“redress should be survivor-focused—redress is about providing justice to the survivor,
not about protecting the institution’s interests”
– Redress and Civil Litigation Report, Royal Commission into Institutional Responses to Child Sexual Abuse
Following recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse, the Australian government has set up a National Redress Scheme to pay compensation of up to $150,000 to people who claim to have been abused in various institutions over the past fifty years. Although membership of the Scheme is voluntary, Christian institutions (along with other public institutions) are under pressure to join.
Despite serious misgivings, I initially thought that our church would need to opt in to the Scheme in order to protect itself from the risk of unforeseen legal action and financial damages. But on further investigation, I discovered that, far from protecting the church, the Scheme actually places the church in danger. (This ought to have been self-evident, given that the Scheme has been set up not to protect churches but to get money from churches with a minimum fuss for alleged victims of historical child sexual abuse). And I further found that involvement in the Scheme would require us to abandon basic biblical principles of justice.
Let me cite developments in one Christian denomination by way of illustration.
In its efforts to encourage all of its member churches to opt in to the National Redress Scheme, this denomination distributed various documents and conducted various seminars in 2018 through its “Safe Church Team”, headed by the “Church Health Pastor” (both genuine titles). This Team is to be commended for its compassion for victims of child sexual abuse and its concern for the denomination’s churches. In a difficult social, political and legal climate, it is attempting both to redress wrongs done to abuse victims and to save churches from collapse under the burden of that redress.
Unfortunately, well-meaning people do not always offer well-reasoned advice. Sometimes their presuppositions, proposals and procedures can be seriously wrong. Such is the case, I fear, with the Safe Church Team. In one of its papers, for example, the Team states that “When a redress claim is first received [by the denomination from the Redress Scheme] the relevant institution [ie, the local church] is notified of the redress claim and given an opportunity to respond with relevant details. The individual accused of the offence is not notified.”1
The individual accused of the offence is not notified! The injustice expressed in this sentence is so self-evident and so extreme that one is tempted to think that the words do not mean what they say. However, upon questioning the Church Health Pastor, I learnt that there is no mistake. The accused person will not even be told that he is accused, let alone be told the identity of the accuser or the nature of the accusation. The Safe Church Team and the local church’s own safe church delegates will “respond with relevant details” to the Scheme Operator and make the redress payment to the alleged victim without ever speaking to the accused person!
Indeed, as the document goes on to state, “The individual accused of the offence will only be notified if the institution is required to consider implementing risk management measures, or if the Police choose to investigate.” In other words, the only way the accused person will discover that he has been accused, and that his church and his denomination has accepted the accusation and made “redress” on his behalf, is if the Safe Church Team or the local safe church delegates determine that he presents an ongoing danger to the local church or if they decide to refer him to the police and the police decide to investigate him.
This rather makes a mockery of the title, “Safe Church Team”. Who is the Team making the churches safe for? Not for anyone who is accused and denied due process. And certainly not for the innocent person who is falsely accused.
When I and several others asked the Church Health Pastor about this, she dismissed our concerns, insisting that “survivors” do not make false accusations, and implying that to question the truthfulness of survivors is to be guilty of insensitivity towards them and will cause them to be re-traumatised. When pressed, she claimed that just 2% of allegations prove false, and in such a case the innocent Christian should be willing to bear the false accusation for the greater good of protecting survivors from further trauma and making amends for the churches’ supposed past indifference to abuse and insensitivity to the abused.
How does such an attitude, such an approach, square with the principles of justice that God sets forth in his word, the Bible?
Before answering this question, permit me to clarify something about many of the claims that are likely to be lodged under the National Redress Scheme.
The nature of the claims
In February this year, a two-year-old girl was sexually abused in the Northern Territory town of Tennant Creek. She was raped by a 24-year-old man and as a consequence she had to be hospitalised and placed in an induced coma.2 In March this year, another aboriginal child was sexually abused in the Northern Territory. This time it was a four-year-old boy who was sodomised by a 16-year-old youth in a remote indigenous community. This child, too, was hospitalised from the injuries he sustained.3
In both these cases, there is irrefutable evidence that crimes of child sexual abuse were committed. The fact, the reality, the occurrence of the crimes has been established by the evidence of the children’s injuries, injuries that have been observed, treated and documented.
Furthermore, the passage of time will not cast into doubt the occurrence of the crimes themselves. Even if the abusers were not tracked down for 30 years, the truth of what happened would still be beyond dispute. Should someone be tried for one of these crimes in the distant future, the jury would not need to ask, Did it really happen? The only question of concern to the jury would be, Is the accused really the one who did it?
But this is not the case with many of the crimes forming the basis of claims that will be made through the National Redress Scheme. These claims will involve allegations of historical child sexual abuse. In such cases, generally speaking, there is no evidence of the crime itself, let alone of who might be the criminal.
By way of illustration, consider “Reynold’s story” to the Royal Commission: “When he was nine years old, in the 1960s, Reynold was sexually abused [in a Catholic school] by one of the Brothers. … And because of the Brothers’ tendency to administer corporal punishment, he felt he couldn’t disclose what had happened.” And he did not disclose it to anyone for another thirty years: “It wasn’t until he turned 40, after a number of close friends passed away from AIDS-related illnesses, that his psychological health began to deteriorate. After a particularly close friend died, Reynold sought help from a grief counsellor where he revealed the abuse he had experienced as a child.”4
It is apparent that Reynold’s story of abuse in the 1960s is very different from the stories of the two aboriginal children who were abused in 2018. And the principle difference is this: there is no evidence that what Reynold claims happened actually did happen. Of course, Reynold may be telling the truth, but we only have his word for it. There is no proof of the crime itself, let alone of who committed it. And now, some 50 years later, it is virtually impossible to find proof. How, then, can we determine who is guilty when we have no evidence that anyone is guilty? The question Who actually did it? is meaningless when we cannot answer the prior question Did it actually happen?
Many of the cases of historical child sexual abuse “documented” by the Royal Commission and likely to be advanced through the Redress Scheme are of this unproven and unproveable sort. We should never lose sight of this fact. For when there is no proof that a crime has actually occurred, we must be doubly cautious about judging someone guilty of it.
And we must be doubly diligent to follow the principles of justice that God sets out in his Word. What are those principles?
Biblical principles: A fair hearing
We should hear the accused before we believe the accuser. It is unjust and unconscionable to assume a person’s guilt without even hearing his (or her) defence.
- Does our law judge a man without first giving him a hearing and learning what he does? (John 7:51)*
This is a rhetorical question put by Nicodemus to the chief priests and Pharisees when they wanted to condemn Jesus outright. The answer built into it is, “No, the law does not judge a man without first listening to him to learn his version of events.”
- If one gives an answer before he hears, it is his folly and shame. (Proverbs 18:13)
- A false witness will perish, but a careful listener will testify successfully. (Proverbs 21:28, NIV)
The person who makes an allegation is usually the one we hear first. This gives him the double advantage of arousing our sympathy and fixing his version of events in our minds. But that advantage must not go uncontested. As Solomon observes:
- The one who states his case first seems right, until the other comes and examines him. (Proverbs 18:17)
Things are not always as they appear. We cannot form sound judgments without listening to the arguments and looking at the evidence of both sides.
- Do not judge by appearances, but judge with right judgment.” (John 7:24)
- The sins of some people are conspicuous, going before them to judgment, but the sins of others appear later. (1 Timothy 5:24)
Conviction by accusation is a monstrous perversion of justice. An accusation is the start of the judicial process, not the end of it.
Biblical principles: Impartiality
We must be impartial. When we are required to judge between two contending parties, we should not favour one over the other. We should strive to remain neutral until we know the facts. God requires us to be unbiased as we seek to establish the truth or the falsity of an accusation and the innocence or the guilt of the accused.
