Articulating the Church's story as legal defendant in abuse claims: Can the Magisterium help?

Abstract

Catholic entities are being sued for personal injury compensation arising from sexual abuse perpetrated by church personnel. In some jurisdictions, the situation has deteriorated because of changes to the statute of limitations, the naming of an entity to sue, the setting aside of previous settlements, and abuse compensation law firms. Oftentimes there are overstated, doubtful or apparently false claims, and disturbing decisions. There is a feeling of being cornered with minimal prospects for change. How and what does the Church communicate when its predicament is frequently not ‘right and just?’ This article scrutinizes such powerlessness using the Magisterium of the Catholic Church on the truth of social communications. The Church insists on a proper understanding of truth and its uses. Despite the new adverse realities, the Church’s responses should communicate the truth in love. The article begins an analysis of various factors and recent changes causing the Church to find itself in a no-win situation. Next, several significant yet alternative perspectives are presented. Finally, there is an investigation of the magisterial teachings of the Catholic Church on the truth of social communications which offer a theological context to rethink the Church’s current circumstances.

Keywords:

• Catholic defendants
• Magisterium
• lawsuits
• abuse claims
• truth
• social communications

1. Introduction

Catholic dioceses and religious institutes are increasingly being sued in civil courts for personal injury compensation arising from sexual abuse perpetrated by clergy, religious and employees. In some jurisdictions, the situation has deteriorated due to changes to the statute of limitations, the naming of an entity to sue, the setting aside of previous settlements by the courts, and a proliferation of abuse compensation law firms. In various countries like Australia, there are also claims under government redress schemes.

Naturally, victims and survivors of abuse are justly entitled to seek reparations. However, there appear instances where claims are overstated, doubtful or apparently false (Valladares 2012); and often these result in rather alarming judgements, settlements and determinations. For example, lawyers looking for clients, proposing they claim to have been abused when they were young and offering to file lawsuits against the Church on a contingency basis: no fee is charged if the litigation does not end in victory or a settlement (Morrisey 2001).

There is a feeling of being cornered with minimal prospects for change: in parliament, in public opinion, in the contemporary legal landscape, and the situation is not always escapable through bankruptcy. How and what does the Church communicate when its predicament is frequently not ‘right and just?’

Complementing recent scholarship on vulnerability (Carroggio 2021), fragility (Narbona, Pujol, and Gregory 2020), and trust in organisations (Guzik 2020), this article examines defendant powerlessness using the Magisterium of the Catholic Church on the truth of social communications. The Church insists on a proper understanding of truth and its uses. There are inspirations and rich resources for lawyers and church leaders to contemplate. Despite being constricted by the new adverse realities, the Church’s responses should communicate the truth in love.

The article begins with an analysis of various factors and recent changes causing the Church to find itself in a no-win situation. Next, several significant yet alternative perspectives are presented. Finally, there is an investigation of the magisterial teachings of the Catholic Church on the truth of social communications which offer theological contexts for rethinking the Church’s current circumstances.

Unsurprisingly, the Church handles abuse allegations differently in each country (Kritzer 1989; O'Rourke 2021). Since the 1960s, state payments to victims of violent crime occur in 35 countries, not globally but mostly in western liberal democracies: ‘Except for countries in Africa, Latin America, and the Asia-Pacific…money justice is experienced predominantly by victims in affluent nations in the Global North’ (Daly and Davis 2021a, 71). Moreover, the laws vary even within countries in their differing jurisdictions. Such diversity is important to keep in mind.

2. Factors and changes resulting in a no-win situation

In many places the Church now finds itself in legally precarious circumstances due to several reasons. In this part we explore ten factors and recent socio-legal changes which have created a no-win situation when defending and responding to personal injury claims arising from sexual abuse.

2.1. Catholic dioceses and religious institutes sued in civil courts

Once it was difficult for victims of institutional historical sexual abuse to obtain justice.¹ The experience of adults reporting childhood sexual abuse in Ireland was silence by the community about the trauma suffered by victims, and being silenced by the political establishment and by the courts (Ring 2017a).

