A litany of improbabilities

The conviction for abuse of a top Vatican cardinal looks highly suspicious, writes Greg Daly

 

 “What a load of garbage, and falsehood, and deranged falsehood,” Cardinal George Pell had retorted when questioned by police about allegations that he had sexually assaulted two 13-year-old choirboys in 1996.

It’s the kind of brash, blunt comment for which the Australian prelate, until recently one of the Pope’s top advisers, responsible for reforming Vatican finances, has long been famous, but despite a guilty verdict in an Australian court, even long-time opponents of the cardinal suspect that he had a point.

The cardinal had been convicted on December 11 on five charges of sexually abusing the two boys while he was Archbishop of Melbourne in 1996 and 1997, after a previous trial for the same charges had left the jury deadlocked last August with – it is said – 10 out of 12 jurors backing a ‘not guilty’ verdict.

Although the guilty verdict was reached in December, it was not publicly announced until last week, as the County Court of Victoria had imposed reporting restrictions to prevent another trial, scheduled to begin in February, from being influenced. In the end, the second trial, in which the cardinal was due to face accusations of abuse dating back to his time as a priest in 1970s Ballarat, was dropped when key evidence was ruled inadmissible, and the suppression order on reporting was lifted.

Details

The details which have since come to light have certainly made scepticism about the verdict seem justified, and go a long way to explaining why the cardinal’s defence team have said they will appeal the decision on the grounds of jury composition, the refusal of video evidence, and especially straightforward unreasonableness.

The jury had found that after a Sunday solemn Mass in the second half of December 1996, the then Archbishop of Melbourne had discovered two choirboys drinking altar wine in a sacristy of Melbourne’s St Patrick’s Cathedral, and sexually assaulted them.

The prosecution’s case was based on the testimony of just one of the two then-choirboys; his peer had died in 2014 after a heroin overdose, having previously told his mother he had never been abused, and there had been no corroborating evidence.

The 35-year-old complainant said that he and the other choirboy had separated from the choir procession after Mass, and entered the priest’s sacristy where they found and began to drink some red altar wine. The then archbishop had then walked in on them, he said, said they were in trouble, exposed himself, and sexually assaulted them. The attack lasted a few minutes, the complainant said, after which the boys left the room and returned to choir practice.

Some time later, the complainant said, either later in 1996 or early in 1997, the then archbishop attacked him again, also after a Sunday solemn Mass. On this occasion, he said, he was walking to the choristers’ changing room in a corridor where lots of choristers were milling about when the archbishop pushed him against the wall, squeezed his genitals hard through his choir robes, and walked off.

Anybody who has ever participated in Masses celebrated by bishops will understand why the verdict has been greeted by informed observers with widespread scepticism. Many have been sympathetic to the cardinal’s comment, when told by the Victoria policeman Christopher Reed that the alleged attacks had taken place after Sunday Mass, “That’s good for me as it makes it even more fantastically impossible.”

As the cardinal explained in that October 2016 interview, played at the trial in lieu of the cardinal taking the stand – his lawyer, Robert Richter, hardly ever has his clients take the stand – solemn Sunday Masses would end with a procession after which he would meet and chat with people at the front of the cathedral.

“My master of ceremonies will be able to say that he was always with me after the ceremonies, until we went back to the car park or back to the presbytery,” he continued, pointing out that cathedral sacristies are hives of activity after Sunday Masses.

“The sacristan was around, the altar servers [were] around, people were coming and going,” he said, adding that even if a couple of choirboys had somehow managed to peel off from the procession without being noticed and get into an improbably empty sacristy, they wouldn’t have been able to spend much time there. “They couldn’t have dallied too long in the sacristy, because the choirmaster would have been keen for them to get away, to get them dressed and away,” he said.

***

Indeed, the entire case for the prosecution seems to have been a litany of improbabilities, unsupported by any other evidence.

Both defence and prosecution agreed that the only days that the first assault, involving four of the five charges, would have to be dated to December 15 or December 22, 1996, these being the first and second solemn Sunday Masses celebrated by the then archbishop in the cathedral.

Is it really likely that after a solemn Cathedral Mass with full choir, a bishop would leave a recessional procession and head to the sacristy unaccompanied? Is it likely that his doing so wouldn’t have been noticed? Has anybody ever seen any bishop do such a thing? And if this did happen, is it likely that his failure to greet people outside the cathedral door on his first or second Sunday Mass in the refurbished cathedral wouldn’t have been noticed?

During the trial, it’s worth noting, both the cathedral sacristan Max Potter and the archbishop’s then Master of Ceremonies, Msgr Charles Portelli, described how they would always have accompanied the archbishop after a solemn Mass with procession until they had helped him remove his robes.

Altar
 wine

Could two choirboys have broken away from the procession without anybody noticing or remembering them doing so? If they had managed to do so, what were the odds that they would find the priests’ sacristy empty and unlocked? What were the odds that they would find altar wine available, rather than locked away in the safe where it would normally be?

It was noted during the trial that the complainant said the altar wine was red, whereas the cathedral was using white wine at the time, but that’s really the least of the contradictions in this affair. Memory can get things wrong sometimes, and it is far from rare for child abuse survivors to forget precise details.