- Partiality in judging is not good. (Proverbs 24:23)
- You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbour. (Leviticus 19:15)
- You shall not be partial in judgment. You shall hear the small and the great alike. (Deuteronomy 1:17)
- nor shall you be partial to a poor man in his lawsuit. (Exodus 23:3)
We tend to think that it is acceptable, if not noble, to be partial towards those whom we deem to be oppressed and powerless. But God utterly rejects such bias as unjust. He insists that we must not favour poor people over rich people, black people over white people, women over men—or vice versa. We must treat all people impartially, without prejudice either for or against them.
Impartiality must apply to all ethnic, social and religious groups in a country, too. The same laws and the same due processes and the same sentences must apply indiscriminately to all. It is abhorrent to justice to permit some people to get away with crimes on the grounds that their behaviour is part of their “culture”. The law of the land is the law of everyone in the land.
- You shall have the same rule for the sojourner and for the native, for I am the LORD your God.” (Leviticus 24:22; cf Exodus 12:49)
- One law and one rule shall be for you and for the stranger who sojourns with you.” (Numbers 15:16; cf 9:14-15)
Increasingly in the West, Muslim immigrants and refugees are committing sexual crimes against the women and children of their host countries. And with alarming regularity the courts are mitigating their sentences on “cultural” grounds. In Queensland in April 2017, for example, an Afghan immigrant (who was initially charged as an adult then, in the absence of documentation to prove his age, as a 17-year-old juvenile) pleaded guilty to nine charges of sexual assault against seven women aged 15 to 24. He had molested them, in some instances with maximum indecency, while they were swimming at Surfers Paradise Beach. The judge placed him on two years’ probation, but recorded no conviction against him. (Given the court’s suppression of the abuser’s name and its refusal to record a conviction against him, presumably he will still be eligible to acquire a Working with Children’s Card, etc.) The judge justified his leniency on the grounds of “cultural differences”. He reportedly “accepted [that] the teenager grew up in difficult circumstances in Afghanistan”5 and he also “accepted that seeing girls in bikinis is different to the environment in which he grew up.”6 Such ethnic-cultural favouritism is a betrayal not only of the local girls and women who have been abused but also of the principles of justice upon which the welfare of the entire nation depends.
One of the most highly favoured groups in Australia today is alleged “survivors” of child sexual abuse (with “me too” women following close behind). Just how favoured this group is can be seen from the five-year-long Royal Commission into Institutional Responses to Child Sexual Abuse. Further proof is furnished by the recent national apology by the Prime Minister and the Parliament. And what better proof than the National Redress Scheme itself?
The Scheme makes no pretence about its overwhelming bias towards survivors and its determination to give them preferential treatment. In recommending the establishment of the Scheme, the Royal Commission repeatedly states that “redress should be survivor-focused—redress is about providing justice to the survivor, not about protecting the institution’s interests”.7 What a brazen statement of bias—and what a revealing explanation (both positively and negatively) of what that bias involves!
We might be tempted to think, Good, those big Christian denominations, whose only interest (as everyone knows) is to protect their own power and privilege, are finally getting their comeuppance! But wait a moment. The Royal Commission and the Redress Scheme are expressing bias against local churches every bit as much as the denominational headquarters to which those churches belong.
To bring it home: The Scheme has no interest in “providing justice” for your church. It is you and your fellow Christians with whom you worship each Sunday that the Scheme is “not about protecting”. Nor is the Scheme concerned to protect the dear, godly pastors and Sunday School teachers of past generations who did so much to pass on the Faith to you. The Scheme is “survivor focused” and quite unconcerned that this bias may produce injustice for those whom survivors accuse. Indeed, it seems that the Scheme’s only concern for the churches is that they should remain in awful suspense until a self-proclaimed survivor levels an allegation and lodges a claim against them, and then they should simply own up and pay up.
This favouritism, this partiality for one party against another, is a violation of biblical and Western principles of justice and is one of many reasons why churches should be cautious about signing up to the National Redress Scheme.
The Prime Minister, Scott Morrison, concluded the national apology to victims of institutional child sexual abuse in the Federal Parliament on 22nd October with the words, “I believe you. We believe you. Your country believes you.” The Leader of the Opposition, Bill Shorten, likewise avowed, “We hear you now. We believe you. Australia believes you.”
This may be all very well as part of a general statement of apology, but it will not do in specific cases where specific people are accused. Such blind and prejudicial belief, such rank impartiality, will not stand before the Lord and should not stand before the law. An accusation is not proof, and no one has the right to prejudge the accused as guilty by declaring absolute belief in the accuser. Such an affirmation must be reserved until the accusation is tested and found to be true. No one—not church members or denominational leaders, not Safe Church Teams or Church Health Pastors, not Prime Ministers or Royal Commissioners—no one has the right to deny due process of law to persons accused of any crime, including the crime of child sexual abuse. We must be courageous in asserting this. We must not be cowards and follow the ranting mob who have not the slightest compassion for the falsely accused or the slightest desire that they be fairly treated.
Biblical principles: Several witnesses
An accusation must be corroborated before it is believed. It must not be taken at face value, but must be established by evidence. In so far as we have any responsibility to determine the guilt or innocence of someone who is accused, we must not simply take the word of the accuser.
An allegation is not a proof: it is something that must be proven. For the purpose of proof, one witness—namely, the person making the allegation—is not enough. At least one additional witness is needed.
- A single witness shall not suffice against a person for any crime or for any wrong in connection with any offense that he has committed. Only on the evidence of two witnesses or of three witnesses shall a charge be established. (Deuteronomy 19:15; cf 17:6; Numbers 35:30)
The Bible applies the principle of several witnesses in every matter of dispute, the personal as well as the criminal.
- Do not admit a charge against an elder except on the evidence of two or three witnesses. (1Timothy 5:19)
- Every charge must be established by the evidence of two or three witnesses. (2 Corinthians 13:1; cf Matthew 18:16; Hebrews 10:28)
God requires accusations of every sort to be confirmed by more than one witness before they are believed and acted upon. Whether the charge relates to a church matter or a state matter, whether it concerns a sin or a crime, whether it involves immorality or illegality, whether it is levelled at a church leader or an ordinary citizen: it cannot be acted upon without multiple witnesses.
Of course, the absence of a second witness does not necessarily mean that the charges of the first witness are untruthful or unfounded. The sole witness, the victim, may be truly aggrieved and the person he has accused may be truly guilty. The point is that without another witness and/or some other corroborating evidence, we cannot know the truth of the matter when all we have is one person’s word against another’s. We may even form a strong conviction that the sole witness is telling the truth and that therefore the accused is guilty. But we cannot act upon that conviction (in terms of declaring guilt and imposing punishment) because we cannot prove that it is correct. God insists on proof.
This brings us to a deeply significant matter concerning the necessity for multiple witnesses. God desires justice for all, but if that cannot be achieved (at least, not now), he requires us to avoid the greater of two evils. It is evil that a guilty person should be acquitted, but eviller that an innocent person should be convicted. Again, it is evil that a victim should suffer the injustice of the perpetrator going free, but it is eviller that a person should suffer the injustice of being condemned for something he did not do. Therefore, every effort must be made to avoid a wrongful conviction, even if that effort results in no conviction of a perpetrator and no satisfaction for a victim.
All God’s principles of justice—the need for multiple witnesses, impartial assessment and hearing out the accused—all these principles are aimed at avoiding wrongful conviction. They are aimed at protecting an innocent person who has been falsely accused. Even the victim’s right to justice is subordinated to the accused’s right to justice.
God is aware that the requirement of multiple witnesses may prevent a genuine victim from getting justice. He knows perfectly that by refusing to allow the victim’s word alone a guilty person may go free. And while such injustice is an outrage, it is not as outrageous as an innocent person being wrongfully convicted. To prevent this, a second witness, at the very least, is essential.
It is significant that Jesus acknowledges the requirement of God’s Law for more than one witness to establish the truth of a matter, and he acknowledges that this requirement is binding even on him.