However, this is no longer the case in countries like Australia, United States, and Canada, where a number of Catholic dioceses and religious institutes have been sued in civil courts.² The issue of the ‘deepest pocket’ surfaces; often the diocesan bishop or the religious superior is sued if the alleged perpetrator belongs to a diocese or a religious institute (Morrisey 2000).

A few transformative processes occur before a case comes to court (Felstiner, Abel, and Sara 1980–1981). It begins with naming, a transformation when a certain experience is perceived as injurious; then blaming, the transformation of a perceived injurious experience into a grievance; the third transformation of claiming happens when a grievance is communicated to the person or organisation thought to be responsible and redress is requested; and when the claim is rejected in whole or in part, the matter is transformed into a dispute.

Scholars note the law of torts (civil wrongs) and litigation brought sexual abuse within the Catholic Church before the attention of the Church, governments and the public (Lytton 2008). In turn, the Catholic sexual abuse crisis changed the private law of responsibility, that is, the laws affecting how persons relate to other persons and organisations (Moran 2019). In the early 1980s there were various barriers, e.g. statutes of limitations. The changes since then include reforms of liability laws, a shift in the concept of institution liability, and individuals turning to lawsuits for redress (Moran 2019).

The international sociocultural situations vary. In Italy, the constitutional context has principles of autonomy and sovereignty of both Church and state; however, it is expected that judges are ever more unlikely to be deferential towards churches; some have supported the possibility of their vicarious liability (Madera 2020). Yet countries characterised by religious pluralism and/or secularism do not inevitably impose stronger consequences on sexual abuse committed by clergy compared to mono-confessional countries (Marotta 2021; Gleeson 2016).

2.2. The naming of an entity to sue

Previously in Canada, some court decisions held that the Catholic Church could not be sued but only its constituent parts, although other decisions found the Catholic Church could be sued and is answerable for the acts of its clergy (Morrisey 2000). Similarly in Australia, an unincorporated association is a group of individuals associated together for some lawful purpose without finite or fixed membership, it cannot sue or be sued in its own name since it does not exist as a juridical entity.³ Under the laws of the time, trustees of the Catholic Church who held property for and on behalf of ‘the Church’ could not be rendered subject to all legal claims linked with Church activities.⁴

In 2015, the Australian Royal Commission into Institutional Responses to Child Sexual Abuse recommended that governments should legislate to provide for a survivor to commence proceedings for damages arising from institutional child sexual abuse. That is, if the institution has an associated property trust, then the property trust is a proper defendant, unless the institution nominates a proper defendant (Royal Commission into Institutional Responses to Child Sexual Abuse 2015).

Parliaments have passed legislation to make organisations liable in certain circumstances for child abuse perpetrated by persons linked with the organisation, and to permit child abuse plaintiffs to bring civil proceedings against unincorporated non‑government organisations which use trusts to conduct activities.⁵

2.3. Statute of limitations

The scholarly opinion on the statute of limitations obstructing victims taking action due to lapse of time, or being statute-barred,⁶ is generally negative. ‘When the legal system's adoption of statutes of limitation prevents any victims of sexual abuse from entering the system – whether as crime victims or as plaintiffs in tort actions – one must question whether the outcome is fair and just?’ (Katner 2020, 30).

Amendments to legislation in Scotland and Australia removed the statute of limitations on child sexual abuse occurring in institutions.⁷ In the United States, organisations monitor reform laws on the statute of limitations going into effect, reform bills passed in legislatures, and reform bills introduced in legislatures (Child USA 2022).

Other legal changes offer a limited timeframe. In the U.S. the State of New Jersey opened a two-year window which extended the amount of time victims of sexual abuse had to sue, after the law passed in 2019 which waived the statute of limitations to sue for over 24 months ended on 30 November 2021 (Sherman 2021).

For other jurisdictions the matter is under review. The Independent Inquiry into Child Sexual Abuse investigated how the law of England and Wales provides ways for perpetrators of child sexual abuse to be held accountable under criminal law and in civil law. The inquiry found that some practices of the civil justice system like the adversarial trial process are essential.

