Legal Irresponsibility and Institutional Responses to Child Sex Abuse

Penny Crofts   | Bio
Associate Professor at the Faculty of Law, University of Technology Sydney
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Abstract

The current Royal Commission into Institutional Responses to Child Sexual Abuse has demonstrated serious long-term failures to prevent and adequately respond to child sexual abuse by institutions. Rather than regarding the law as a system of responsibility, this article argues that it can be read instead as organising irresponsibility, drawing upon Scott Veitch’s ideas in Law and Irresponsibility. His key argument is that legal institutions operate as much to deflect responsibility for harms suffered as to acknowledge them. This article focuses on the ways in which the criminal justice system is complicit in organising irresponsibility for systemic failures through an analysis of the Royal Commission Case Study No 6: The responses of a primary school and the Toowoomba Catholic Education Office to the Conduct of Gerald Byrnes. Through concrete examples, this article analyses the ways in which criminal law organises irresponsibility through the individuation of responsibility and the emphasis upon subjective culpability. These practices ensure irresponsibility for actors for systemic failures.

References

1 Shurlee Swain, History of Australian Inquiries Reviewing Institutions Providing Care for Children (Royal Commission into Institutional Responses to Child Sexual Abuse, 2014).
2 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Interim Report: Volume 1 (2014) 1.
3 Robert Alexy, ‘The Nature of Legal Philosophy’ (2004) 17(2) Ratio Juris 156.
4 Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering (Routledge, 2007).
5 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study No 6: The Responses of a Primary School and the Toowoomba Catholic Education Office to the Conduct of Gerald Byrnes (2015).
6 For example, see Kathleen Daly, ‘Conceptualising Responses to Institutional Abuse of Children’ (2014) 26(1) Current Issues in Criminal Justice 5.
7 For example, see Brent Fisse and John Braithwaite, ‘The Allocation of Responsibility for Corporate Crime’ (1988) 11 Sydney Law Review 469; Brent Fisse and John Braithwaite, Corporations, Crime and Accountability (Cambridge University Press, 1993); Jonathon Clough and Carmel Mulhern, The Prosecution of Corporations (Oxford University Press, 2002); Celia Wells, Corporations and Criminal Responsibility (Oxford University Press, 2002); Angelo Capuano, ‘Catching the Leprechaun; Company Liability and the Case for a Benefit Test in Organic Literature’ (2009) 24 Australian Journal of Corporate Law 177.
8 Swain, above n 1.
9 Ibid, 8.
10 Swain asserts that the practice changed with the Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997) 162. Although sexual abuse was not specified in the terms of reference it was singled out for special treatment in the subsequent reports. Australian Senate Community Affairs References Committee, Lost Innocents: Righting the Record Report on Child Migration (Senate Printing Unit, 2001) 75; Senate Community Affairs References Committee Forgotten Australians: A Report on Australians Who Experienced Institutional or Out-of-Home Care as Children (Senate Printing Unit, 2004) 103; Leneene Forde, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (The Inquiry, 1999) iv, 87. The current Royal Commission also relies upon victim testimony, and has released an interim report with hundreds of pages devoted to summarising survivor testimony, Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, Interim Report Volume 2 (2014).
11 Swain, above n 1, 11.
12 Swain, above n 1, quoting John Torpey, ‘Introduction: Politics and the Past’ in John Torpey (ed), Politics and the Past: On Repairing Historical Injustices (Rowman and Littlefield, 2003) 1.
13 Jeffrey Olick, The Politics of Regret: On Collective Memory and Historical Responsibility (Routledge, 2007).
14 Scott Veitch, ‘Book Symposium: Author’s Responses to the Commentators’ (2009) 34 Australian Journal of Legal Philosophy 248, 248, Veitch quotes Tony Blair’s response to the inquiry into intelligence leading to the invasion of Iraq showing that there were no weapons of mass destruction: ‘For any mistakes made, as the report finds, in good faith I of course take full responsibility’.
15 For example, Scouts Australia was recently the subject of public criticism for a five-day delay in reporting an allegation of indecent assault to police. Scouts Australia asserted that this was due to a failure to ‘lack of understanding of Scout protocol and procedures by some leaders’, ‘Scout Leader Charged Over Alleged Indecent Assault of 14yo Girl, Delay in Incident Report’, Australian Broadcasting Corporation (online), 10 January 2016 . Scouts Australia had been a subject of the first case study undertaken by the Royal Commission in 2013, published in early 2014, in which the protocol and procedures by Scouts were criticised. Scouts had had more than two years to adjust protocol and procedures and train leaders, so claims of lack of ‘understanding’ are not persuasive. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study No 1: The Response of Institutions to the Conduct of Steven Larkins (2014).