- [Jesus said,] If I alone bear witness about myself, my testimony is not true. (John 5:31)
This is an extraordinary statement. The implication is not so much that Jesus is untruthful if he alone testifies about himself, but that he cannot and does not expect anyone to believe his testimony alone. He expects us to expect his testimony to be corroborated by other proofs before we accept it as true. Think of it—the perfect God-Man himself acknowledges the need for other witnesses even in the matter of the perfect God-Man himself!
Jesus expects us to believe his testimony about himself because it is validated by (at least) four other witnesses. Those witnesses are: (1) God the Father; (2) John the Baptist; (3) the Old Testament Scriptures; and (4) the works he performed. Jesus identifies all four witnesses in this single passage of Scripture:
- You sent to John, and he has borne witness to the truth. But the testimony that I have is greater than that of John. For the works that the Father has given me to accomplish, the very works that I am doing, bear witness about me that the Father has sent me. And the Father who sent me has himself borne witness about me. … You search the Scriptures be-cause you think that in them you have eternal life; and it is they that bear witness about me … (John 5:33-39, my emphasis; cf 5:46-47)
Jesus did not expect others to believe him on the basis of his word alone. Nor, in matters of dispute, should anyone else expect to be believed without evidence, not even those who claim to have experienced sexual abuse, whether decades ago as a child or recently as an adult.
A witness need not always be a person. The purpose of a witness is to provide corroborating evidence. Such evidence can often be gathered by means other than the testimony of a person. For example, Jesus indicates that the Scriptures “bear witness” to him.
In modern times we accept other witnesses than human witnesses. We accept the witness, the evidence, of DNA and fingerprints. We accept the witness, the proof, of CCTV footage and voice recordings. We accept the witness, the verification, of email and social media records.
Concerning a recent charge of historical child sexual abuse against Cardinal George Pell, for example, corroborating evidence in his defence was provided by a passport. During the Royal Commission, someone accused him of callously ignoring a boy’s pleas for help while being abused. Fortunately for the cause of justice, the Cardinal’s passport showed that he actually lived in Rome during the year of the supposed abuse.8 His accuser was either delusional or deceitful, and either way his accusation was entirely false. His passport was witness to the falsity of the charge.
In sum, if the accuser, who is the first witness in his own cause, is not able to produce another person to prove his accusation, then other proofs must be furnished. But whatever the nature of the witnesses, there must be more than one—there must be more than the solitary testimony of the accuser.
Biblical principles: False witnesses
To establish the truth or falsity of an accusation, several witnesses are needed. But they must be sound witnesses. Unfortunately, not all witnesses are truthful and trustworthy. Some are false.
The Bible records many accounts of false witnesses and the ruin they bring upon innocent people. Potiphar’s wife bore false witness against Joseph, accusing him of rape, and condemning him to prison (Genesis 39). Jezebel arranged for “two worthless men” to bear false witness against Naboth, accusing him of cursing God and the king, and condemning him to death (1 Kings 21). The chief priests encouraged false witnesses to testify against Jesus, and although “their testimony did not agree”, they contributed to his sentencing to death (Matthew 26 and Mark 14). Various synagogue leaders “set up false witnesses” against Stephen, accusing him of blasphemy, and condemning him to death.
The Bible repeatedly warns us against bearing false witness.
- You shall not bear false witness against your neighbour. (Exodus 20:16; cf Deuteronomy 5:20, Matthew 19:18, Luke 18:20)
- You shall not spread a false report. You shall not join hands with a wicked man to be a malicious witness. (Exodus 23:1; cf Leviticus 23:1)
- Be not a witness against your neighbour without cause, and do not deceive with your lips. (Proverbs 24:28)
These warnings should alert us to the fact that false witnesses can appear at any time in any situation—and when they do appear, they pose a serious danger to the processes of justice.
By commanding us not to bear false witness, the Lord indicates that we are capable of (if not inclined towards) such sin. We must therefore be on guard against it, in ourselves and in others.
- There are six things that the LORD hates, seven that are an abomination to him … a false witness who breathes out lies, and one who sows discord among brothers. (Proverbs 6:16-19)
- A faithful witness does not lie, but a false witness breathes out lies. (Proverbs 14:5; cf 14:25, 19:28, 24:28)
Honest people can be deceived and innocent people can be condemned by the words of false witnesses. No enquiry into a dispute, no trial of an accused person, can proceed fairly without measures being taken to safeguard against the possibility of untruthful testimony. Witnesses may be emotionally convincing, but are they honest and reliable? Are their allegations credible and verifiable? Only investigation and cross-examination can answer these questions.
Scripture reveals that human beings are deeply disordered, and one manifestation of this moral disorder is deceitfulness.
- the intention of man’s heart is evil from his youth. (Genesis 8:21; cf 6:5))
- The heart is deceitful above all things, and desperately sick; who can understand it? (Jeremiah 17:9)
- [Jesus said,] For out of the heart come evil thoughts, murder, adultery, sexual immorality, theft, false witness, slander. (Matthew 15:19)
The heart of our problem is our heart. We are corrupted at the core of our being. And because no one is entirely pure of heart, no one is entirely immune from the possibility of bearing false witness. And because no person is immune from the possibility of witnessing falsely, no person can be believed unconditionally.
This is an infuriating truth for those who like to think of certain classes of people as innocents and victims. They cannot abide the thought that members of revered groups, such as “refugees” or “abuse survivors”, could be deceitful at all, let alone as deceitful as members of scorned groups, such as “middle-aged white men” or “conservatives”. Yet God’s Word declares:
- None is righteous, no, not one … All have turned aside … (Romans 3:10-12)
- For there is no distinction: for all have sinned and fall short of the glory of God … (Romans 3:22-23)
Jesus understood all too well that this truth is profoundly unpopular:
- [Jesus said,] The world … hates me because I testify about it that its works are evil. (John 7:7)
Irrespective of how we might be hated for it, we must insist that no witness—not even one who claims to have been sexually abused as a child—should be believed unconditionally. All testimonies must be tested before they are trusted.
- [Jesus said,] Blessed are you when people hate you and when they exclude you and revile you and spurn your name as evil, on account of the Son of Man! (Luke 6:22)
- [Jesus said,] If the world hates you, know that it has hated me before it hated you. (John 15:18)
Even if we are hated for it, we Christians cannot chant along with the mob: “We believe survivors!” “Victims don’t lie!” “Women must be believed!” Such declarations in advance (and sometimes in spite) of proof are profoundly unjust.
While everyone has a right to be heard, no one has a right to be believed. That “right” must be earned by the presentation of evidence. We are not obliged to believe an accuser unless and until the truth of his accusation has been proved “beyond reasonable doubt”.
If, on examination of the evidence, an allegation is proved to be untrue, the witnesses themselves should be judged. If it is established that their testimony was knowingly false, they should be prosecuted.
- If a malicious witness arises to accuse a person of wrongdoing, then both parties to the dispute shall appear before the LORD, before the priests and the judges who are in office in those days. The judges shall inquire diligently, and if the witness is a false witness and has accused his brother falsely, then you shall do to him as he had meant to do to his brother. So you shall purge the evil from your midst. And the rest shall hear and fear, and shall never again commit any such evil among you. (Deuteronomy 19:16-20)
State governments and church governments ought to punish anyone who is caught out bearing false witness against another person. If undetected, a lying witness can ruin an innocent person. Worse, if detected but left unpunished, a false witness can ruin a whole society. For others will be emboldened to copy him, knowing that they have every-thing to gain if they get away with their lies, and nothing to lose if they don’t.
Unfortunately, the biblical injunction to punish false witnesses is largely ignored in cases of sexual abuse (whether involving historical or contemporary incidents, whether involving young children or adult women). In such cases, people who are exposed as false accusers are seldom punished, which is one reason why such claims are bound to increase in the nation.
Although it may be of little immediate comfort to those wrongly charged and convicted, it is encouraging to know that the Judge of all the Earth will one day set all to rights.
- A false witness will not go unpunished, and he who breathes out lies will not escape. (Proverbs 19:5)
If not now, then in the end liars will be punished. In the meantime, we must watch out for false witnesses. We must not be emotional and gullible, but sensible and guarded. God requires this of us because he requires us to take extreme care not to condemn an innocent person.