So too is the law of limitation, which we heard operates unfairly in the context of child sexual abuse litigation, and which we intend to consider further in the next phase of our work […] Individual and institutional defendants have the right to defend themselves in accordance with these laws and procedures. However, there is a compelling need for claims by victims and survivors of child sexual abuse to be treated differently from other forms of personal injury litigation (Independent Inquiry into Child Sexual Abuse 2019, 101).

2.4. The setting aside of previous settlements

After a negotiated settlement the parties usually sign a deed of release. It requires the party suing to abide by the terms such as forever indemnifying against all actions, claims, suits and other proceedings for loss, damage, injury, costs and liability which was the subject of the civil litigation. Any future legal action is forever stayed.

Now parliaments have amended legislation so that an application may be made to a court to set aside previously settled causes of action, the settlement agreement, and any judgment giving effect to the settlement, if a court is satisfied that it is just and reasonable.⁸ This has led to courts setting aside deeds of release entered into to the extent that those agreements would be a bar to a cause of action.⁹

For any compensation paid as part of the settlement, a court may take into account monetary and non-monetary damages paid previously.¹⁰ Nonetheless, a court may also deny the compensation paid in a previous claim be used to set off damages assessed in a present claim.¹¹

However, in one jurisdiction a court found there was nothing to suggest that the settlement figure was not a fair and reasonable reflection of the applicant’s case as it appeared in 2002. ‘It was the product of an arm’s length bargain facilitated through a fair mediation process where the applicant was very ably represented’ and that ‘it is not just and reasonable to set aside the settlement’.¹²

2.5. Lower burden of proof

In the civil law procedures, there are fewer due process safeguards for defendants because their liberty is not at risk, and a different standard of proof: the preponderance of the evidence rather than ‘beyond a reasonable doubt’ (Bowman 2016, 219).

The needs of the victim, offender, and community are largely irrelevant to civil litigation except insofar as they are relevant to proving damages: ‘society assumes that monetary compensation, rather than punishment, equals justice. Because the harm attached to civil liability is considered less than that of criminal liability, the procedural safeguards are much more relaxed’ (Noll and Harvey 2008, 382). Victims/survivors have found lengthy, adversarial legal processes with higher burdens of proof to be less helpful compared to alternative compensation schemes (Blunden et al. 2021).

2.6. Abuse compensation law firms

Plaintiffs in personal injury lawsuits outline wrongs to lawyers in categories, for example personal, medical, and earnings-related matters. Lawyers translate these into such currency as money which ‘converts the complex into the straightforward; significantly, however, it also reinforces the dominance of a particular currency as the standard through which people, products, and other resources are made commensurable’ (Mather and Yngvesson 1980, 784).

In 2001 and 2002, the Archdiocese of Boston was served with more than 500 lawsuits; the Archdiocese paid out over US$40 million (Gavrielides and Coker 2005). Lawyers drive the ‘monetization of lawsuits’ where ‘monetary disputes seem like the most favorable candidates for settlement: if you can't haggle over money, what can you haggle over?’ (Luban 1995, 2646–2647).

Yet some scholars raise interesting questions. Miller (2021) noted that the most conspicuous survivor advocate group in North America, the Survivors Network of those Abused by Priests (SNAP), have encouraged complainants not to access compensation schemes but rather to litigate their cases. She cites the allegation by a former employee who alleged that SNAP exploits victims of child sexual abuse by ‘treating them solely as potential litigants who might financially boost SNAP and who might financially benefit lawyers who are intimately connected to SNAP’ (Miller 2021, 82).

Since the late 1990s in Canada, lawsuits have been filed against the government and four Christian denominations on behalf of more than 12,000 indigenous people, but a study found the money continues to be paid to courts, lawyers, and to plaintiffs (Thomas 2003). ‘Of the $5 million spent by the Anglicans by mid-2001, barely 1% had reached plaintiffs in the form of settlements. The remaining 99% went to lawyers, the courts, and public-relations efforts’ (Thomas 2003, 336).

Previously, private law remedies for injustices were sidelined due to litigation being seen as too expensive (Degeling and Barker 2015). People with financial resources are over‐represented in the tort system and those with scarcer means instigate lawsuits less often, although their monetary need may exceed those of other potential litigants (Balboni and Bishop 2010).

