Suffer the little children?

Rather like asylum seekers, the prep school sex abuse scandal that has embroiled Governor-General Dr. Peter Hollingworth has generated a great deal of heat but very little light. As Graham Young recently suggested in an On Line Opinion article, quite a few of those attacking Dr. Hollingworth appear to be using the issue cynically to advance a republican or "pay back Howard" agenda.

However, at least some of the critics seem genuine and make points worthy of serious consideration. Alan Ramsey, for example, published a piece in the Sydney Morning Herald of 9 February headlined "Hollingworth has nowhere to hide". Ramsey thinks that it "is inconceivable that Hollingworth can survive, however long it may be before he inevitably resigns as Governor-General."

The nub of Ramsey's opinion is that Hollingworth has been spineless, was guilty of moral cowardice, and was complicit in a 10 year cover-up of serious sexual abuse of children at a prep school in his archdiocese. According to Ramsey, "in defending himself, Hollingworth could only fall back on legalisms and grubby matters of money. 'I accepted it was imperative that insurance coverage not be jeopardised,' he (Hollingworth) said, acknowledging the real world but grievously wounding his moral authority. As he later added, so lamely yet damningly: 'I am sorry that legal and insurance considerations to some extent inhibited our taking a more active role and more overtly expressing the church's concern for the physical, emotional and spiritual welfare of those affected by the actions of Mr Guy'."

Ramsey, and presumably others who regard his actions (or rather inaction) as reprehensible, seem to be appalled that Dr. Hollingworth arguably put the financial health of his archdiocese ahead of pastoral care and compassion for the victims of abuse and their families. That is a legitimate criticism, but it fails to grapple with the very real dilemma in which church leaders find themselves when faced with allegations of actionable wrongdoing by employees and office-bearers for whom they are ultimately responsible.

As a society we have only begun facing up to the reality and extent of sexual abuse of children over the last 10-15 years (and political correctness has meant that Aboriginal society still has not done so). When the Toowoomba Preparatory School scandal broke in 1990, that process had scarcely begun. Most religious and educational institutions now have detailed and reasonably well-considered protocols for dealing with sexual abuse allegations, but that was not generally the case in 1990. Dr. Hollingworth probably had little to guide him other than his own conscience and the advice of the Church’s lawyers.

Sexual abuse allegations typically give rise to a range of complex, and in some respects competing, imperatives. First, the organization has pastoral care obligations to the alleged victim. These are particularly pressing where the alleged victim is a child and the employer organization is a church or school. Secondly, the organization owes duties as an employer to treat its accused employee fairly, by honouring the fundamental presumption of innocence and ensuring that there is a fair enquiry process. However, where the alleged victim is a minor, the law imposes a mandatory requirement that the allegation be reported to police or child welfare authorities in any event. Thirdly, and despite its duty to treat the accused employee fairly, the organization may well find itself in a position where, if the allegation cannot quickly be disproved, it is obliged to remove the accused employee from any situation where other children might be placed at risk. That could involve suspension from duty, even though such a step may result in irreparable damage to the accused employee’s career and reputation. This could occur even where the allegations ultimately prove unfounded. Last, but by no means least, the organization must consider its legal liability situation. That involves taking notice of the legal obligations imposed by the organisation’s indemnity insurance policy.

However, the events at Toowoomba Preparatory School in 1990 did not involve all of the above competing imperatives, and so arguably should have been easier for Dr. Hollingworth and other archdiocesan administrators to handle. The accused employee committed suicide shortly after being charged, so there was no need to consider issues of procedural fairness towards him, nor any requirement to protect other children from the possibility of being further abused by him. One might think that a contest between, on the one hand, the Archbishop’s pastoral care obligations to a child at an archdiocesan school, and on the other, the demands of an insurance company, would be easily resolved. God must surely prevail over Mammon. Unfortunately, it isn’t as easy as that.

In these litigious days, such situations pose a very real threat to the solvency and sometimes the very survival of even very large religious organisations. Although the Anglican and Catholic churches are asset rich, they are illiquid institutions, and certainly could not afford to fund large damages payouts from their own resources. They have no practical choice but to rely on insurance cover. However, commercial insurers invariably insert clauses in their policies providing that the insurance cover may be voided if the insured organisation makes any admission of liability. Accordingly, the then Archbishop Hollingworth would have been correctly advised by his lawyers that, if he exercised the compassion and pastoral care which his conscience no doubt dictated, the result might well be that his archdiocese would be forced to pay a damages bill from its own resources which could eventually run into many millions of dollars. The plaintiff who recently received a damages award in excess of $800,000 was only one of at least 20 girls allegedly abused by the deceased boarding master. The very financial survival of the Brisbane Archdiocese could have been in question, and thus of the many important charitable and religious functions it fulfils.

