Law's response to sexual abuse
This project considers canon law, tort law, US bankruptcy law, and the Royal Commission as they are applied to cases involving child sexual abuse by Catholic clergy.
Project background and aims
This is a PhD thesis in progress through the School of Regulation and Global Governance at the Australian National University supervised by Professor John Braithwaite.
The project compares legal systems that operate across two Catholic dioceses: the diocese of Ballarat in Victoria, Australia, and the diocese of Gallup in Northern New Mexico and Arizona in the United States. The legal systems include canon law, tort law, United States bankruptcy law, and the Australian Royal Commission. Each diocese has seen a relatively high number of victims come forward with allegations of abuse, and a range of different legal systems used to respond to those claims. The purpose of the project is to consider the legal systems’ theories, underlying purposes, and procedures in light of Nonet and Selznick’s typologies of law.
This project considers what can be learned from different legal systems’ approaches to holding two Catholic dioceses accountable for child sexual abuse. Applying a New Legal Realist perspective, it provides an account of four legal systems and the social orders in which they operate that draws on both internal and external perspectives of the systems. The project highlights how different aspects of legal systems advantage or disadvantage stakeholders pursuing their interests.
Using Nonet and Selznick’s typologies of repressive, autonomous, and responsive law, the project considers how a legal system’s overall character is determined through its underlying theories, processes, and interactions with other parts of society. It shows how canon law and tort law in Australia and the United States fail to account for the realities of the relationships between Church organizations and natural persons, and how these systems embed the interests of powerful institutions. This suggests that reform efforts focused on changing doctrine but not underlying theories or procedure do not bring the kinds of results that most reformers seek. The project then provides accounts of two other legal systems which could each be described as quasi-responsive. The account of a Catholic diocese in chapter 11 bankruptcy in the United States demonstrates how a sophisticated jurisprudence of organizations, their social realities and relationships with natural persons, can facilitate broad agreement on a settlement between victims and Church organizations, despite deferring factual disputes to the judgment of a trustee. The Australian Royal Commission into Institutional Responses to Child Sexual Abuse demonstrates how an approach that reflects an informed and sophisticated understanding of and concern for victims and their interests can provide vindication on substantive issues, even without the authority to directly impose consequences.
The project considers how, by embedding knowledge of social realities in multiple aspects of law, these systems demonstrate how a purposive approach, relying on procedural flexibility and the deliberate inclusion of a range of stakeholders in legal processes, can produce responsive law. Furthermore, by comparing two quasi-responsive systems with a repressive system and an autonomous system across two sites, the project demonstrates how sophisticated understandings of social realities embedded in legal systems are crucial to the provision of substantive justice.
Using a New Legal Realist framework, this project draws on both traditional legal research and analysis and qualitative empirical research to situate questions of legal theory, doctrine, and procedure. Interviews with professionals and officials who work on issues arising out of child sexual abuse in Catholic organizations provide an internal perspective on the legal systems through which claims are understood and processed.