Is the Ellis Defence moral?

On 26 July 2005, ABC News reported, "The Supreme Court has been told the Catholic Church cannot be sued for the alleged actions of a priest because the priest had a contract with God, rather than the church."

That was not the only legal barrier that confronted John Ellis when he asked the Court for an extension of the limitation preventing him from suing the Catholic Church for damage he had suffered as an altar boy sexually abused by Aidan Duggan, an assistant priest in the Sydney parish of Bass Hill. As it happened, the Church did not bother to dispute Mr Ellis' accusation of abuse for it found a defence based on a neat legal technicalitythat led Mr Ellis' lawyer to conclude that, guilty or not, the church is "immune from suit". Its apparent immunity is down to what has become known as "the Ellis defence".

The Greens MP David Shoebridge has recently introduced a bill to negate this defence in NSW. Strangely, or perhaps not so strangely, neither the bill nor the Ellis defence itself has received much media attention. Googling "Ellis defence" hits more references to doubts about the legality of the execution of Ruth Ellis, the last woman to be hanged in the U.K., than about the brick wall encountered by John Ellis when he sought recompense in court.

The low level of interest is strange because the steps in the Ellis saga, as outlined by David Shoebridge in his adjournment speech in the NSW parliament on 14 September 2011 would seem to be irresistible to lovers of intrigue. As Mr Shoebridge picks up the story:

"In 2004 the assistant priest died and his estate left no assets against which the plaintiff could recover damages. Also in that year Mr Ellis brought a common law claim against the Trustees of the Roman Catholic Church and against His Eminence Cardinal George Pell, Archbishop of Sydney, in relation to the abuse he had suffered. The trustees were appointed under the Roman Catholic Church Trust Property Act 1936, a New South Wales Act that establishes a trust that holds all the property of the Catholic Church in this State—property that has been estimated to be worth billions of dollars."

Presumably, Mr Ellis had already become aware that he needed to sue the Trust rather than the Church because, in spite of what members of the public might assume, the Catholic Church does not exist as a legal entity. What is mistakenly regarded as the Catholic Church is an unincorporated association of parts that share some common objectives but retain their separate identities. As Cardinal Pell explained in The Australian on 4 November 2011:  

 "The Catholic Church is not like a corporation with one basic structure for all its activities. It is a large and diverse community consisting of individuals, unincorporated associations and different legal entities. There are parishes, religious orders, lay associations and many different groups providing services in education, health and welfare. There is a wide variety of structures each with their (sic) own areas of activity and responsibility."

The judge in 2004-05 presumably had little appreciation of Cardin Pell's view for, as Mr Shoebridge continued, "The trial judge in the Supreme Court initially found that the trust could be sued by Mr Ellis in relation to the abuse and granted him an extension of time to allow him to pursue his claim. The judge also held that as Cardinal Pell had not been appointed to that position at the time of the abuse he was not responsible for the abuse and therefore not able to be sued."

Neither party was happy with this: the Trust appealed the former decision and Mr Ellis the latter.

Let Mr Shoebridge take up the story again: "In its appeal the trust conceded that an arguable case had been established that the abuse had occurred. However, it alleged that the Catholic Church did not exist in New South Wales as a legal entity. The trust told the court that although it holds all of the Church’s property—and had so at the time that Mr Ellis’ alleged he was abused—that it was not responsible for the conduct of any member of the clergy…The trust submitted that, in effect, the church could not be sued as, in law, it did not exist.”

"Cardinal Pell maintained his position on appeal that he was not appointed at the time of the abuse. The cardinal who had been appointed at the time of the alleged abuse had since died, as had the alleged abusive clergy member. Cardinal Pell claimed Mr Ellis could not hold him responsible for the abuse…The Court of Appeal agreed with both the cardinal and the trust, and Mr Ellis’ case was dismissed entirely. The court also ordered that he pay the legal costs of the church and the archbishop."

Put simply (as Cardinal Pell would no doubt argue), the situation is that when a Catholic priest commits sexual abuse, it does not happen in the Catholic Church because there is no such thing. It happens instead in one of its unincorporated parts and therefore responsibility for its rests totally on members of that part, especially the perpetrator and those responsible for appointing or supervising him. That is to say, responsibility is completely limited to the parish, school, hospital or whatever is the unincorporated part in which it occurred.

As the trustees merely own the property within which the abuse occurred and have no responsibility whatsoever for appointing or supervising the perpetrator, they cannot be held responsible for the abuse he committed. Of course, victims are perfectly free to sue the perpetrator or the unincorporated part but they have no assets (the Trust has them all and anyway priests take a vow of poverty) so there is nothing to be gained by it.

It seems that where sexual abuse of children is concerned in NSW, the Catholic Church has two parts: one that does the damage and one that owns the wealth. And ne'er the twain shall meet. As Mr Shoebridge added: "Mr Ellis took his case to the High Court, which refused him special leave."

The situation now seems to be that in cases where accusations of sexual abuse can be sustained, the Catholic Church advises victims that if they sue, they will founder on the Ellis defence. Instead, it offers them a token sum in settlement provided they enjoin themselves to relinquishing all rights to further claims on the church. These sums are thought to seldom exceed a few thousand dollars, nothing like the millions of dollars awarded by courts in some countries to under-age victims of sexual abuse by priests, and laughably inadequate in comparison with the $850,000 said to have been awarded to the mature and professionally competent Kristy Fraser-Kirk for having been merely harassed by her boss at David Jones.

It's easy to sympathise with the Church's efforts to minimise the damages it must pay as it clearly would prefer to spend its wealth furthering its religious mission but it needs to take care that it doesn't cross the line which many Australians think marks where the crack of the whip stops being fair.  Listen to what the lawyer, Angela Sidrinis, had to say on ABC Radio National's Background Briefing on 7 March 2010:

"As your listeners may know, James Hardie tried to avoid its liabilities in this country by incorporating offshore. And there was a huge public outcry, and in the end the government stepped in and ensured that James Hardie put processes in place so that they couldn't avoid their liabilities here. The Catholic Church, in my view, in pursuing what we loosely call the Ellis Defence, is doing exactly what James Hardie did. But of course, what makes it worse is that James Hardie is unashamedly a company that seeks to make profit and to protect profit for its shareholders. The Catholic Church on the other hand, which constantly takes the moral high ground about what is right and what is wrong in our society, is conducting itself in the same way, but because of who the Catholic Church is, and who they profess to be, it becomes even more morally reprehensible and outrageous."

The Church must also be worried by a recent case in the U.K. in which the High Court rejected the its claim that its priests were not its employees. The BBC reported on 8 November 2011 that, "The High Court has ruled the Roman Catholic Church can be held liable for the wrongdoings of its priests."

As the presiding judge rather scathingly pointed out when summarising the relationship between the abuser priest and the Church, "He [the priest] was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as a representative of the church. He had been trained and ordained for the purpose. He had immense power handed to him by the defendants [the trustees of the Roman Catholic diocesan trust]. It was they who appointed him to the position of trust, which (if the allegations be proved) he so abused."

This does not establish that "The Catholic Church" in NSW is a single legal entity just as responsible for the evil as for the good done in its name by its "unincorporated associations". But it surely strengthens the case and makes it even harder to understand why the Court of Appeal and the High Court favoured Cardinal Pell's view that its wealth is beyond the reach of its victims.

Irrespective of what the law might say, it's a fair bet that the Catholic Church has a snowflake's chance in Hell of winning the approval of the average Aussie when it invokes the Ellis defence.