Law must respond properly to sexual abuse of children in Catholic schools
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The time has come to change the question about the scoping report on the sexual abuse of pupils in Catholic run schools and the solutions it has proposed for it.
We have been offered what has become an almost standard response to the problem. The government will set up a statutory inquiry and it will discuss with the stakeholders, among other things, the question of redress.
Given the speed with which previous such inquiries have proceeded there is a real possibility that many victims will have passed before it gets going and or more likely by the time it gets completed.
Given the apparent unwillingness of the Catholic Church and its associated religious orders to fully pay up what it promised in a previous process of redress for the Mother and Baby Homes the notion that it might be more forthcoming this time around is naive.
And it isn’t because of a shortage of wealth or assets. In 2022, for example, those of the Spiritans stood at €165 million.
So the shortcomings of this conventional response are obvious. But there is another way of responding. This is to look at the nature of the accusations made against the religious orders. These are not simply allegations about misbehaviour. They are allegations about criminal behaviour. It is a criminal offence to rape children. It is also a criminal offence to encourage and conceal this behaviour.
It is apparent from the reports of the victims that the members of the orders involved knew about the sexual abuse of their colleagues and through their responses — largely denial and concealment — facilitated the continuation of the commission of these kinds of crimes.
The evidence in the scoping report shows that this is the behaviour of a criminal organisation and needs to be treated as such. It is a perspective that we have been reluctant to apply despite previous evidence that religious orders have been involved in the past in other kinds of criminal behaviour.
The falsification of birth certificates, the alleged selling of babies to adoptive parents in the United States, and the concealment of previous incidents of sexual abuse are pertinent examples. We are dealing with a criminal organisation and we need to use the resources of the criminal law to respond appropriately to it.
There are obvious problems with this course of action. About half of those accused are known to be deceased and hence unable to be prosecuted. That means that there is still a substantial number that could be prosecuted though the benefits of such prosecutions would be massively outweighed by the re-traumatision of victims and the length of time that prosecutions seem to take in Ireland.
There may also be an issue of finding legal personnel to deal with such prosecutions who were not educated in many of the private schools currently under the spotlight. The approach of restorative justice, presently popular in these discussions, can be equally problematic.
It is well intentioned and can be a progressive response, but it is mainly used to divert minor young offenders from the penal system. Moreover, in its most conventional form it requires the participation of offenders.
“In restorative justice," the Penal Reform Trust tells us, “victims are given a chance to ask questions and to make the offender aware of the effect of their actions."
If the offenders are not present it is hard to see how the process can be most productively employed. This is, perhaps, why the report tells us that there is little support among survivors for a restorative justice approach to the problem.
However there is a way out. This is to move the debate from a focus on particular offenders and to look at the organisations that facilitated such offending.
If we treat what went on as criminal and the organisations involved as criminal in nature, this makes it a matter for the Criminal Assets Bureau.
The assets of the religious orders were used to cover up what appears to be criminal behaviour, through, for example, the expense of relocating offenders and through private and undisclosed settlements with some victims.
Their professed aim was to protect and educate children. Their achieved aim was to brutalise and rape many of them.
It is here that the Criminal Assets Bureau comes in. If it can show the High Court that the assets of the Church are suspected to be the product of criminal activity and it only has to do this to a civil rather than a criminal standard of proof, then it gets around many of the legal problems that other forms of action might run into.
Given the depth of information that is in the scoping report this should not be difficult to do. This would then enable CAB to seize the assets of the organisation such as property and realise their value through selling them, an approach that has been successfully used against other forms of criminal organisation such as drug dealing.
This would guarantee that there are sufficient funds available for an adequate system of redress and one which makes no call on the resources of the state as many of the current systems of redress have done. It will also show that — despite considerable public scepticism — no matter how powerful the organisation may be, its criminal behaviour should have real punitive consequences.