However, the situation has changed. Survivors of non-recent institutional abuse can be ‘captivated by the siren song of large civil payouts. The problem has recently become acute, with some lawyers claiming that survivors can receive substantially larger payments if they pursue civil litigation’ (Daly and Davis 2021b, 461) rather than a redress scheme. Plaintiff law firms advertise their services. Conditional fees, or ‘no win, no fee’ arrangements are offered, where lawyers agree not to charge fees unless the claim was successful and paid by the losing insurance company (Kloss 2020). Where most personal injury claims are successful, the legal costs can be recovered by lawyers from insurers, thus making conditional fee work financially attractive (Morris 2019). Unless the defendant has no insurance, which is common in older historical cases, or the insurer denies indemnity, then the claims are paid by the defendants.

Research shows that some 93% of cases on a ‘no win-no fee’ basis are successful, implying that plaintiff or claimant lawyers are likely only going to take strong cases, and the issue of ‘have a go’ vexatious litigants will probably be correspondingly minor (Williams 2005). But now socio-legal circumstances favour plaintiffs whose lawyers seem to want to ‘extract large settlements from litigation-weary defendants, regardless of the merits of the claim’ (Rutner and Brady 2018, 69–70).

Overall, financial settlements overshadow concerns that settlement is a significant but not sufficient stage in bringing out future-oriented change for survivors of sexual abuse, that ‘litigation where some significant life trauma is involved – is “not about the money” for the survivors. The sense of community, the righteousness that survivors felt, the sense of vanquishing buried shame: these are not the ingredients of a rational calculus’ (Balboni and Bishop 2010, 152).

2.7. Fair trial and permanent stay of proceedings

The right to a fair hearing in criminal law is internationally recognised (United Nations 1976). Protecting the rights of the accused is important, yet others contend there are also the rights of victims, the pursuit of justice, and the community who may be deprived of a fair trial (Shead 2014). In American case law, concerns about trial prejudice are found in litigation in civil cases too, where various factors may impede a juror from approaching a trial with an unbiased frame of mind (Vidmar 2002).

In defending allegations of historical sexual abuse, church defendants may apply for a permanent stay of proceedings. The relevant factors include: when the alleged perpetrator has died, when there is no pertinent material available, whether defendants can meaningfully respond to the claims and receive a fair trial, and whether continuing the proceedings would be unfairly oppressive and burdensome.¹³ There is the ‘element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed’.¹⁴

The lapse of time and lack of witnesses may cause ‘a trial being so manifestly unfair that a stay should be granted’.¹⁵ If a court stays the proceedings permanently, it may also note regarding the claimant that ‘nothing in this judgment should be taken as reflecting adversely on her credibility, including the credibility of the account of the sexual abuse she stated she suffered’.¹⁶

Nonetheless, ‘A party is entitled to a fair trial, not a perfect one. The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair to the degree that a stay should be granted’.¹⁷ Moreover, a court also needs to consider whether all reasonable enquiries were made by the defendant to ascertain if evidence is available, and whether this was due to his own neglect or due to a failure to take timely steps to gather evidence.¹⁸

Judges are concerned about issues such as the trustworthiness of memory, given the passing of time since the alleged abuse; effects on the quality of justice; the witnesses, including the alleged perpetrator; and the degree to which it would be unfair to require the defendant to meet the case presented by the plaintiff.¹⁹

In another judgement, besides a lack of records, the alleged perpetrator and other witnesses were deceased and unable to shed light on the veracity of the plaintiff’s allegations, the court also cited ‘the lack of insurance is a relevant consideration and causes prejudice to the defendant even where there is nothing to suggest that the School could not meet any verdict’.²⁰

2.8. Redress schemes

Since the first government redress scheme for institutional abuse of children started in Canada in 1993, there have been at least thirty-six government redress schemes proposed, underway, or completed in fourteen jurisdictions since January 2017 (Daly 2018). These are nonjudicial victim-redress schemes (Smith and Duff 2020), which operate in a complex political and cultural setting (Simon 2013).

