One legal expert has said that because there was only one key witness, there is a good chance Pell’s appeal will succeed
Cardinal George Pell remains in an Australian jail, pending the appeal of his recent conviction for child sex abuse.
His conviction has sharply divided public opinion, and has also shone a light on the difficulty of dealing legally with historical sexual abuse allegations, especially in a climate conditioned by decades of scandal.
The verdict in Pell’s case has raised serious questions about how a legal system can adapt to cope with a culture that places great and public store in the importance of believing victims.
Those questions are part of an emerging conversation about how the rights of the accused can be balanced with the public good that comes from encouraging victims to come forward, even when the abuse is alleged to have happened long in the past.
When victims are ignored, justice is denied, abusers go free, and other victims suffer in silence.
But, for justice to be served, it seems clear that some distinction must be made between hearing victims, and treating their allegations as legally probative and exempt from juridical scrutiny.
This problem is compounded as statutes of limitations are rolled back in many jurisdictions: once thought to be pragmatic concessions to the reality that evidence deteriorates and witnesses die, they are now seen by many as impediments to justice.
When judging the veracity of historical allegations becomes an exercise in choosing only between the word of the accuser and that of the accused, the right to due process is at risk of becoming moot, and the presumption of innocence of becoming a legal fiction; especially if the credibility of the accuser is placed formally beyond the reach of examination.
Often – as in Pell’s case – the victim is the only witness. Commentators have noted that Pell’s jury, and the public, had only limited information about the accuser and his background. His credibility, some have observed, although central to the court’s proceedings, was not allowed to be discussed.
Pell’s accuser offered a graphic account of being sexually abused by Pell in a busy Melbourne cathedral one Sunday morning in 1996. The accuser said another boy was abused at the same time; but that boy denied multiple times having been abused. Since he died in 2014, the court could not hear his testimony.
Absent any other witnesses, other factors were supposed to help the jury weigh the allegations:
Do the circumstances of time and place accord with the victim’s narrative?
Does the abuse fit within a recognizable pattern of other behavior or allegations?
Are there similarities between the allegations and other known cases of sexual abuse?
These questions are contextual and imperfect, but they have value.
There is, for example, hardly ever a one-time sexual abuser of children. An escalating pattern of behavior is nearly always apparent. Abuse also usually follows a period of “grooming behavior” in which the victim is gradually isolated physically and emotionally with the abuser. The act of abuse itself, and the circumstances of time and place, are often chillingly familiar; sexual abuse tends to follow distinct patterns.
Observers have noted that allegations against Pell fit none of those patterns.
Pell was convicted of sexually assaulting the victim twice: one encounter an incidence of groping in a hallway, the other, at which the other boy was present, was said to take place after a 10:30 Mass in Melbourne’s cathedral.
Pell is supposed to have managed to abuse the boys simultaneously, while still vested from Mass – something witnesses testified would have been nearly physically impossible for him to do. The event was said to have taken place in a public space at its most crowded time. Pell was shown to have rarely been in that place during the time frame alleged – during the six month window identified by the prosecution, Pell celebrated the 10:30 Mass only twice.
The cardinal is facing no other criminal charges. The attack appears to have been spontaneous, not preceded by any kind of grooming relationship. It is not alleged by experts to conform to any obvious pattern of predatory behavior.
Pell’s defence lawyer made the observation that “only a madman” would attempt to do what Pell has been convicted of doing in the time and place he was found to have done it.
As Judge Brian Kidd noted during this week’s bail hearing, there is no evidence that Pell is a madman.
While these factors were presented in court, they seem not to have overly influenced the jury.
But many commentators, including otherwise implacable critics of the cardinal, have been far less convinced by the evidence against him.
Some have questioned whether Pell’s public stature in Australia impacted his trial. The cardinal has been the subject of decades of close media scrutiny and criticism, not least for taking unflinchingly conservative Catholic positions in highly secularized society, and as the face of a Church synonymous with an egregious clerical sexual abuse crisis.
Anger in Australia over clerical sexual abuse is pervasive. Last year another archbishop was convicted of abuse related charges, only to be acquitted on appeal when a judge decided that anti-Catholic sentiment had played a role in his trial. Whether that was true in Pell’s case is now a subject of fierce debate.
Melbourne legal expert Jeremy Gans told The Guardian last week that because there was only one key witness, there is a good chance Pell’s appeal will succeed. But the debate around Pell’s conviction raises a question germane to a broader set of issues: In the climate of our time, what means are there — what will is there — to ensure that those accused of sexual abuse receive a fair trial on the merits of the evidence?
That question unanswered, Pell and his lawyers are appealing for justice. So too are victims of sexual abuse. In a changing culture, courts will have to find a way to do justice for them both.