be tested, and may be irretrievably damaged. His relationship with God will be affected. The State will however conduct an investigation and unless or until such time as guilt is proved he will be assumed to be innocent. Where the investigation is completed and the conclusion is that the allegation is unfounded and that there will be no criminal proceedings then he will emerge from the process as an innocent man.

If the accused person has a professional job, such as a doctor or lawyer, he may face professional disciplinary proceedings. These will normally occur after the criminal investigation. They may result in a finding of professional misconduct, disciplinary action may be taken by the profession, including expulsion from the profession. If no disciplinary action is taken, or there is no finding of professional misconduct, disciplinary action may be taken by the profession, including expulsion from the profession. If no disciplinary action is taken, or there is no finding of professional misconduct, the individual is free to resume his life. He may find it extremely difficult to do so. However a fresh start should be possible. This does not seem to be the case where allegations are made against the clergy or a religious and are not pursued to a resolution.

It seems to be the case that there is a reasoning process which assumes that where an allegation has been made then the Church cannot permit itself to act as if the individual complained against is innocent. Why should this be? Why should the Church assume that it must act as if there were some guilt even where its only evidence is an uncorroborated statement? One of the problems is that there are no clear procedures such as most professions have for investigating such issues. There remains a context of secrecy, which dominates the thinking of those concerned. It can involve a misconceived attempt to protect the individual complained about by simply and quietly putting him out of harm's way. It may also be the consequence of the understanding that the clergy and religious are in a position of trust, and that the alleged breach of such trust makes the alleged offence more reprehensible. At the end of the day, however, until the allegation is proved, it must remain merely an allegation. It is an allegation which must be investigated with all the thoroughness possible, and an allegation which the Church authorities must accept may be true, nonetheless it is only an allegation. The church must ensure that in all its dealings it does all it can to protect the reputation and well-being of any individual against whom a complaint is made. It must in its actions demonstrate its belief in the individual's innocence unless and until such time as guilt is proved.

The right to adequate time and facilities for the preparation of a defense
An allegation of sexual abuse will come as an enormous shock to an individual. In its proceedings the Church must ensure that there is a process which permits the individual against whom the complaint had been made to examine the allegations made against him. He must also have the facility to communicate with his advisors, and to seek witnesses and consider his defense. This will all take time. It is not acceptable to give someone forty-eight hours to answer a charge. Yet this has been done. It must be understood that in forty-eight hours the innocent victim of a false allegation will probably be suffering from the traumatic effects of shock and will not be in a position to answer charges, or to defend himself. The absence of adequate time and facilities for the preparation of a defense may lead to the situation in which someone 'admits' an allegation because they misunderstand what has been said to them, what it is they are accused of.

The right to defend himself
Inherent in the right to defend himself is the right to a process during which he can defend himself. Failure to investigate and the taking of action to 'banish' the alleged offender will deprive the alleged offender of the right to defend himself.  Moreover the right to defend himself will of necessity involve access to documentation. In a criminal trial, defense is entitled to discover (production to the court) all relevant material. There may be arguments about what may be discoverable except that which is privileged. In UK Law privilege (the protection against a requirement to disclose information) attaches only to communications between lawyer and client or where the following conditions are satisfied:
. The communication must originate in a confidence that it will not be disclosed.
. The element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between parties.
. The relationship must be one that in the opinion of the community must be sedulously fostered
. The injury that would inure to the relationship by the disclosure of the information must be greater than the benefit gained through the correct disposal of the litigation - i.e. by disclosure.

Privilege in respect of penitential communications is available in some countries such as parts of the Commonwealth or under some rules of American Law. Such privilege does not attach automatically to sacramental confessions made in the UK. However, it seems to be accepted that a court would not normally seek to force a priest to disclose that which he had heard in confession, and Canon Law would preclude him from complying with such an order if it were made. In Ireland  in the case of Mary Johnston v Church of Scientology Mission of Dublin Ltd. Et al, Mt Justice Goeghegan sitting in the High Court on 30 April 1999 acknowledged that there was probably an unwaivable privilege attaching in Irish common law to the seal of the confessional. Privilege would only exist in limited other circumstances under similar rules to those applicable in the United Kingdom.