In Canada, churches and the government have apologized for their involvement in residential schools. In light of ‘the thousands of outstanding claims, history compels us to also ask hard public-policy questions. When a social policy endorsed by successive generations of Canadian electors and their government fails, how should the legacy be addressed and who should pay?’ (Zarowny 2002, 6). Yet, churches in Canada have also addressed the legacy of residential schools by setting up funds to help foster relationships and healing, altering church structures, developing educational materials resources, and advocating for indigenous causes (Bergen 2016).

In Great Britain, discretionary schemes compensate victims of violent crime according to a statutory scheme, the Criminal Injuries Compensation Scheme of 1996, with awards for pain and suffering given using a tariff of injuries schedule and a limit of £250,000 for catastrophic injury and an overall limit of £500,000 (Sugarman and David 2004).

In Ireland, a 2002 redress scheme followed the Commission to Inquire into Child Abuse (Ryan Report), which used a low standard of proof, the criterion of ‘balance of probabilities’ as in civil court, without the obligation for the applicant to prove legal fault (Miller 2021). Ireland’s Residential Institutions Redress Board has a rigorous process for evaluating claims like the provision for cross-examination, in contrast with the National Redress Scheme in Australia with its lower standard of proof and no provision for cross-examination (Miller 2021).

The Australian low evidentiary threshold of a ‘reasonable likelihood’ test offers recognition and redress to survivors who may not wish or be able or to access damages through civil litigation and ensures a survivor experience with less trauma.²¹ Some found the National Redress Scheme in Australia retreated from the goal of providing justice to survivors in favour of protecting the interests of participating institutions and the scheme operator (Daly and Davis 2019).

However, this is not the experience of some institutions. A study found a high possibility of fraudulent claims intended to deceive in order to obtain financial compensation. According to the data supplied by the Catholic Church and used by the Australian Royal Commission examining institutional responses to child sexual abuse,

77% of the complaints of child sexual abuse in the Catholic Church were made after the creation of redress schemes (in the late nineties). This is despite the fact that the number of alleged acts of child sexual abuse in the Catholic Church that are claimed to have taken place since the late nineties has been very low and those claimed to have taken place since the mid-eighties is on a sharp downward trajectory […] This very high figure of 77% of child sexual abuse claims made post the introduction of the redress schemes and made in the context of evidently low and declining actual incidents of child sexual abuse suggests that some of the claims of child sexual abuse in the Catholic Church were fraudulently made for the purpose of monetary gain. (Miller 2021, 90–91)

2.9. Bankruptcy

Catholic organizations in the United States have filed for bankruptcy in response to sexual abuse lawsuits, leading to settlement negotiations, disagreements over the debtors’ property and capacity to pay; in short, ‘sexual abuse of children by priests had become a mass tort problem for Catholic organizations, and Chapter 11 was the obvious legal response’ (Reilly 2019, 873–874). Chapter 11 of the United States Bankruptcy Code provides for a reorganization of a corporation or partnership.

A debtor under Chapter 11 generally proposes a plan of reorganization to keep its business operational and pay its creditors gradually (U.S. Courts 2022). It has some benefits. The public face of the survivor movement has been described as mostly white and middle class. The accounts of survivors who do not fit that profile may be left unknown, but bankruptcy arrangements unpredictably have sometimes included minority survivor voices in designing plans for approval (Edelman 2015).

Nevertheless, many common law countries do not have the options that are available in in the United States, which did not adopt England's ‘unforgiving and highly administrative bankruptcy process, although both Australia and Canada did adopt the English system. The focus in the United States instead was on balancing the desires of creditor groups and debtor groups, and promoting commerce’ (Martin, 2003, 367–368).

2.10. Settled before trial

In many countries, settlement of civil litigation is the principal outcome and the most common successful result for plaintiffs (Eisenberg and Lanvers 2009). For the District Court of Western Australia, out of every 100 actions commenced, only 2 or 3 will proceed to trial (District Court of Western Australia 2021).

Likewise, many sexual abuse lawsuits are settled using alternative processes with lower costs, facilitating more satisfying outcomes (Noll and Harvey 2008). One estimation is that no more than 1–2% of historical abuse cases are determined by courts (Daly and Davis 2021).

While this arrangement is the best outcome for defendants, there is the feeling of being forced to settle doubtful matters in order to avoid the costs of a trial. It is a purely commercial decision which is separated from ideals of justice for institutions in the face of uncertain claims and allegations.