Biblical principles: Be fair to yourself
There is a perverse notion put about by some Christians involved in “counselling” and “therapy” that (sometimes, at least) an innocent person ought to be willing to bear a false accusation and its consequences in order to soothe the emotions of an accuser. Indeed, they even claim that it is Christlike to do so.
However, the Lord Jesus never allowed a perception that he was guilty of any wrongdoing. He was innocent of any sin or crime, and he protested his innocence when-ever anyone accused him.
- [Jesus said,] Which one of you convicts me of sin? (John 8:46)
Jesus bore our sins and our guilt on the cross, but at no point did he accept them or permit others to think of them as his sins and his guilt. Indeed, his cry of desolation on the cross was a declaration that he had done no wrong—that he himself was innocent of the sins he was vicariously bearing.
- Jesus cried with a loud voice … “My God, my God, why have you forsaken me?” (Mark 15:34)
Had Jesus allowed the perception that he was guilty of any sin anywhere anytime, he would have jeopardised his whole ministry and put a stumbling block in the way of people accepting him as Saviour and Lord. It is not enough that Jesus is actually sinless: he must be perceived as sinless. That is why he always refuted the allegations (of blasphemy, of Sabbath-breaking, of self-promotion, of having a demon, etc) that the religious leaders brought against him. Before anyone can say, “Jesus, remember me when you come into your kingdom,” they must first make the judgment, “I am rightly receiving the due reward of my deeds; but this man has done nothing wrong” (cf Luke 23:40-41).
The Apostle Paul did not meekly accept false allegations against himself but protested his innocence and defended himself vigorously:
- When he had arrived, the Jews who had come down from Jerusalem stood around him, bringing many and serious charges against him that they could not prove. Paul argued in his defence, “Neither against the law of the Jews, nor against the temple, nor against Caesar have I committed any offense.” (Acts 25:7-8)
- But Paul said, “I am standing before Caesar’s tribunal, where I ought to be tried. To the Jews I have done no wrong, as you yourself know very well. If then I am a wrongdoer and have committed anything for which I deserve to die, I do not seek to escape death. But if there is nothing to their charges against me, no one can give me up to them. I appeal to Caesar.” (Acts 25:10-11; cf 24:10-13)
God does not require us to accept blame for wrongs we have not done. On the contrary, by his Spirit he guided many biblical writers to cry out to him for vindication. He knows the torment that false accusations cause the innocent and he is deeply moved by their plight. The entire book of Job, for example, deals with the distress of a man who is falsely accused.
- If I have walked with falsehood and my foot has hastened to deceit; (Let me be weighed in a just balance, and let God know my integrity!) if my step has turned aside from the way and my heart has gone after my eyes, and if any spot has stuck to my hands, then let me sow, and another eat, and let what grows for me be rooted out. (Job 31:5-8)
God himself repeatedly asserted that Job was “a blameless and upright man” (1:8, 22; 2:3, 10; 42:7-8), and yet his friends took turns blaming him for various sins and tried to bully him into confessing to them. Worse, when he insisted that he was not guilty of any of their charges, they accused him of being a liar.
- in spite of my right I am counted a liar; my wound is incurable, though I am without transgression. (Job 34:6)
Job was tormented by his friends’ allegations. He could, perhaps, have lessened or ended his trial by “owning up” to the wrongs and thereby placating his friends, but to do so would have been a lie. Denying their false allegations was a righteous thing to do. Accepting them would have been sinful.
David, likewise, was a man who suffered torment because of false accusations. His psalms abound with the cries of distress of a godly man who has been falsely accused and who longs for his innocence to be revealed.
- Malicious witnesses rise up; they ask me of things that I do not know. They repay me evil for good; my soul is bereft. …
Let not those rejoice over me who are wrongfully my foes, and let not those wink the eye who hate me without cause. … they devise words of deceit. … Awake and rouse yourself for my vindication, for my cause, my God and my Lord! Vindicate me, O LORD, my God, according to your righteousness, and let them not rejoice over me! (Psalm 35:11-24)
- O LORD my God, if I have done this, if there is wrong in my hands … let the enemy pursue my soul and overtake it, and let him trample my life to the ground and lay my glory in the dust. (Psalm 7:3-5)
We hear a great deal about the trauma that might be stirred up in survivors through the trial process. Indeed, a key justification for the National Redress Scheme is that it will allow survivors to get compensation without suffering trauma. But where is the concern, the compassion, for the trauma experienced by those who are falsely accused? Certainly, there is no sympathy for the anguish of innocent people who have been and will be harmed by the Scheme process, which is largely devoid of the legal protections due to the accused.
God has set down principles of justice to safeguard innocent people who face false accusations. He feels tender compassion towards those who are falsely accused and he will take up their cause in due time. Let all falsely accused take comfort. Let all false accusers and their virtue-signalling accomplices be warned.
Unfortunately, the Church Health Pastor seemed impervious to the suffering of fellow-Christians who might be falsely accused under the National Redress Scheme. Such innocent people would just have to suffer stoically for the benefit of survivors generally. More than this, she maintained that these falsely accused persons ought to be happy to make “redress” (via their churches) to those who have falsely accused them, because this is somehow a Christ-mandated and Christ-honouring duty. This is a staggeringly perverse notion!
- More in number than the hairs of my head are those who hate me without cause; mighty are those who would destroy me, those who attack me with lies. What I did not steal must I now restore? (Psalm 69:4, ESV)
The last part of this verse can be translated as either a question or a statement. The English Standard Version (quoted above) presents it as a question. The New Inter-national Version presents it as a statement:
- I am forced to restore what I did not steal. (Psalm 69:4b, NIV)
Whether it is a question or a statement, either way it is an expression of distress and outrage. David is surrounded by malicious liars who are expecting him or forcing him to “give back” what he never took. The injustice of it! And what decent person would not feel distressed and outraged?
The worst part of David’s dilemma is that by making so-called restitution he would be implicitly acknowledging the truth of his enemies’ accusation. He would effectively be confessing his own guilt—and this would make him a false witness against himself and would convey the impression to others that he actually is guilty. Does Christ really re-quire his people to do this—and specifically, to do it in the vile matter of child sexual abuse?
This question can be answered decisively by two other questions: Would the Lord Jesus have meekly accepted false allegations of abuse and permitted himself to be viewed as a sexual predator of children? And would his gospel ministry have been helped or hindered if word spread around that, by his own admission via a redress payment and an apology, he was a child sexual abuser?
Biblical principles: Proportionality
The Bible is truly revolutionary in the principles of justice that it enunciates, principles that were largely unknown, and certainly unpractised, in the ancient world outside of Israel. Perhaps the most revolutionary of all is the principle of proportionality—the principle of fairness in punishment.
- But if there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe. (Exodus 21:25)
- If anyone injures his neighbour, as he has done it shall be done to him, fracture for fracture, eye for eye, tooth for tooth; whatever injury he has given a person shall be given to him. (Leviticus 24:19-20; cf Deuteronomy 19:21)
Here is mercy in judgment. Even for convicted criminals, God insists upon what is fair. He will tolerate neither overreaction nor underreaction. A wrongdoer must be punished, yes, but the punishment must be in proportion to the wrong done. Minor crimes warrant minor punishments and major crimes warrant major punishments.
It should be noted that it is the principle of proportionality that is significant and abiding in these Old Testament laws. We might rightly move away from a literal punishment of an eye for an eye, but we dare not move away from an equivalent punishment. The Old Testament Law itself allows for such equivalence. Hence, the verses following Exodus 21:25 (quoted above) stipulate not an eye for an eye or a life for a life, but freedom for an eye and ransom for a life:
- When a man strikes the eye of his slave, male or female, and destroys it, he shall let the slave go free because of his eye. (Exodus 21:26)
- But if the ox has been accustomed to gore in the past, and its owner has been warned but has not kept it in, and it kills a man or a woman, the ox shall be stoned, and its owner also shall be put to death. If a ransom is imposed on him, then he shall give for the redemption of his life whatever is imposed on him. (Exodus 21:29-30)
The key thing is not so much the manner of the punishment but the magnitude. Imprisonment, fines, damages, bans, com-munity service, house arrest, confiscation of property—these are legitimate forms of punishment, provided only that they are imposed proportionate to the seriousness of the crime.