16 Alan Norrie, ‘Simulcra of Morality? – Beyond the Ideal/Actual Antimonies of Criminal Justice’ in Anthony Duff (ed), Philosophy and the Criminal Law (Cambridge University Press, 1998) 101, 114.
17 HLA Hart, Punishment and Responsibility (Clarendon Press, 1968).
18 Peter Cane, Responsibility in Law and Morality (Hart, 2002).
19 Nicola Lacey, ‘Responsibility and Modernity in Criminal Law’ (2001) 9 Journal of Political Philosophy 249.
20 Veitch, above n 4, 28.
21 This is in accordance with the positivist notion separating legal and moral questions, see HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593.
22 Veitch, above n 4, 26. To construct this argument Veitch draws upon Alexy, above n 3.
23 The vexed issue of civil compensation would also benefit from an analysis from the perspective of irresponsibility practices, as there seem to be so many (legal) impediments to paying compensation. See Royal Commission into Institutional Responses to Child Sexual Abuse, Redress (14 September 2015) .
24 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, above n 5, 45.
25 Veitch, above n 4, 12.
26 Nydam v The Queen [1977] VR 430.
27 Veitch, above n 4, 22.
28 Ibid, 4.
29 Ibid, 48.
30 Ibid.
31 Lacey, above n 19.
32 Veitch, above n 4, quoting Stanley Milgram, Obedience to Authority (Harper and Row, 1974) xii.
33 Ibid, 11.
34 Andrew Ashworth, Positive Obligations in Criminal Law (Hart, 2013); Andrew Ashworth and Eva Steiner, ‘Criminal Omissions and Public Duties: The French Experience’ (1990) 10 Legal Studies 153; George Fletcher, Rethinking Criminal Law (Little Brown, 1978); AP Simester, ‘Why Omissions are Special’ (1995) 1 Legal Theory 311; Glanville Williams, ‘Criminal Omissions – The Conventional View’ (1991) 107 Law Quarterly Review 86.
35 The Royal Commission generally has demonstrated many claims of irresponsibility on the argument ‘it was not my job’. A notable exception in the face of great institutional opposition was by Bishop Wilson in response to John Nestor. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study No 14: The Response of the Catholic Diocese of Wollongong to Allegations of Child Sexual Abuse, and Related Criminal Proceedings, Against John Gerard Nestor, a Priest of the Diocese (2014).
36 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, above n 5.
37 Ibid, 18.
38 The parent also acted according to a division of labour. He ‘thought that the school would look after things’ and that the allegation of abuse would be investigated internally: ibid, 17.
39 Ibid, 19.
40 Ibid, 28.
41 Ibid.
42 Ibid, 19
43 Ibid, 20.
44 Ibid, 21.
45 Ibid, 34.
46 Hayes, Fry and Hunter were held responsible in a different sphere. They lost their jobs in December 2009 for the failure to respond appropriately to the abuse allegations. Ibid, 8.
47 Veitch, above n 4, 50.
48 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, above n 5, 7.
49 This point leaves aside issues of police failures to adequately respond to allegations of sexual abuse.
50 For example, Mary Midgley, Wickedness: A Philosophical Essay (Routledge, 1984, 2001 ed); Susan Neiman, Evil in Modern Thought (Princeton University Press, 2002).
51 Positive models of wickedness are the norm in popular fiction and include Satan, Iago, Dr Hannibal and villains in all the James Bond movies and comic book films. In contrast, it is very rare to come across a representation of evil as negative. An exception is the beautiful representation of evil in The Farthest Shore: Ursula Le Guin, The Earthsea Quartet (Penguin, 1968).
52 Although the legal system claims that subjective culpability is dominant, it is recognised that the exceptions to the rule far outnumber the rule itself. See Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (Cambridge University Press, 2014).
53 William Blackstone, Commentaries on the Laws of England: Book the Fourth: Of Public Wrongs (Clarendon Press, 1769) 21.
54 This interpretation of the general principle depends on a specific definition of mens rea as ‘guilty mind’. As Fletcher has noted the ambiguity of the term mens rea is framed by whether or not it is used in a descriptive or normative sense: Fletcher, above n 34, 398.
55 (1985) 15 A Crim R 203 approving the statement in Sherras v De Rutzen [1895] 1 QB 918, 921.
56 See also MacPherson v Brown (1975) 12 SASR 184, 189 (Bray CJ): ‘It is contrary to fundamental principles and the whole tenor of modern thought to judge a man in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or foresight, but by what a reasonable and prudent man would have intended, known or foreseen in the circumstances’.
57 Lin Chin Aik v The Queen [1963] AC 160,174 (Judicial Committee of the Privy Council). See also L Waller and CR Williams, Criminal Law: Text and Cases (Lexis Nexis, 9th ed, 2001).
58 Andrew Ashworth, ‘Taking the Consequence’ in Stephen Shute, John Gardner and Jeremy Horder (eds), Action and Value in Criminal Law (Clarendon Press, 1993) 123, 124: ‘If a subjectivist were drafting a new criminal code, all these cases would be made to depend on the defendant’s culpability rather than the outcome in a particular case. The effect of this on the form of the criminal law would be quite radical, since many offences are currently defined by reference to the result’. See also Fletcher, above n 34, 138.