Overall, there is so much against Catholic institutions in civil lawsuits and nonjudicial schemes. Many factors are new as outlined above: the naming of an entity to sue; the change or abolition of statute of limitations; the setting aside of previous settlements by the courts; a lower burden of proof; the proliferation of abuse compensation law firms; the lower prospects of a fair trial and difficulties in obtaining a permanent stay of proceedings; doubtful civil litigation claims and redress schemes applications; unfavourable bankruptcy regimes; and being forced to settle questionable cases in order to avoid burdensome legal costs.

Further circumstances affecting Catholic defendants are the minimal prospects for changes in the laws due to the contemporary legal and cultural landscape, the community’s sympathy for victims of institutional sexual abuse, and the negative public spotlight on the Catholic Church (Foley 2019; Paprocki 2009). This is all probably a reaction to the laws operative previously. There were past difficulties in obtaining redress for physical and sexual abuse perpetrated against children and adults in institutions throughout most of the twentieth century (Smith and Duff 2020). Additionally, louder international discussion is heard about tort law regarding suing the institutions to which abusers belonged for failures under vicarious liability and non-delegable duties and ‘the need to adjust vicarious liability to meet social concerns’ (Giliker 2018, 535).

This all leads to a sense of powerlessness in the Church, which finds society’s ‘justice’ system not delivering justice to institutions; there can be exasperation and much anxiety about the financial survival of Catholic organisations facing liability for crimes of past and deceased offenders. It is not right and just.

3. Alternative perspectives

In light of the above, it is imperative for church organisations not to feel besieged and lose hope. There are other ways of thinking, alternative ways of responding to the ten legal and judicial factors and changes above. This part briefly considers several different social, historical, and theological viewpoints.

First, other community and cultural factors are often overlooked. Sexual abuse was invisible for a long while in Irish society, yet it is not historically correct

to attach all blame to individual abusers or institutions. The experiences of victims presented to the courts in the period 1999–2006 indicate that parents, teachers, gardaí and other members of society were involved in creating and sustaining a culture of silencing around child sexual abuse that existed not only during the period of abuse but for decades afterwards. (Ring 2017b, 577)

The growth of lawsuits in response to the factors and changes obscures underlying important questions about which a culture and society need to face.

Secondly, other voices were muted throughout the distressing processes of inquiries into abuse that preceded the changes and factors above. Analysing historical institutional abuse in Scotland and Wales, Smith noticed a ‘master narrative’ or discourse on abuse in which some voices were unheard. The quieter voices belonged to adults and carers who had ‘very different experiences in residential child care from those claimed by a vocal minority of “victims”. However, those voices are rarely heard’ (Smith 2008, 32).

A desire to be on the side of the underdog is natural. However, adequate critical analysis is vital. A more versatile approach would utilise stories from a spectrum of interested parties

in order to bring some balance to a debate currently dominated and distorted by a small number of ‘victim’ accounts. These accounts need to set these alongside the stories of other former residents of care homes who recount very different experiences and those of staff who worked in care homes. Very often these are the silenced voices in this debate (Smith 2010, 316).

Thirdly, in Catholic Church sexual abuse the harms suffered by victims are publicly recognised more and more. Yet, other ‘victims’, so to speak, are unrecognised in redress schemes, changes to laws, and civil litigation. Legal scholars note that in the Catholic Church harm of a different kind which garners less attention was experienced by indirect victims. The indirect victims are those served by churches, or who are members of churches, which compensate victims of sexual abuse (Schiltz 2003).

In the United States, some see a threat to religious liberty (Paprocki 2009; Schiltz 2003). The financial survival of churches appears to be in the hands of various judges, jurors and lawyers. The worry is that with

The gun of clergy sexual misconduct litigation pointed at their heads, churches may stop acting like churches. Like all earthly institutions, churches are deeply flawed, and some church leaders have made horrendous mistakes. Over the centuries, though, churches have been a force for incalculable good. Today churches provide food to millions who are hungry, clothing to millions who are naked, shelter to millions who are homeless, education to millions who are uneducated, medical care to millions who are sick, and comfort to millions who are dying. […].Clergy sexual misconduct litigation, however, has the potential to create a new class of victims, much larger than those now involved in suing churches. (Schiltz 2003, 974)

That is, the wrong people are being targeted.

