GUILTY UNTIL PROVEN INNOCENT

Extracts from article by Nuala O'Loan in The Furrow magazine October 1999

[Today Nuala O'Loan is the Police Ombudsman for Northern Ireland. In October 1999 she was a Senior Lecturer in Law at the University of Ulster. Over 5 years ago she understood everything about our child abuse witch hunt. How long will it take before our judges and politicians catch up with her?]

The recent trial of Nora Wall and Paul McCabe [July 1999] reflects the current lack of balance in dealing with allegations of child sexual abuse, a lack of balance which seems to permeate the process from the moment that an allegation is made. OVER RECENT YEARS WE HAVE SEEN THE VERY PUBLIC DEMONSTRATION OF FAILURE BY THE IRISH DIRECTOR OF PUBLIC PROSECUTION'S OFFICE TO PERFORM ITS DUTIES PROPERLY; THE APPARENT ASSUMPTION BY SOCIETY THAT ANY ALLEGATION OF SEXUAL ABUSE IS PROBABLY TRUE, AND WHAT COULD BE DESCRIBED AS A CONSEQUENTIAL WITCH HUNT AGAINST PRIESTS AND RELIGIOUS. It is now time for all involved to consider seriously their responsibilities when faced with such an allegation. This article will attempt to analyze some of the problems arising in these cases.

In cases involving alleged child sexual abuse the common presumption appears to be one of guilt, that the allegation is true. However, it is clear that there are situations in which allegations are made for reasons other than that the facts alleged actually occurred. FALSE MEMORY SYNDROME, MENTAL ILLNESS AND A DESIRE TO CLAIM COMPENSATION MAY ALL BE FACTORS IN THE ALLEGED VICTIM'S DECISION TO REPORT THAT THEY WERE ABUSED. In some cases, such as the case of illness, where the allegation is falsely made, the victim is clearly not responsible for what happens to the alleged perpetrator.................................................................................................

ALL THOSE WHO DEAL WITH CHILDREN RUN THE RISK THAT AN ALLEGATION OF SEXUAL ABUSE MAY BE MADE AGAINST THEM. IT IS QUITE CLEARLY THE CASE THAT TEACHERS, PRIESTS, NUNS, SOCIAL WORKERS, ETC. HAVE ALL BEEN SUBJECTED TO SUCH ALLEGATIONS WHICH TRANSPIRED TO BE UNFOUNDED. In the event of an allegation of sexual abuse the individual against whom the allegation is made will, in most cases, be removed immediately from their job, so as to protect the child with whom they might come into contact. Some of these individuals will be able to cope with the initial period of investigation, going away to do a course, or take a sabbatical for example. For most, however, the suspension from employment will immediately cause questioning. Teachers, priests, nuns and social workers do not suddenly take indeterminate leave. When suspension occurs, assumptions will be made, and in the current atmosphere the assumptions will almost invariably be that something has happened - 'no smoke without fire'. The consequences of this can be devastating. Families become the subject of antagonism and hostility; threatening phone calls can be received; people can be 'ordered' to leave their homes; their children can be threatened, mocked and attacked; society can adopt the 'cold shoulder' leaving the alleged perpetrator and their families isolated and afraid. Even the Church can become distant - afraid to become involved, perhaps because the alleged perpetrator is a teacher or social worker in a Church institution, or is a priest or religious. In such circumstances there is evidence of muddled thinking and panic reactions which cause the Church to fail to care for anyone properly. There is also a corresponding societal failure, in that people seem to assume guilt and react accordingly, notwithstanding that the allegations have been neither investigated nor proved. The reasons for such responses are clear - we quite simply do not know how to react or how to conduct ourselves as a society in such circumstances. We have not taken time to consider, coolly, such circumstances. We have not taken time to consider, coolly, rationally, the nature of our obligation in such situations. We must do so.

