The media erupted this week as Cardinal George Pell was convicted of Historical Child Sexual Abuse.
Evidence Beyond Reasonable Doubt
In any criminal case a judge or jury must adhere to a very strict standard of proof. That is, a hearing will only be run on what can be proven upon the admissible evidence. The offence must be established beyond any reasonable doubt.
It is often the case in criminal proceedings that the heavy evidence burden can leave survivors of child sexual abuse feeling disheartened, disempowered and as though they have no further course of action.
Let me explain …
The verdict against Cardinal Pell relates only to allegations that he assaulted two 13-year-old choir boys at the St Patrick’s Cathedral in Melbourne in 1996 after a Sunday mass and again assaulting one of the boys in 1997. This was no doubt a difficult case for the crown to prove, with very limited evidentiary material to call upon, particularly as one victim had died.
Pell was due to face another trial in April 2019 for allegedly assaulting two boys in a swimming pool in Ballarat in the 1970's. However, the order was lifted this week after Victorian Chief Judge Peter Kidd deemed key evidence inadmissible.
There are speculations Pell may be guilty of perverting the course of justice by covering up paedophile priests in the past, and even potentially concealing evidence, but this is not the charge. It is also not the subject of this trial.
Throughout the lengthy court process additional allegations have been made against Pell but such charges have either been dropped or dismissed due to insubstantial evidence.
What about the other avenue for child sexual abuse survivors to pursue?
Claims Beyond the Criminal System
Abuse survivors have rights beyond the criminal sphere. Victims do not need to secure a criminal conviction against an alleged offender to make a civil claim against them. Claims within the civil jurisdiction allow survivors of child sexual abuse and their families to recover compensation for their losses as a result of their trauma.
A claim can be made against the individual personally, or the institution generally.
In a civil claim for compensation the Court does not need to find that the assault was committed beyond any reasonable doubt. A lower standard is applied: that it is more probable than not that the act occurred. Accordingly, it is easier for historical offences to be proved by victims.
Survivors can pursue individual claims for damages against the alleged abuser for tortious assault. The tort of assault can include a threat of violence or unwanted touching.
While Pell's legal team are set to appeal the decision of the December trial, Pell and the Church could face further exposure within the civil jurisdiction particularly in relation to a claim of negligence.
Survivors may claim negligence against the church. The Civil Liability Act was amended to ensure the responsibility of institutions after the Royal Commission into Institutional Responses of Child Abuse. As a product of these amendments, liability may be imposed upon institutions for abuse by persons associated with the institution, unless the institution proves it took all reasonable steps to prevent the abuse.
The shift from the victim having to make out all elements of the offence beyond doubt, to the church having to demonstrate they did what they could to avoid it, gives survivors the upper hand in a civil court case.
Child abuse survivors having to stand up against big institutions in court is harrowing, but the amendments within the civil jurisdiction present a step forward in ensuring justice for victims.
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