Bishop Thomas Paprocki, a member of the Illinois Bar and a canon lawyer, sees how victims of sexual abuse in a strictly secular matter have been injured and need to be compensated by those responsible for the harm. Nevertheless, he thinks the current approach

of awarding unchecked monetary damages to victims not only is contrary to the purposes of tort liability theory, but also places an excessive burden on the free exercise of religion for Catholics in the United States. If the purposes of such damages in civil cases are not only to compensate for harm, but also to punish wrongdoers and deter wrongful conduct, the settlement or award of civil damages is punishing the wrong people, namely, the average parishioner or donors whose financial contributions support the Church, but who have no role in the supervision of clergy. (Paprocki 2009, 6)

Dioceses are sued because plaintiffs and their lawyers apparently see ‘deep pockets’ (Paprocki 2009, 6–7; Morrisey 2001), compared to those of clergy perpetrators. Yet those pockets are not as deep as some assume – for example, chapels and shrines are not easily convertible into liquid assets. Civil litigation arises probably because of anger of victims and church members at bishops; however, a lawsuit against a diocese punishes more the Church's charitable programs and social outreach rather than the bishop (Paprocki 2009).

Fourthly, the accounts heard in the inquiries which prompted the above factors and changes require questioning. An established group identity may apply in the stories told, but identity is constructed in processes, for example the ‘care-leaver’ identity based on the lived experience of hardship. Researchers find that representations of care-leavers ‘need to be questioned, even when produced by people with care experience, especially when those representations are primarily of victims or survivors and lead to a reductionist view of a socially disadvantaged group’ (Evans 2019, 42).

But such research attracts criticism. Scholars can be subjected to negative media and professional attention for questioning dominant narratives of historical abuse in residential childcare. Still, enquiring about the construction of abuse narratives echoes emerging global research even in emotive subjects which do not align with single, orthodox and ‘correct’ thinking of activist groups (Fenton and Smith 2019). ‘Questioning the nature or extent of abuse can lead to visceral denunciation from child protection professionals and accusations of being part of a backlash against child protection’ (Smith 2008, 32).

Finally, the doubtful and false claims need scrutiny, which is challenging in light of the changes and factors discussed above. These false and doubtful claims are more likely when financial payments are available and can determine influence historical abuse allegations made, which is aided by some lawyers who place advertisements offering their services and even soliciting ‘victims’ (Smith 2008), although other studies contest the notion that monetary redress is ‘determinant’ for care-leavers to come forward and tell their stories (Sköld 2016).

In Catholic contexts, the late pioneer Canadian canonist Francis G. Morrisey OMI found numerous cases of persons making unsubstantiated or false allegations against clergy.

It is not impossible that some of these false accusations arose from the hope of gaining the same type of monetary award as the real victims received. There are also many documented instances where lawyers even went seeking out people, suggesting to them that they were abused in their youth and offering to introduce suits against the Church on their behalf on a contingency basis. In other words, if the alleged victims didn't receive any award, there would be no payment due to the law firms; if they won, the lawyers would receive a percentage of the award (Morrisey 2001, 407).

The conclusions of the scholars cited above are not found in popular reporting about the Catholic Church and sexual abuse. To present a different story is an almost insurmountable challenge. But changes can come from within. One way is through what the Church does internally. Another way is what the Church thinks and communicates externally.

First, an alternative vision can be articulated by the way the Church acts ad intra. A priest who has not been found guilty is quickly condemned by the courts of public opinion, informed by the secular press, using manipulated information which then threatens his reputation (Pujol Soler and de Oca Valero 2022). Instead, the Church should set an example, calmly investigating and reaching a just decision using proper processes. The findings should not be swayed by popular opinion, and communications ought to respect human dignity and the common good.