The importance of proportionate punishment is demonstrated in the account of the rape of Dinah, Jacob and Leah’s daughter, recorded in Genesis 34. When Dinah’s brothers learned of her humiliation, they were rightly “indignant and very angry”.
In response, they killed not only the rapist but also every other male in his city, and afterwards they plundered the city, leaving the girls and women destitute as well as bereft. That is what “justice” looks like when it is not restrained by God’s rule of proportionality.
Even today, massive overreaction still occurs in many cultures, especially those governed by the mores of “honour” or the tenets of Islam (the two often overlap). Recently in the Islamic Republic of Pakistan, for example, a Christian woman who drank water from a Muslim woman’s cup would have been murdered by her hysterical Muslim neighbours if the police had not delivered her to the judge, who sentenced her to death. By any standard other than Islamic ones, this was a disproportionate punishment for the alleged “crime”.
However, in Western nations today the violation of God’s principle of proportionality is likely to be in the other direction. It is cruelly ironic that at the same time that child sexual abuse is (rightly) thought of as the worst of crimes, the punishment for those convicted of it is often quite lenient.
In Sydney in January 2015, for example, a 20-year-old man, a Rohingya Muslim refugee, sodomised a 10-year-old boy, also a refugee from Myanmar. He was caught two days after the attack, and convicted in August 2016 on both witness and DNA evidence.9
During his trial the man “claimed he did not know sexually assaulting the child was wrong as it was ‘culturally acceptable’ in his homeland.” It is difficult to know what weight the judge put on this cultural defence. However, he did seem to lean towards “cultural sensitivity” when he observed that the sodomiser “failed to understand his actions would ‘physically’ and ‘psycho-logically damage’ his young victim.” (Except as a ruse for leniency, how is this relevant? Since when have criminals cared about the harm they cause their victims? And since when does fair punishment for a crime depend upon the criminal being able to sympathise with his victim?)
Despite observing that the man demonstrated “a lack of morality” and posed “a moderate to high risk of re-offending”, the judge sentenced him to jail for a mere five years, with eligibility for parole in three years.
Is that a just sentence? Is it a punishment in proportion to the crime? I, for one, do not believe so. If child sexual abuse really is such a serious crime (and I believe it is), how is it that courts can treat it so lightly when handing down sentences on serious abusers who have been found guilty beyond reasonable doubt through due process of law?
God insists that the level of punishment must match the level of wrongdoing. The punishment must fit the crime. He abhors lenient sentences and severe sentences alike. Punishment must be proportional.
Biblical principles: Take courage
The Christian life is a life of courage and independence, not cowardice and conformity. There is tremendous pressure on everyone to go along with the current approach concerning alleged “survivors” of historical child sexual abuse. If you dare suggest that witnesses should be examined or that an accused person should be considered innocent until proven guilty, you risk being slandered as someone who is insensitive to the abused and sympathetic to abusers.
Yet despite the risks, we must not abandon God’s principles of justice. We must dare to be just to all concerned.
- You shall not fall in with the many to do evil, nor shall you bear witness in a lawsuit, siding with the many, so as to pervert justice (Exodus 23:2)
- You shall not be partial in judgment. You shall hear the small and the great alike. You shall not be intimidated by anyone, for the judgment is God’s. (Deuteronomy 1:17)
We are all called upon to make judgments on various people in various matters. And we are all required to be honest and courageous in the judgments we make. Jehoshaphat’s advice to the judges he appointed in ancient Israel could also serve for us:
- Consider what you do, for you judge not for man but for the LORD. He is with you in giving judgment. Now then, let the fear of the LORD be upon you. Be careful what you do, for there is no injustice with the LORD our God, or partiality or taking bribes. (2 Chronicles 19:5-7)
When forming judgments, we are judging on the Lord’s behalf and we should fear his displeasure, not the displeasure of dominant groups or popular movements. Furthermore, provided we follow his principles of justice, God is with us to help us make sound judgments. We should trust him.
Concerning allegations of historical child sexual abuse (and similarly, allegations of historical sexual assault on women), it is hard not to fear the baying mob and the politically correct brigade. Those who truly were sexually abused as children were doubtless powerless at the time, but they (and their “me too” copycats) are not powerless now. They and their immensely powerful sympathisers—the media, the welfare industry, the Royal Commission, the National Redress Scheme, and the national and state parliaments—have managed to place every man in the country under suspicion, with special suspicion falling on fathers of traditional families and leaders of Christian institutions and churches. They have created an atmosphere where the presumption of innocence is destroyed and a mere accusation is immediately taken as sufficient (if not decisive) proof of guilt by two-thirds of the population. Survivors are in a position of immense power and they and their cheering hordes show no inclination for compassion or restraint in the way they bandy that power about. No sensible man, and no sensible woman who loves a man (brother, father, husband or son), could possibly view what is happening in this country regarding alleged historical child sexual abuse without feeling alarmed.
Indeed, I suggest that this alarm underlies the reason why many decent church leaders are taking their churches into the Redress Scheme: It is not because they themselves bear the slightest guilt, nor because they have the slightest reason to believe ill of earlier godly generations in their churches, but because they are afraid, afraid of the power of “survivors” to smash their guiltless reputations and their innocent churches to pieces without the slightest proof and without any possibility of defence and redress on their part. And they are, I conjecture, putting their trust in the National Redress Scheme, hoping it will protect them, or, at least, limit the damage they might suffer.
But the survivor-favouring Redress Scheme is a cause of their danger, not the solution to it. It would be better not to be afraid of survivors and their militant allies, but to trust in God and hold to his principles of justice.
- The fear of man lays a snare, but whoever trusts in the LORD is safe. (Proverbs 29:25)
Scheme realities: Not a criminal process?
The Church Health Pastor dismissed concerns about presumption of innocence and notifying the accused and furnishing witnesses with the claim that the Redress Scheme process is not a criminal process. She claimed that the accused individual is not on trial, so biblical principles of justice do not apply. This claim is amiss on three grounds.
Firstly, while the Scheme process does not involve criminal proceedings, it does involve criminal matters—matters that may result in criminal charges and a criminal trial. Secondly, the allegations that initiate the process are of such a serious nature that, whether or not they result in criminal prosecution, they could utterly ruin a person’s relationships, reputation and livelihood. Thirdly, the Bible requires us to apply principles of justice in all cases, not just in criminal cases—whether the case is before the church for possible discipline or before the court for possible sentencing, the same procedures must be followed.
Technically, the Church Health Pastor is right to say that the Redress Scheme does not involve criminal law, but practically she is wrong. The Royal Commission made it quite clear that redress was only one of three legal approaches it was exploring to get “justice for victims”, and these three approaches (redress, civil and criminal) are not discrete: they overlap and bolster one another.
In its Redress and Civil Litigation Report, the Royal Commission stated that it “is investigating criminal justice issues (including processes for referral for investigation and prosecution) …”10 More seriously yet, in its recommendation concerning the establishment of a redress scheme, it declared:
A redress scheme should report any allegations to the police if it has reason to believe that there may be a current risk to children. If the relevant applicant does not consent to the allegations being reported to the police, the scheme should report the allegations to the police without disclosing the applicant’s identity.11
The Redress Scheme will be making criminal referrals. This should not surprise the Church Health Pastor and the Safe Church Team, for in their own document (as quoted earlier) they have stated, “The individual accused of the offence will only be notified if the institution is required to consider implementing risk management measures, or if the Police choose to investigate.”1 The question arising from this is: Will people who are referred to the police be prejudiced because, quite unbeknown to them, their alleged guilt has been “confessed” by a payment and an apology? A further question could be: Will the local churches to which they belong have enough money and fortitude left over from the redress process to support their fellow members who are subsequently dragged into a criminal trial?