It will be important that the Church applies rules which are at least as beneficial as those applicable under the criminal law. This will mean that in cases of alleged sexual abuse where there are to be no criminal proceedings, the individual against whom the complaint is made will need to know.
. The content of the allegation.
. The person or persons to whom the disclosure was made.
. Whether any notes had been made of such disclosure
. The content of any such notes
. Whether any other relevant documentation was disclosed in the notes
. Whether there was consistency between the story as told where there has been more than one incident of disclosure.

Such information will be vital to a person seeking to refute an allegation.

Where there is more than one complainant it will be necessary to know the relationship, if any, between the complainants and to know whether the possibility of fabrication and collusion exists. Fabrication and collusion are not unknown particularly where the incentive of compensation exists. Information as to all the details of the allegation is therefore vital.

The right to examine…witnesses on his behalf…witnesses against him
Critical to any possibility of defending oneself is the ability to challenge those who make claims against one. Such challenge and examination may have to be done by someone else but it is vital. Inherent in any process under which allegations of sexual abuse are dealt with must be the opportunity to conduct such examination. If an individual is merely consigned to " limbo" as described above he will not have the opportunity to refute the charges. Challenge to witnesses in court often results in the discrediting of the story or the witness. The mere fact that someone makes an allegation of sexual abuse does not mean that they should be protected from any investigation of that complaint. Investigation should be sensitive but robust. Traumatized victims must be reasonably protected against further trauma through the investigation of complaints, but that protection must not be at the cost of an examination of the truth of what is alleged.

Misuse of power under Canon Law
The relationship of a priest to his bishop is based on Canon Law: that of a religious to his superior is based on Canon Law and any relevant Constitution of the Order. Inherent in such a relationship is the promise of as it may be vow, or obedience. A secular priest promises to obey a bishop. A religious priest may take a vow of obedience, which requires him to obey all orders which are lawful. Different religious orders have different interpretations of the nature, concept, and application of "obedience." Members of religious congregations are not always clear about the nature of the promise or vow of obedience although it may be argued that this is dealt with in formation and training and that its application should be quite clear.

One of the unfortunate realities of religious life in Ireland is that it is not always clear. In addition to this there are individuals who firmly believe that failure to comply with a command from a superior is a breach of this requirement of obedience, condemning the sinner to hell if he dies unrepentant and unabsolved. The concept of obedience therefore has inherent in it considerable power over the priest or religious. The surrender of one's freedom in this way is part of the religious life, a sacrifice freely undertaken. However the power to dictate another's life must be regarded as a sacred power, and it should be exercised properly. It should never be used simply to secure compliance with a particular course of action.

When allegations of clerical sexual abuse have been made, there have been instances in which the power derived from the promise or vow of obedience has been used inappropriately. It is inappropriate to send a man or woman into "limbo," to conduct no investigation which reaches a conclusion, and impose conditions which:
. permit contact only with  immediate family and lawyers
. do not allow him or her to function as part of a community in terms of spiritual life of that community.
. permit no unaccompanied trips outside the home
. require the person to submit to assessment and treatment before any consideration will be given to function in any way.
In the absence of investigation such treatment is not merely inappropriate. It is unchristian.

Recourse to Canon Law
It will be argued that the individual against whom a complaint is made has recourse to Canon Law. This is not what happens in reality. Where a superior takes action short of issuing a Precept of Obedience under Canon Law the individual has no real right to challenge the superior's action. Effectively he is also in legal limbo - his rights in Canon Law are activated by the institution of a canonical process against him or by him. In the absence of such process he is merely operating under his promise or vow of obedience, and it is unlikely that he would be able to challenge an order. He has no recourse to civil law because civil law regards him as a free agent. He has been convicted of no crime. He is not in an employment relationship with his bishop or order and in the eyes of  the civil law he could simply walk away from the situation. Nobody is holding him against his will. He has therefore no right to challenge under civil law. Yet he is held by the fact of his ordination or profession. This is his life and he does not want to walk away from it.