The reality is that Archbishop Hollingworth was undoubtedly severely constrained by the terms of the archdiocese’s insurance policy. Remember that he had only been archbishop for a few months when the affair broke with Guy's charging and suicide, so the choice of insurance cover had not been his. Hollingworth was faced with a "Hobson's choice" in the immediate term. The extent of the Church’s invidious position is illustrated by the fact that I understand its insurers insisted that it continue to deny liability even after the trial of the action commenced. That stance contributed to an award of exemplary damages which, somewhat ironically, the Church was required to bear from its own resources because the insurance policy did not cover liability for exemplary damages!

Tragically, the experiences of those involved with handling sexual abuse allegations suggest that many victims initially have no desire to sue their church or school: they just want to be listened to sympathetically and taken seriously. Paradoxically, the insurers’ ‘hard-nosed’ approach may in some cases provoke litigation where a more compassionate approach might have avoided it.

Although Archbishop Hollingworth may not have had any real choice but to acquiesce in the course of action dictated to prep school authorities by the insurer, he did have choices in the longer term. In the wake of the succession of sexual abuse scandals that have come to light in all churches over the last decade, one would hope that, in addition to developing sexual abuse protocols, church administrators are also reviewing their insurance cover. In particular, churches should be considering setting up mutually funded and controlled litigation defence bodies, a little like the various medical defence unions, rather than relying on purely commercial insurers. Major medical defence insurers (e.g. United Medical Protection Limited) are mutual funds owned by the doctors who insure with them. Their boards include eminent medical specialists. They are specifically charged not only with achieving the best commercial settlement for insured doctors subject to damages claims, but must also keep in mind other important values, especially the critical importance of preserving the doctor's professional reputation. As a result, medical defence unions will often settle litigation at a fairly early stage to preserve the doctor's reputation where it is fairly clear that he/she made a mistake. In the same situation, a purely commercial insurer might well take the case "down to the wire" to extract the lowest achievable commercial settlement.

A religious mutual defence fund would presumably consider not only the church's public reputation, but also its pastoral care obligations. It could be set up and funded with a charter requiring it to assess quickly the veracity of claims of sexual abuse by clergy and others, and to settle such claims quickly and on generous terms where the claims appeared to be well-founded. The church would then be free to act according to the dictates of conscience and Christian teaching, without needing to fear that by so doing its financial survival would be in jeopardy. Any organisation with children under its care is inevitably a magnet for paedophiles, and the occasional one will sneak through even the most stringent vetting system. That is why specially designed insurance arrangements are needed, to protect against unexpected large claims while allowing churches to fulfil their obligations of Christian love and charity.

The Catholic Church already effectively enjoys the benefit of such a mutual insurance fund. All its insurances are handled by Catholic Church Insurance, a wholly Church-owned company. It can and does take cognisance of the Church’s pastoral care obligations in relation to any insurance claim, although it remains subject to commercial constraints because of international re-insurance arrangements.

Dr. Hollingworth is simply unfortunate that he was in the chair when the ‘excreta’ first began hitting the fan. He should not be condemned for that, and it certainly provides no basis for suggesting that he should resign as Governor-General. However, if it became apparent that he had failed to take constructive steps to reform the Church's handling of such matters during his stewardship of the Brisbane Archdiocese over the 12 years since the Guy matter came to light, that would be a different matter.

I am not suggesting that misdeeds in a prior career, for which a Governor-General was responsible only in a hierarchical sense, should operate as a disqualification for vice-regal office. Such a standard would be particularly ironic in Australia, where Westminster principles of Ministerial responsibility have become almost meaningless (witness the Howard government’s current attempts to blame on “incompetent bureaucrats” their misleading of the public over the issue of whether asylum seekers threw children into the ocean). However, this is not an issue of mere “command line” responsibility. As Archbishop of Brisbane, Dr. Hollingworth bore a personal moral responsibility to ensure that proper measures for dealing with child abuse were put in place in his archdiocese. If the truth is that he instead performed a latter day imitation of Pontius Pilate, then to my mind (and I suspect for a majority of Australians) that would establish moral unfitness to fulfil the office of Australian Head of State. On that question the jury is still out.