Even if no criminal charges are laid by the police and no criminal trial is conducted in the courts, the accused person may discover that his church’s betrayal of him through and to the Redress Scheme will become known in the wider community, which will then view him as criminally guilty. For while institutions are bound to confidentiality by the Scheme, survivors are not. Indeed, the Royal Commission expressly recommended that “No confidentiality obligations should be imposed on applicants for redress.”12
Even if a successful claimant does not reveal the name of the accused, what about members of the congregation of the local church that has made the redress payment on his behalf? It is highly unlikely that the two safe church officers who have liaised with the denominational Safe Church Team will be able to keep strict confidentiality on the name of the accused person. It is also highly unlikely that the members who have had to approve the redress payment will be content to shell out tens of thousands of dollars without caring who among them by his alleged despicable behaviour is “responsible” for this impost. How long will the church congregation keep confidentiality?
In short, how long before the accused is viewed as a criminal, a perpetrator of the vilest crime imaginable, in the church community and in the community at large? Tell him then that the Redress Scheme was “not a criminal process” so it did not need to abide by the most elementary standards of biblical and Western justice—tell him that then and see what comfort he gets.
The Government and the Redress Scheme are well aware that accused persons’ reputations could be destroyed through the Scheme process, but they seem quite unperturbed about it. Commenting on “the right of everyone to freedom from unlawful attacks on their honour and reputation”, the Explanatory Memorandum for the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 states:
All information under the Scheme will be subject to confidentiality. However, there is a risk that unlawful disclosure of information about an [alleged] abuser by a participating institution irrevocably damages the reputation of an [alleged] abuser in circumstances where proof to a criminal or even a civil standard is not required.
Supplying details of abusers is necessary to allow participating institutions to provide the relevant information and records that verify ‘reasonable likelihood’ … The risk of unlawful disclosure by participating institutions is necessarily a part of making redress available for survivors through the Scheme. … Any unlawful attack on honour or reputation will be the result of individuals breaching the provisions of the Bill, rather than resulting from the Bill itself.13
We might summarise and simplify the Scheme’s position as follows: Sure, some people’s reputations may be ruined forever, but we can live with that—and anyway it won’t be our fault!
As for civil action, the Royal Com-mission stated, “This report also contains recommendations for reforms to civil litigation systems to make civil litigation a more effective means of providing justice for survivors.”14 True to its repeatedly stated bias, the Royal Commission shows little interest in providing justice for accused persons.
It wants to “reform” the civil litigation system to make it easier for survivors to win their cases—which means, of course, it wants to make it harder for defendants to defend themselves.
This is extremely important in the context of the Redress Scheme and redress payments. For while a redress payment by a church extinguishes the alleged victim’s right to take civil action against the church itself, it does not extinguish the victim’s right to take civil action against the individual in the church who has been accused. And by making the payment on behalf of the accused individual, albeit without his knowledge or consent, the church could endanger the accused person’s defence in the event of civil litigation.
The Church Health Pastor insisted that making a redress payment and giving an apology does not constitute an admission of guilt. It is hard to see how this could be the case. Indeed, it takes a stretch to believe that there is no admission of guilt if someone from the Safe Church Team, perhaps the Church Health Pastor herself, were to say to a successful survivor claimant, “I hope our redress payment will help bring healing for the wrong done to you by Pastor So-and-So of Such-and-Such church. We are deeply sorry that he abused you in that way and we acknowledge the trauma that his abuse has caused you, and we are deeply sorry for that, too.”
Recently, I asked Dr Augusto Zimmermann, Professor of Law at Sheridan College and Adjunct Professor of Law at the University of Notre Dame, about the implications for the accused of a redress payment should criminal or civil litigation follow. He answered that such a payment could indeed prejudice the accused person’s case as it would be a tacit acknowledgement of guilt and could possibly be used as evidence of guilt.
There is danger for everyone when biblical standards of justice are abandoned, and it is impossible for churches not to abandon them if they opt in to the National Redress Scheme.
Scheme realities: Survivor focused
The National Redress Scheme is “survivor focused”. This might seem a statement of the obvious. After all, the purpose of the Scheme is to redress survivors for the abuse they have suffered in institutions, including Christian churches, so of course it is focused on survivors.
However, “survivor focused” does not adequately describe the Scheme’s bias. It is in fact survivor obsessed, to the extreme detriment of the accused. Consider several comments from Scheme documents:
Subclause 10(2) provides that redress under the Scheme should be survivor-focussed.15
The Scheme is to be supportive, survivor-focussed and non-legalistic and decisions will be made expeditiously.16
This flexibility allows the Scheme to meet its objective of a survivor-focussed and expedient process, with a lower evidentiary threshold, to ensure a survivor experience less traumatic than civil justice proceedings.17
This amendment will ensure the Scheme remains survivor focused and trauma informed by maintaining the principles that the Scheme be a low threshold and non-legalistic process for survivors who have already suffered so much.18
all redress should be offered, assessed and provided with appropriate regard to the needs of particularly vulnerable survivors. It should be ensured that survivors can get access to redress with minimal difficulty and cost and with appropriate support or facilitation if required.19
Notice that there is no counterbalancing focus by the Scheme on the accused. There is no expressed interest in justice for those institutions and those individuals within them who stand accused and consequently stand to lose wealth, reputation and more. This total lack of interest in, and even contempt for, the welfare of the accused is especially alarming when it comes from the body that will judge without review or repeal the reasonable likelihood that the institution is guilty of abuse.
The Scheme is like a prosecutor who is invested with the power to hand down verdicts and pronounce sentences. A church is as likely to get fair treatment from the Scheme as Joseph was from Potiphar after he believed his wife’s story of attempted rape.
The Scheme is so intensely focused on achieving “justice” for survivors that it denies principles and processes of justice due to those who are accused. And it does so with offhanded contempt for the accused. This contempt is evident from the Royal Commission’s statement that
redress should be survivor-focused – redress is about providing justice to the survivor, not about protecting the institution’s interests20
Not even, it seems, if the institution’s interests are to protect the good name of an innocent person in its midst who has been falsely accused—or if its interests are to protect its members’ funds from being plundered by a fraud posing as a survivor.
A similar contempt for the accused is evident in the Royal Commission’s response to the concerns that institutions had about insurance cover. For while their public liability insurance would generally cover costs involved in a civil case, it definitely will not cover claims awarded under the Scheme with its much lower standard of proof. One law firm explains:
Some institutions argued that a higher standard of proof should apply because insurance companies will not allow the institutions to recoup their losses if the threshold is as low as ‘reasonable likelihood’. This concern was dismissed as irrelevant in the context of the overarching goal which is to provide a survivor-focused redress scheme to survivors of institutional child sexual abuse.21
The Royal Commission blithely “dis-missed as irrelevant” the troubles of the churches concerning insurance cover because the Scheme is “survivor-focused” and has been set up for the sole purpose of providing payments with maximum ease to those who claim to be survivors.
Scheme realities: Standard of proof
The standard of proof required by the Scheme is extremely low. It is not “beyond reasonable doubt”, as in criminal law. It is not “balance of probabilities”, as in civil law. It is “reasonable likelihood”, as in … kangaroo-court law.
The National Redress Guide defines the Scheme’s standard of proof as follows: “For the purposes of the Scheme, reasonable likelihood means the chance of the person being eligible is real, and is not fanciful or remote and is more than merely plausible.”22 If you do not find this a helpful definition of “reasonable likelihood”, it might be because it is somewhat vague and tautological: Under the Scheme, a person is eligible if his claim meets the standard of proof and that standard is that there is a real chance that he is eligible!
This so-called standard of proof could hardly be better for the accuser … and hardly be worse for the accused. But then, the Scheme has never pretended that it has any interest in justice for the accused. It is proudly “survivor focused”. Its only interest in the accused is that they pay up, and tug their forelocks while doing so. Although it misrepresents both kangaroos and courts, I repeat that this is a kangaroo-court standard of justice.