A JUST RESPONSE TO AN ALLEGATION .........................................................
.............................. The fact that those who are accused also have rights, and the nature of those rights, have been clearly spelt out in documents such as the European Convention on Human Rights. What are those rights? They include:

. The right to be told in a language which they understand of any charge against them.

. The right, if deprived to liberty, to trial within a reasonable period having regard to the deprivation of liberty.

. The right in any event of trial within a reasonable period.

. The right to be presumed innocent until proved guilty.

. The right to adequate time and facilities for the preparation of a defense.

. The right to defend himself.

. The right to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

INNOCENT UNTIL PROVEN GUILTY .......................................................

It seems to be the case that there is a reasoning process which assumes that where an allegation has been made then the Church cannot permit itself to act as if the individual complained against is innocent. Why should this be? Why should the Church assume that it must act as if there were some guilt even where its only evidence is an uncorroborated statement? One of the problems is that there are no clear procedures such as most professions have for investigating such issues. There remains a context of secrecy, which dominates the thinking of those concerned. It can involve a misconceived attempt to protect the individual complained about by simply and quietly putting him out of harm's way. It may also be the consequence of the understanding that the clergy and religious are in a position of trust, and that the alleged breach of such trust makes the alleged offence more reprehensible. At the end of the day, however, until the allegation is proved, it must remain merely an allegation. It is an allegation which must be investigated with all the thoroughness possible, and an allegation which the Church authorities must accept may be true, nonetheless it is only an allegation. The church must ensure that in all its dealings it does all it can to protect the reputation and well-being of any individual against whom a complaint is made. It must in its actions demonstrate its belief in the individual's innocence unless and until such time as guilt is proved.

THE RIGHT TO DEFEND HIMSELF .....................................

Where there is more than one complainant it will be necessary to know the relationship, if any, between the complainants and to know whether the possibility of fabrication and collusion exists. Fabrication and collusion are not unknown particularly where the incentive of compensation exists. Information as to all the details of the allegation is therefore vital.

THE RIGHT TO EXAMINE WITNESSES ..........................................................

Critical to any possibility of defending oneself is the ability to challenge those who make claims against one. Such challenge and examination may have to be done by someone else but it is vital. Inherent in any process under which allegations of sexual abuse are dealt with must be the opportunity to conduct such examination. If an individual is merely consigned to " limbo" as described above he will not have the opportunity to refute the charges. Challenge to witnesses in court often results in the discrediting of the story or the witness. The mere fact that someone makes an allegation of sexual abuse does not mean that they should be protected from any investigation of that complaint. Investigation should be sensitive but robust. Traumatized victims must be reasonably protected against further trauma through the investigation of complaints, but that protection must not be at the cost of an examination of the truth of what is alleged...................................................

CONCLUSION

It is incumbent on the State to address the problems disclosed by defective processes in its systems. For the Church there is an equal obligation to institute some transparent mechanism for dealing with allegations of sexual abuse by those over whom it has jurisdiction. It should have the courage to meet the pastoral needs of its teachers, social workers, priests and religious accused of sexual abuse. Jesus did not turn his back on sinners. Nor did he marginalize or ignore the accused of crime. In addition to this it should institute proper mechanisms for dealing with unresolved cases such as those discussed above. Compassion and justice should be the hallmarks of any new system.

Such a system could include:

. the creation of an investigatory tribunal to hear cases involving such unresolved allegations of sexual abuse

. the funding of training and development of the members of such a tribunal

. provision of qualified investigators to assist priests or members of orders in the investigation of any allegations

. the creation of clear guidelines for the conduct of hearings of the tribunal
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Priests and religious have made enormous personal contributions to the people of Ireland and of the world. They are clearly demoralized by the evidence of wrongdoing by a very small number of their fellows, and concerned about the inadequacy of the current response to allegations of sexual abuse. Priests and religious are no more likely to be abusers than any of the rest of us. They are entitled to fair treatment by the Church. The rights of the victims are being addressed. It is time now to look to the rights of the accused.