Exceptional Sexual Harms

Published date01 December 2018
Date01 December 2018
DOIhttp://doi.org/10.1177/0964663917739687
Subject MatterArticles
Article
Exceptional Sexual Harms:
The Catholic Church and
Child Sexual Abuse Claims
in Australia
Kate Gleeson
Macquarie University, Australia
Abstract
Questioning of Catholic Church leaders in the Australian Royal Commission into
Institutional Responses to Child Sexual Abuse has revealed a distinct sense of immunity
and lack of responsibility for the crimes of church personnel, which has resulted in
stymied justice for complainants in sexual abuse lawsuits. In this article, I explore this
immunity by examining it in the context of treatments of sexual harms in other areas of
private law, particularly religious exceptions to discrimination law, by which religious
organizations are granted immunity from the modern rationale of the harms of dis-
crimination on the grounds of sex and sexual orientation. In situating child sexual abuse
claims in the broader sphere of private law, I aim to reveal law’s incoherent logic of
sexual harms, and its implications for justice. The example of religious exceptions
illustrates an incoherent problematization of sexual harm and responsibility in con-
temporary legal and political systems that aim to uphold modern values of equality and
dignity while sustaining incompatible doctrines of religious autonomy.
Keywords
Institutional child sexual abuse, religious child sexual abuse, religious exceptions to
discrimination law, sexual harms, vicarious liability
There is a particular problem for Australian survivors of Catholic clerical child sexual
abuse whereby claimants have been unable to obtain damages in civil courts, even in
cases involving criminal convictions (Commonwealth, 2015; Waller, 2012). This failure
Corresponding author:
Kate Gleeson, Macquarie Law School, Macquarie University, Sydney, New South Wales 2109, Australia.
Email: kate.gleeson@mq.edu.au
Social & Legal Studies
2018, Vol. 27(6) 734–754
ªThe Author(s) 2017
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DOI: 10.1177/0964663917739687
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of justice forms just one focus of the Australian Royal Commission into Institutional
Responses to Child Sexual Abuse (the Royal Commission), in operation sinc e 2013
(Commonwealth, 2015). In its powers to compel witnesses and subpoena documents,
the Royal Commission represents an international high-water mark in the treatment of
historical institutional child abuse. Almost 30 years after Carol Smart wrote that the
criminal law was complicit in child sexual abuse in its silencing of children (1989: 50), it
would appear the problem is being addressed seriously. Moreover, we may hope that the
participation of survivors in the Royal Commission might contribute in some small way
to making amends for their silencing as victims. However, testimonies of senior Catholic
leaders and the tactics of their lawyers would suggest that within the Church there persist
deep-held senses of immunity and lack of responsibility for the crimes of its personnel
(Commonwealth, 2015, 2014b; Gleeson, 2016b; Waller, 2012). This mentality has pro-
ven very difficult for many survivors and members of the general public to comprehend
and accept, especially in this age of unprecedented accountability for sex crimes. In this
article, I explore the legal and political conditions that have contributed to the Church’s
sense of immunity, which, after all, is not merely a ‘sense’ but a reality sustained by the
Australian legal system.
The Catholic Church accounts for the majority of abuse investigated by the Royal
Commission (Commonwealth, 2014a), but it has long organized its affairs in such a
manner that it cannot be sued. While the Church has responded to the scandal of child
sexual abuse with occasional acts of responsibility and risk management, such as child
protection policies and ex gratia redress since the 1990s (Gleeson, 2015), its sustained
immunity to civil law suggests a mutually reflexive relationship between Church and
State that ought to be examined. There are material factors concerning the international
governance structure of the Roman Catholic Church that have been exploited to elude
liability and are documented elsewhere (Robertson, 2010; Tapsell, 2014). But it is my
argument that these avenues of exploitation complement and enable a state of denial
about responsibility for sexual harm that has its essence located in factors distinct from
governance or the hierarchy of the Vatican. This denial relates to an incoherent or
contradictory theory of sexual harm and responsibility in law, particularly private law,
which when coalescing with the peculiar organizational structure of the Church in
Australia, has excluded justice for claimants and bolstered the Church’s sense of legal
and ethical religious autonomy.
Following Foucault, in this analysis, I apply a problematization approach to explore
the Church’s civil immunity in Australia by examining it in the context of treatments of
sexual harm in other areas of private law. In particular, I discuss it relative to exceptions
to discrimination law by which religious organizations are granted immunity from the
modern rationale of the harm of discrimination on grounds of sex and sexuality.
1
I want
to consider the insights of Martha Chamallas (2013) about what she calls ‘the sex
exception’ in tort law and explore what happens when this exception collides – politi-
cally, discursively and jurisprudentially – with religious exceptions to discrimination
law. Essentially I am interested in what happens when the ‘sex exception’ meets reli-
gious exceptions in private law. In situating child sexual abuse claims in the broader
sphere of private law, I aim to reveal law’s incoherent logic of sexual harm and its
associated implications for justice.
Gleeson 735

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