The command to go for assessment and treatment
The issue of assessment and treatment is a very difficult one. A requirement of assessment and treatment is regarded by many superiors as appropriate where an allegation of sexual abuse has been made. There is not inconsiderable literature now on the nature of assessment and treatment of sexual abusers. However, the process is regarded by many as still being in its infancy and clearly some of the mechanisms used to determine whether a person has pedophiliac and other deviant tendencies have been very crude and there remain questions about the whole process. Different treatment centres adopt different strategies. Some claim very high success rates. Others operate on principles similar to those of Alcoholics Anonymous - that there is no cure, only recognition and abstention. All seem to operate on the basis that an offender will deny his guilt. This may be true but an innocent man will also deny his guilt, as did Archbishop Ward and Cardinal Bernardin.

There are very few centers to which people can go for assessment. Such centers may well also offer treatment. Indeed they may recommend treatment at the assessment center. In such circumstances where treatment is available only at a high cost they clearly have a financial interest in the consequences of their assessment. Most treatment is offered on a residential basis over a long period, and yet this is inconsistent with current thinking on treatment of deviancy. Moreover, some centers operate on a basis that they are dealing with a psychological problem, and do not provide for the spiritual welfare of their residents.

For religious orders or bishops contemplating sending people for assessment and therapy there are clearly a lot of issues to be faced. When a person is told to go for assessment or therapy, and refuses to go and perceives himself as having no way to challenge the order, then he will remain in "limbo' indefinitely. If he chooses to assert a Canon Law challenge he will be faced with the attendant problems of the current shortage of Canon Lawyers, the complexity and remoteness of the Canon Law Process and the length of time involved.

CONCLUSION
It is incumbent on the State to address the problems disclosed by defective processes  in its systems. For the Church there is an equal obligation to institute some transparent mechanism for dealing with allegations of sexual abuse by those over whom it has jurisdiction. It should have the courage to meet the pastoral needs of its teachers, social workers, priests and religious accused of sexual abuse. Jesus did not turn his back on sinners. Nor did he marginalize or ignore the accused of crime. In addition to this it should institute proper mechanisms for dealing with unresolved cases such as those discussed above. Compassion and justice should be the hallmarks of any new system.

Such a system could include:
. the creation of  an investigatory tribunal to hear cases involving such unresolved allegations of sexual abuse
. the funding of training and development of the members of such a tribunal
. provision of qualified investigators to assist priests or members of orders in the investigation of any allegations
. the creation of clear guidelines for the conduct of hearings of the tribunal

Such a tribunal could probably function only in cases in which the police were unable to find cause to prosecute. It should probably hear only cases in which the accused person agreed to submit to an investigation and hearing. It should have no power other than to determine whether the priest or religious should be permitted to return to active life.

Such a solution would be far from perfect. It might be inconsistent with the Canon Law on the rights and duties of bishops and religious superiors. It would mean a pooling of resources and expertise, as no diocese could afford to maintain such a system independently. In any event it would be preferable that there be only one such tribunal so that it could develop expertise in dealing with these matters. Cases of the type discussed in this document are relatively rare. However they do exist and it is now clear that current Canon Law is not capable of securing justice. Something however must be done to address the situation. If an institution of any other kind were receiving allegations of misconduct in secret, withholding relevant information from the accused person, banishing them to a far-off place, refusing them access to their former friends and colleagues, and forcing them to submit to medical assessment and treatment, it would be seriously criticized.

It is surely now the time for the Church to move further along the road it embarked on in creating the Green Book.  Priests and religious have made enormous personal contributions to the people of Ireland and of the world. They are clearly demoralized by the evidence of wrongdoing by a very small number of their fellows, and concerned about the inadequacy of the current response to allegations of sexual abuse. Priests and religious are no more likely to be abusers than any of the rest of us. They are entitled to fair treatment by the Church. The rights of the victims are being addressed. It is time now to look to the rights of the accused.

Nuala O'Loan is a Senior Lecturer in Law at the University of Ulster.