My standard of proof for this assertion is the criminal standard of “beyond reasonable doubt” and I call as witnesses the Royal Commissioners, the Redress Scheme and the Federal Parliament.
During the course of the Royal Commission into Institutional Responses to Child Sexual Abuse, various persons and institutions argued that the standard of proof used under the Scheme should be the civil law standard of the balance of probabilities. The Royal Commissioners rejected this suggestion on the grounds that many claimants would have absolutely no evidence to support their allegations and no prospect of providing such evidence. They state in their Redress and Civil Litigation Report:
We also set out another argument against adopting a standard of proof used in civil litigation: past experience suggests that, even if a scheme purports to apply the civil standard of proof, it seems that a lower standard is actually applied, at least in determining whether or not the abuse occurred. Often there is no ‘witness’ other than the applicant and there is no other ‘evidence’ against which an applicant’s allegation of abuse can be balanced. The decision for the decision maker is, essentially, simply whether or not, or to what extent, they believe the applicant’s allegations.23
According to the Royal Commission itself, in many cases—that is, often—there will be no proof at all that the claimant is telling the truth and no proof at all that any abuse actually occurred. By any standard of justice except revolutionary and/or communist standards, shouldn’t such claims be dismissed out of hand? Not according to the Royal Commission. In these numerous instances, the Scheme decision makers will simply go by what they believe. Their decisions will be based on their feelings. This is the standard of proof that the Scheme is operating under. Worse, this is the standard of proof to which Christian denominations and churches are voluntarily kowtowing!
Evidence, cross-examination, and investigation will be conspicuous by their absence under the Scheme. To quote the Royal Commissioners again:
the redress scheme will not have ‘evidence’
there will have been no adversarial process or hearing
the redress scheme will not be con-ducting investigations into the institution beyond the matters necessary to deter-mine the applicant’s eligibility for redress and to assess any monetary payment.24
Joining its testimony to the Royal Commissioners’, the Federal Government also verifies that the standard of proof required by the Scheme is next to no standard at all. Without apparent embarrassment, the Government states in its Explanatory Memorandum to the Bill:
The Scheme has a low evidentiary threshold and is based on a ‘reasonable likelihood’ test. These aspects of the Scheme are important and provide recognition and redress to survivors who may not be able or may not want to access damages through civil litigation.25
Justifying the decision to disallow any appeal against decisions made under the Scheme, the Government states:
Decisions under the Scheme will not be subject to judicial review under the Administrative Decisions Judicial Review Act as the Scheme is not intended to be legalistic in nature and is intended as an alternative to civil litigation with a low evidentiary burden. Providing survivors with judicial review mechanisms would be overly legalistic, time consuming, expensive and would risk further harm to survivors.26
The Scheme “is not intended to be legalistic in nature”, we are told, and for survivors it certainly is not. It requires of them a very “low evidentiary burden” indeed. But for churches it is highly legalistic—let them try to protest their innocence or have a claim reviewed or withhold a redress payment and they will soon discover just how legalistic the Scheme is.
The National Redress Scheme bears witness to its own disregard for the need for proof. It states in its National Redress Guide:
In determining reasonable likelihood, the Operator must also consider that the Scheme was established in recognition that some people:
have never disclosed their abuse and disclosure to the Scheme may be the first time they have done so
would be unable to establish their presence at the institution at the relevant time (the institution’s records may have been destroyed, record keeping practices may have been poor, or the survivor may have attended institutional events where no attendance record would have been taken), and
do not have corroborating evidence of the abuse they suffered.27
The meaning of this statement can be teased out as follows: The Scheme Operator must make his assessments not only on the basis of the evidence but also on the basis of the purpose of the Scheme, which is to provide maximum redress with minimum fuss to those who claim to be survivors. Consequently, the lack of proof is to be viewed as a type of proof.
Some people will not be able to provide any proof at all—but the Scheme has been set up expressly to help such people. So the Operator must help them by not holding it against them that: (1) they cannot name anyone they told about the abuse at any time after it occurred; (2) they cannot establish that they were actually present at the institution at the time that the abuse supposedly occurred; and (3) they cannot establish that they ever experienced any abuse at all. Bearing in mind the purpose of the Scheme, the Operator must not disbelieve these self-proclaimed survivors or allow them to be disadvantaged in the progression of their claim.
By some curious Redress Scheme logic, nothing could better establish the “reason-able likelihood” that “the chance of the person being eligible is real” than the fact that the person has made an allegation that he cannot in any way verify. Confused? Don’t be. It simply means an alleged survivor does not actually have to provide any proof whatsoever before he is believed by the Scheme Operator, who will proceed to impose a hefty financial penalty on some hapless church that voluntarily opted in to the Scheme naively thinking that the Scheme had something to do with justice.
Arguing before the Royal Commission against adopting “plausibility” or “likelihood” as standards of proof, an independent commissioner for the Melbourne Response, a Catholic redress scheme for victims of abuse, stated: “As both of those standards are lower than the [civil law] balance of probabilities, they contemplate that a claim would be accepted even if it is more likely than not that the abuse did not occur.”28 This is an astute observation and a neat summation of the problem of proof: Under the Scheme’s standard of proof, the standard of “reasonable likelihood”, even if it is more likely than not that the abuse did not occur, the claim is likely to be accepted.
Scheme realities: False allegations
As mentioned earlier, the Church Health Pastor claimed that, with a possible 2% exception, survivors do not make false accusations. Survivors, many of whom are defined as such solely on the basis of their claim to have been abused, simply do not bear false witness against those whom they accuse. If true, this would make them a unique category of human being, virtually untouched by the fallen nature that so troubles the rest of the human race. But in fact, there is no such category of human being, and it is naïve and dangerous to think that there is.
The Royal Commission, the National Redress Scheme and the Federal Parliament all take the possibility of false accusations far more seriously than the Church Health Pastor.
The Royal Commission itself tacitly acknowledges that some survivor accounts may be false in whole or in part. Its website contains a “Narratives” page with 78 sub-pages containing 3,956 stories by survivors. It introduces these anecdotal stories with this comment:
Over 8,000 survivors or people directly impacted by child sexual abuse in institutions attended private sessions at the Royal Commission and shared their experiences and recommendations with Commissioners. Many gave consent for their accounts to be published as short narratives.
The purpose of the narratives is to give a voice to survivors, inform the community and ultimately help make institutions safer for children. …29
You might think from this statement that all the stories are factual and reliable. Indeed, that is the implication of the claim that these are narratives from “people directly impacted by child sexual abuse” who are sharing “their experiences”, which the Commission has published to “inform the community”, etc. Indeed, the Commission’s use of the term “survivors” to describe the people who told their stories implies that all 8,000 were genuine victims of abuse telling us genuine stories that deserve to be believed. But in fact, the survivors who related these stories were not required to swear to tell the truth, and their accounts were uncritically accepted as if they were true.
Nonetheless, the Royal Commission goes on to warn readers 3,956 times that the stories have not been corroborated in any way. This disclaimer has been appended to the end of every narrative:
Disclaimer: This is the story of a person who spoke with a Commissioner during a private session of the Royal Commission into Institutional Responses to Child Sexual Abuse. Real names of individuals have not been used, except of public figures in a public context. The information the person provided was not evidence, the person was not a witness, and did not need to take an oath or affirmation, although they were expected to tell the truth. Nothing in this story is a finding of the Royal Commission and any views expressed are those of the person, not of the Commissioners. (my emphasis)30
If the Commission were confident that these narratives are true, it would not append such a disclaimer to every one of them. However, the Commission cannot and will not vouch for the truthfulness of the narratives, presumably because it under-stands that some narrators are mistaken, while others are misled, and yet others are mendacious.
Perhaps the Prime Minister and the Leader of the Opposition should have considered the Royal Commission’s cautious disclaimer before quoting several narratives as if they were gospel and using them during the National Apology to impugn Australian institutions as hotbeds of child sexual abuse.