59 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, above n 5, 27.
60 This is powerfully demonstrated in the case study of the YMCA: Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study No 2: YMCA NSW’s Response to the Conduct of Jonathan Lord (2014).
61 Ben Mathews and Kerryann Walsh, ‘Mandatory Reporting Laws’ in Alan Hayes and Daryl Higgins (eds), Families, Policy and the Law (Australian Institute of Family Studies, 2014) 131.
62 Wesley Crenshaw, Lucinda Crenshaw and James Lichtenberg, ‘When Educators Confront Child Abuse: An Analysis of the Decision to Report’ (1995) 19(9) Child Abuse and Neglect 1095.
63 Maureen Kenny, ‘Teachers’ Attitudes Toward and Knowledge of Child Maltreatment’ (2004) 28(12) Child Abuse and Neglect 1311.
64 A Goebbels et al, ‘Teachers’ Reporting of Suspected Child Abuse and Neglect’ (2008) 23(6) Health Education Research 941; Russell Hawkins and Christie McCallum, ‘Mandatory Notification Training for Suspected Child Abuse and Neglect in South Australian Schools’ (2001) 25(12) Child Abuse and Neglect 1603-1625.
65 Hawkins and McCallum, above n 64; Kenny, above n 63; Nadine Abrahams, Kathleen Casey and Deborah Daro, ‘Teachers’ Knowledge, Attitudes and Beliefs About Child Abuse and its Prevention’ (1992) 16(2) Child Abuse and Neglect 229; Maureen Kenny, ‘Child Abuse Reporting: Teachers’ Perceived deterrents’ (2001) 25(1) Child Abuse and Neglect 81; Ben Mathews, ‘Teacher Education to Meet the Challenges of Child Sexual Abuse’ (2011) 36(11) Australian Journal of Teacher Education 13; Anne Reiniger, Esther Robison and Margaret McHugh, ‘Mandated Training of Professionals: A Means for Improving Reporting of Suspected Child Abuse’ (1995) 19(1) Child Abuse and Neglect 63; Kerryann Walsh et al, ‘Case, Teacher and School Characteristics Influencing Teachers’ Detection and Reporting of Child Physical Abuse and Neglect: Results from an Australian Survey’ (2008) 32(10) Child Abuse and Neglect 983.
66 Mathews and Walsh, above n 61, 139.
67 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, above n 5, 38.
68 Ibid, 39.
69 Ibid, 47.
70 Ibid, 51.
71 Midgley, above n 50.
72 Thomas Aquinas, On Evil (2003 ed, Oxford University Press, 1274). For Aquinas, evil is the absence of a good that ought to be present.
73 Aristotle, The Nicomachean Ethics (J Thomson and Hugh Tredennick trans, Penguin, 2004).
74 Augustine, The Confessions of St Augustine (Edward Pusey trans, Collier, 1961) VI, iii, 4.
75 The flexibility of the golden mean highlights the need for malleability in fault terms. This was expressed by Aristotle’s arguments about the different food needs of different people with different body sizes. For Aristotle, the golden mean is relative. Aristotle, above n 73, II, 1106b5-1108: ‘In this way, then, every knowledgeable person avoids excess and deficiency, but looks for the mean and chooses it – not the mean of the thing, but the mean relative to us’.
76 Penny Crofts, Wickedness and Crime: Laws of homicide and malice (Routledge, 2013).
77 Fisse and Braithwaite have developed a concept of ‘reactive fault’. On this basis, harm caused, whether purely accidental or not, would be treated as a potentially serious offence until the company established otherwise. This reverses the onus of proof, requiring corporations that caused or threatened a proscribed harm to takes its own disciplinary and rectificatory measures, which would then be assessed by the courts in terms of the adequacy of the measures taken: Brent Fisse and John Braithwaite, Corporations, Crime and Accountability (Cambridge University Press, 1993). This approach to culpability is based on harmful consequences being sufficient in and of themselves to justify culpability. It has precedent in criminal law, see Fletcher, above n 34. The emphasis upon harmful consequences is central to Card’s definition of wickedness: Claudia Card, ‘The Atrocity Paradigm revisited’ (2004) 19(4) Hypatia 212; Claudia Card, The Atrocity Paradigm: a theory of evil (Oxford University Press, 2002).
78 Criminal Code (Cth) Pt 2.5, Corporate Criminal Responsibility,.
79 Section 12.3(6) ‘corporate culture’ means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.
80 Stewart Field and Nico Jorg, ‘Corporate Manslaughter and Liability: Should We Be Going Dutch?’ [1991] Criminal Law Review 156, 159.
81 Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code: Final Report December 1992, Ch 2: General Principles of Criminal Responsibility (Cth). See also Eric Colvin, ‘Corporate Personality and Criminal liability’ (1995) 6 Criminal Law Forum 1; Tahnee Woolf, ‘The Criminal Code Act 1995 (Cth) – Towards a realist vision of corporate criminal liability’ (1997) 21 Criminal Law Journal 257.
82 Veitch, above n 4, 107.
83 Andrew Goldsmith, ‘Seeing Red: Legal Indifference on a Field of Pain and Death’ (2014) 34 Australian Journal of Legal Philosophy 228, 232.
How to Cite
1.
Crofts P. Legal Irresponsibility and Institutional Responses to Child Sex Abuse. LiC [Internet]. 2018Dec.19 [cited 2024Feb.21];34(2). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/41

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