The victims of sex abuse often fight personal battles between the need for privacy and the desire to make their abusers’ actions known. But when secrecy is the rule of law, it can create questions about what really happened in court. The gag orders and confidentiality surrounding a Melbourne Catholic cardinal’s sex abuse acquittal are leaving even the victims wondering what happened.
This blog post discusses an Australian criminal conviction and later acquittal on appeal. While both Australia and U.S. law are derived from the British common law, there are centuries of court opinions and statutes that drive them apart. That means that sex abuse victims here in the U.S. will not necessarily face the same procedural issues, or be entitled to the same confidentiality, as those described here. Nor do the decisions of Australia’s top court make it more or less likely that U.S. cases will have similar outcomes.
For years, the Catholic Church has been accused of covering up sex abuse scandals worldwide. States and national governments have identified hundreds of priests and thousands of victims, many of whom have been unable to get relief because of the Church’s internal policies. The Church protected its own, denying the problem publicly, and creating difficult procedures for those who did come forward.
Now, governments and individuals have begun to hold the Church and its officials accountable. Still, most of the sex abuse cases have been against individual priests. While bishops (the regional managers of the Catholic Church) had been charged and convicted for their roles in the cover-ups, until late 2018, none had been convicted of personally perpetuating sex abuse.
That changed on December 14, 2018, when Cardinal George Pell, the Archbishop of Melbourne, was found guilty of sexual abuse. The charges related to sexual assault of two 13-year-old altar boys. The allegations said he grabbed one boy’s genitals and forced his penis into the mouth of another. With that guilty verdict, Pell became the highest-ranking member of the Roman Catholic church to be convicted. He was also responsible for handling the Vatican’s financial response to sex abuse allegations against Australian priests. The charges against him began a wave of additional charges against cardinals and other officials in the highest levels of the Church.
But then, in April 2020, that conviction disappeared. Australia’s highest court reversed the conviction, saying that the jury ignored “compounding improbabilities” based on the conflicting testimony of the primary accuser and other witnesses. Here in the United States, juries and fact-finding judges are given the benefit of the doubt when it comes to weighing the credibility of conflicting witness testimonies. Unless a jury’s decision doesn’t match the evidence presented at trial, the appeals courts will leave it’s decision alone. (There may be other grounds for appeal based on procedural or legal issues.)
In this case, however, the Australian high court said the jurors put too much faith in the main sex abuse victim’s testimony and failed to adequately consider the “unchallenged evidence” from other witnesses. Specifically, the judges’ order seems to suggest that the prosecutor failed to prove the priest would have had time to commit the sexual assaults when he would have been too busy following a Sunday Mass. Because the judges believed the jury had made those mistakes, it reversed the guilty verdict, handing the Catholic Cardinal a Sex Abuse Acquittal.
Commentators and sex abuse advocates have complained that they could not evaluate the Australian court’s decision because the evidence in question is not publicly available. Australia has sexual abuse laws that automatically protect the identities of child victims. The accuser here was 13 at the time of the sexual assault, though he was an adult when he came forward in 2015. Australia also has strict confidentiality rules for all criminal cases, which are intended to protect juries from receiving prejudicial information while they deliberate.
These confidentiality laws layered with a strict “gag order” prohibiting journalists from publishing information about the court proceeding. This suppression order was so comprehensive, even reporting about the order itself. A previously published book, Cardinal: The Rise and Fall of George Pell, by journalist Louise Milligan, was pulled from bookstores rather than running the risk of contempt charges. The New York Times reported:
“A problem in this case is that the public mostly couldn’t watch,” said Jeremy Gans, a professor at Melbourne Law School who closely followed the trial. “Most of us didn’t know any of the details, and none of us have seen the complainant’s testimony.”
Advocates called for some way to review the transcript without identifying the sex abuse victim. Jason Bosland, a law professor at Melbourne University said:
“The only way the judicial branch of government is held accountable is through principle of open justice, and that requires that the public be given as much information as possible.”
Here in America, concerns over victims’ privacy must be balanced against the First Amendment freedom of the press. While judges may often issue gag orders or protect the identities of witnesses, court records, and transcripts are generally matters of public record unless specifically sealed by the court.
For some victims, this level of transparency can make coming forward intimidating. They risk damaging their own reputations by publicly testifying about the abuse inflicted upon them and cross-examination that often blames the victim and uses other, unrelated past acts to tarnish their credibility. However, for those who do come forward, publicly exposing their abuser is often almost as important as any financial damages that may be available. Many sex abuse victims say their primary goal in coming forward is making sure their abuser cannot take advantage of anyone else
That is why sex abuse victims need zealous advocates who can help them balance privacy and publicity. They need someone who can push for sealed records and gag orders where appropriate, but who are willing to take the matter public and pull back the shroud of secrecy that their abusers hide behind. At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the churches and other organizations who protect them. We can help you balance publicity and confidentiality and receive the compensation you deserve. Contact us today to schedule a free consultation.