In 2017, the council assisting the Royal Commission, Gail Furness, acknowledged that some survivors had made false allegations against Cardinal George Pell, whom the Commission had interrogated for many hours:
Furness also casts doubt on other allegations promoted by journalists.
For instance, one witness said he’d gone to Pell’s presbytery in Ballarat one weekday to warn about a paedophile priest, but Pell had chased him away. (Almost no journalist revealed this witness was himself later jailed for abusing children.)
Furness concludes this claim “cannot be resolved”, since Pell was not living at that presbytery and at that time of day was probably at work. She also casts doubt on a third claim, which made headlines in the Sydney Morning Herald and on the ABC.
One witness said he’d overheard Pell joke about Gerald Ridsdale with a fellow priest at a funeral mass in Ballarat, saying “Haha I think Gerry’s been [having sex with] boys again”.
In fact, says Furness, there was no such mass on the date the witness gave and the priest Pell allegedly joked with was then living in Horsham and denied Pell would say such a thing anyway.31
Here are survivors who have been found out making false allegations. Some of these false allegations may have been honestly made. The accusers might have honestly misremembered, or they might have been “helped” by therapists or psychologists to “recover” memories of abuse that they never really experienced, or they might have succumbed to the hype surrounding the Royal Commission and invented fantasies that they half believed. But a sincerely-held falsehood can ruin an innocent man’s life just as easily as a knowingly-fabricated one. It is of no comfort to Cardinal Pell that some of the alleged survivors who falsely accused him may have done so with sincerity and genuine conviction.
Concern that not all survivors ought to be believed is not confined to the Royal Commission. The legislators who drafted the Bill to establish the Redress Scheme also express reservations.
The Explanatory Memorandum to the Bill, for example, states that people can only claim redress under the Scheme if they are Australian citizens or permanent residents. The Memorandum then explains,
This eligibility requirement is included to mitigate the risk of fraudulent claims … Removing citizenship requirements would likely result in a large volume of fraudulent claims … 32
People who make fraudulent claims necessarily make fraudulent allegations. They target innocent people and bear false witness against them. The Bill recognises that it could potentially face “a large volume of fraudulent claims”, which is to say, a large number of swindlers pretending to be survivors. So much for the notion that people never lie about such matters!
Concerning the need to deter false claims, the legislation proposes that false claimants could face the prospect of a civil penalty. The Memorandum to the Bill explains:
This civil penalty is justified to ensure that [the] Scheme is adequately protected against the risk of fraudulent applications. Large volumes of false claims from organised groups could overwhelm the Scheme’s resources … 33
Large volumes of false claims? How could the commissioners and the legislators entertain such a thought? Surely they know that survivors don’t lie! In fact, despite their overwhelming goodwill towards victims and alleged victims of abuse, they do not know that. What they do know is that easy money is a lure for liars. And they also know that they are offering (albeit mostly at the institutions’ expense) large amounts of money in return for small amounts of “proof”. This is a recipe for fraud.
In yet another acknowledgement that the prospect of false claims is very real, the Scheme will not reveal the full guidelines it will follow in granting redress claims. The Explanatory Memorandum states:
The reason for omitting detailed guidelines is to mitigate the risk of fraudulent applications. Providing for detailed guidelines would enable people to understand how payments are attributed and calculated, and risks the possibility of fraudulent or enhanced applications designed to receive the maximum redress payment under the Scheme being submitted.34
The likelihood of someone being prosecuted for making a false claim is remote. For the standard of proof that will encourage false claims is the same standard that will make it nigh impossible to show that they are false. Nonetheless, the Scheme’s attempt to deter false claims is an acknowledgement that false claims will be a pressing problem.
The Church Health Pastor has been urging the churches of her denomination to opt in to the Scheme on the grounds that there will be next to no false claims. I fear the churches will soon discover to their immense cost (the least of which will be financial) that they have been misled.
- “Participation in the National Redress Scheme Frequently Asked Questions: Sheet 2”
- NT News, 21 February 2018 – www.ntnews.com.au/news/crime-court/alleged-horror-attack-on-nt-toddler/news-story/d67b11a73f5af9f29aef7989d05edc40)
- The Australian, 27 March 2018 – www.theaustralian.com.au/news/nation/raped-aboriginal-boy-4-flown-to-hospital/news-story/c4c95cc4261652978022ef28bca05bd0)
- Private Sessions Narratives, “Reynold’s story”, Royal Commission into Institutional Responses to Child Sexual Abuse – https://www.childabuseroyalcommission.gov.au/narratives/reynolds-story?category=All&field_private_session_gender_value=All&field_state_value=All&field_decade_value=All&field_government_value=All&field_atsi_value=All&next=1
- “Teen who groped Surfers Paradise swimmers avoids jail” ABC News, 26 April 2017 – abc.net.au/news/2017-04-26/teenager-gets-probation-eight-women-groped-surfers-paradise/8472758
- “Teenager avoids jail for sex attacks due to ‘cultural differences’”, Yahoo7 News, 26 April 2017 – au.news.yahoo.com/teenager-avoids-jail-for-sex-attacks-due-to-cultural-differences-35171584.html#page1
- Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report, Commonwealth of Australia 2015, pp. 9 & 133
- “The royal commission’s dodgy sex abuse stats”, Herald Sun, 10 February 2017 – www.heraldsun.com.au/blogs/andrew-bolt/the-royal-commissions-dodgy-sex-abuse-stats/news-story/2ef6c92844cb268a4f68e111ede17c3d
- “Muslim refugee, 20, who raped a boy, 10, in his Sydney home says what he did ‘is not a crime because it is acceptable in his homeland’”, The Daily Mail (UK), 1 September 2018 – dailymail.co.uk/news/article-3767301/Muslim-refugee-20-raped-10-year-old-boy-bedroom-claimed-culturally-acceptable-sexually-assault-children-homeland.html
- Redress and Civil Litigation Report, op. cit., p. 2
- ibid, p. 46
- ibid, p. 390
- Explanatory Memorandum for the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018, The Parliament of the Commonwealth of Australia, House of Representatives (Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP), pp. 123-124
- Redress and Civil Litigation Report, op. cit., p. 2
- Explanatory Memorandum, op. cit., p. 18
- ibid, p. 10
- ibid, p. 101
- ibid, p. 4
- Redress and Civil Litigation Report, op. cit., p. 133
- ibid, p. 9 & 133
- “Redress Scheme Update”, Shine Lawyers, Queensland, copied from website 11.00 am, Tuesday 20 November 2018 – www.shine.com.au/service/abuse-law/royal-commission/redress-scheme-update?gclid=EAIaIQobChMIzMOmnPfh3gIVExSPCh1jKQ8nEAAYAiAAEgI9UPD_BwE
- National Redress Guide, Version 1.01 – Released 5 November 2018, “2.2.1 What does ‘reasonable likelihood’ mean?” (available on Department of Social Services website only) – http://guides.dss.gov.au/national-redress-guide/2/2/1
- Redress and Civil Litigation Report, op. cit., p. 371
- ibid, p. 390
- Explanatory Memorandum, op. cit., p. 38
- ibid, p. 101
- National Redress Guide, op. cit.
- Redress and Civil Litigation Report, op. cit., p. 369
- Private Sessions Narratives, op. cit. – www.childabuseroyalcommission.gov.au/narratives?category=All&field_private_session_gender_value=All&field_state_value=All&field_decade_value=All&field_government_value=All&field_atsi_value=All&next=1
- Private Sessions Narratives, ibid – disclaimer at the end of every story, for example at www.childabuseroyalcommission.gov.au/narratives/fayes-story?category=All&field_private_session_gender_value=All&field_state_value=All&field_decade_value=All&field_government_value=All&field_atsi_value=All&next=1
- “The royal commission’s dodgy sex abuse stats”, op. cit.
- Explanatory Memorandum, op. cit., p. 20
- ibid, p. 31
- ibid, p. 10