If the archbishop had somehow broken from the procession without causing a scene, and somehow chanced upon the two teenage boys drinking wine in a sacristy, would he really have had time or even capacity to assault the boys in the manner described, seemingly pushing aside his robes to do so? If he could have done so, is it really likely he would have done so, as the complainant alleged, with the sacristy door wide open and in full view of the corridor?

Police, strikingly, had never examined the archbishop’s vestments during their investigations, had never considered how heavy and cumbersome his chasuble was, how the long white alb worn under the chasuble was tied tightly with a cincture. It is hard to see how the kind of assault the complainant described would have been anything other than impossible for a fully vested bishop; certainly the prosecution never showed in the trial that this could have happened.

Conclusion

At the trial’s conclusion, the chief judge had directed the jury that it was not enough simply to believe the complainant, or to think the cardinal had committed the abuse. Rather, the judge said, they would have to find the cardinal not guilty unless they believed the abuse happened beyond reasonable doubt.

And yet, despite all this, despite the apparent implausibility of the allegations, despite being reminded on numerous occasions that they should not make the cardinal a scapegoat for the Church’s very real failures in child protection, the jury unanimously found the cardinal guilty.

While legal experts believe his appeal is likely to exonerate him, the fact remains that for the coming months he shall be legally deemed a guilty man, convicted of brutal and callous sexual assaults on young children.

However, while the cardinal is guilty as a matter of law, it is worth remembering that this does not necessarily mean that is so as a matter of fact.  Irish people familiar with the stories of the Guildford Four, the Maguire Seven, the Birmingham Six and Nora Wall will be all too aware that courts sometimes get it wrong.

The case of Nora Wall, the first woman in Ireland to be convicted of rape, feels particularly relevant here, given how it has been observed that her wrongful conviction took place just weeks after the broadcast of the States of Fear series.

Cardinal Pell’s trial came after the Victorian parliamentary inquiry, the federal royal commission, Tim Minchin’s song ‘Come Home (Cardinal Pell)’, Louise Milligan’s book Cardinal: The Rise and Fall of George Pell and a parliamentary apology to the victims of child sexual abuse. It is hard not to suspect that the atmosphere ahead of the trial was such that a fair trial was always going to be unlikely.

***

While criticism of the verdict has been anything but a rarity in English-language media since the suppression order has lifted, it has at times been hard to spot it. Sober discussion of the case has too often been drowned out by roars of disgust and outrage about the language used by the cardinal’s barrister when he appealed for leniency in sentencing, arguing that the alleged assaults had been no features that might be deemed legally aggravating.

“This is no more than a plain, vanilla sexual penetration case where a child is not volunteering or actively participating,” Robert Richter had said, subsequently explaining that his comment had been addressed to a legal audience familiar with Australia’s legal system and norms, and not something he had expected the media to seize upon.

“In retrospect, I regret using a term well understood by lawyers and judges which is open to misinterpretation by those who do not understand the process of plea making after a conviction where the accused still maintains innocence; I was after all conceding that the conduct required imprisonment rather than arguing for a non-custodial sentence,” he wrote in a public apology to those hurt and scandalised by his language.

“I was trying to put it within a range which would avoid the kind of excessive number of years for which the crowd is calling,” he continued.

While his comment had been intended, he said, to acknowledge the gravity of the offences the court believed the cardinal guilty of while at the same time pointing out that the offences were without aggravating factors, he had realised that his phrasing had been deeply offensive.

“In seeking to mitigate sentence I used a wholly inappropriate phrase for which I apologise profusely to all who interpreted it in a way it was never intended: it was in no way meant to belittle or minimise the suffering and hurt of victims of sex abuse, and in retrospect I can see why it caused great offence to many,” he wrote.

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The Pell situation also creates a potentially enormous difficulty for the Church’s own internal procedures, especially given calls nowadays for ‘zero tolerance’ approaches, however they might be defined.

It’s long been a point made the more measured defenders and explainers of the Church that canon law facilitates disciplinary action when the hands of the State are tied.

“Action or inaction in one jurisdiction does not prevent action or inaction in the other,” observe Austen Ivereigh and Michael Kelly, editor of The Irish Catholic, in last year’s How to Defend the Faith Without Raising your Voice. “The Church will often choose to pursue an allegation when the civil authorities have not. And even when the police have dropped charges against a priest, the accused priest must still go through a rigorous process of ‘risk assessment’ by Church-approved experts before he is allowed back into his parish.”

An obvious example is the case of former cleric Dan Duane – the ‘Fr Ronat’ of the Cloyne Report – who was acquitted in criminal courts in May and November 2011, but nonetheless was removed from the clerical state following a canonical trial and despite a series of unsuccessful appeals, including one to the Pope.

Key to the Church’s ability to act in this area is that the burden of proof in canonical trials is lower than in civil courts. While allegations in the latter are expected to be proven beyond reasonable doubt, canonical decisions are made on the basis of a balance of probabilities.

In the case of Cardinal Pell, however, if the evidence against him is as weak, even as implausible, as appears to have been the case, there is at least the possibility that the canonical case might not result in a guilty verdict, with the result that no penalties would be imposed. It is possible that in such a case the Cardinal might be formally restricted from ministry and even asked to surrender his red hat, purely for the sake of avoiding scandal.

Whether such actions would be fair or essentially honest, however, would be a matter of debate, as would whether the Church should do what looks right or what is right. There’s a case to be made, surely, that the Church might not be in its current mess if Catholics had made a point of doing what was right, rather doing what might look good.