A second way is to communicate the Church’s ideas ad extra. To shift the narrative requires astuteness and alternative means. Consider the country of Nigeria, ruled by three military regimes from 1985 and 1999 (Umezurike 2020). Media organisations which published the writings of activists could not survive. Umezurike (2020) recalls how numerous publishers experienced mounting costs of book production, declining readership and foreign exchange shortage. They swiftly rejected any manuscript critical of Nigerian military rule because it was too risky to personal safety. Such unwillingness of mainstream publishers to publish books or even offer a forum for writers to make political comments did inspire some Nigerians to consider self-publishing.

Similarly, the reluctance of news programs, politicians and social commentators to think and write favourably about the Church’s story, could encourage academic self-publishing, e.g. self-archiving in open access repositories and open access book publishing. Most academic materials are produced electronic form, often lacking a paper-based version, and electronic publishing saves on up-front publishing costs, storage space, and fast circulation to the online scholarly communities (Cordón-García et al. 2013).

Another alternative is social media. Academic users share content in order to find professional recognition, possible work, and audiences on social media platforms which are described as ‘affinity spaces’ (Hai-Jew 2015, 334). Those with like interests can meet others and exchange ideas. Discourses in social media ‘shape public opinion, build connections, inform decision-making, and highlight various social structures of inequity in tangible ways’ (Bhattacharya 2015, 26).

Some warn about social media’s anonymity, disconnection from real-world persons, unchecked freedom of expression, harassment, hatred, racism, sexism and awful comments (Lawprofblawg and Bush 2018; McPeak 2019). Other risks of digital formats include inadequate depth and absence of nuance; however, such risks are matched by the advantages of new ways to spread ideas, forge links with like-minded scholars, and allow minority viewpoints to be heard through blogging and tweeting. Digital formats thus grow the readership of academic work (Lobel 2018, Roberts 2018; Budge, Lemon and McPherson 2016).

Twitter is a case in point. Its strict character limits can foster swift responsive opinions which are ‘arguably the antithesis of scholarship. And yet there is little doubt that Twitter has an increasingly important role in public discourse and legal discourse in particular’ (Hessick 2018). Catholic users can look to Pope Francis who has an account (@Pontifex) and the account’s influence has been researched (De Uribe Salazar, Marqués Pascual and Fondevila Gascón 2016), for example on Covid-19 vaccination Gaweł et al. 2021).

The communication of an alternative narrative also means upholding and believing in academic freedom. For scholars, this freedom involves

the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies. (UNESCO 1998, 30)

Conversely, academic freedom is threatened by authorities such as state, church, and ‘by other power groups in society’ (Machlup 1955, 754), who instil fear in academics, writers, teachers, and students which curtails their liberty to probe, think and publish.

While there is a body of literature produced by those distressed about the movements against academic freedom, there is less literature about the means of repelling the assaults (M.A. Francis 2020). One strategy is for scholars to continue their investigations without anxieties and to communicate their findings. Through presenting qualitative research, researchers can say what many dare not, and break silence in politically difficult contexts (Zapata-Sepulveda 2021).

Then, editors of journals, authors, referees, and publishers also have responsibilities that are vital for the quality, moral integrity and future viability of academic research (Corlett 2009). These responsibilities include communicating research about the Catholic Church that does not align with popular media, with their editorial positions, or with the views of a public informed by a one-dimensional account.

Academic freedom carries with it ‘the duty to use that freedom in a manner consistent with the scholarly obligation to base research on an honest search for truth’ (UNESCO 1998, 30), which is subsequently authentically communicated for reasons of good scholarship. This is the subject of our next part.

4. Magisterium of the Catholic Church on the truth of social communications

When confronting difficult claims, Catholic organisations can respond guided by the Magisterium, which has helpful insights on the truth of social communications. The Church imparts a deeper understanding of truth and its implications. There are seven broad themes emerging from the magisterial teachings of the Second Vatican Council, the teachings of the popes from Pope Saint Paul VI to Pope Francis, and the documents issued by the various Pontifical Councils overseeing social communications, along with the various papal messages for the World Day of Communications. These are resources for lawyers and church leaders to ponder.

4.1. Truth and social communications

The truth is as important in popular social communications as it is for legal proceedings. The Church speaks about truth in the context of advertising, in which there is a subtle temptation: without necessarily asserting what is clearly false, advertising can withhold relevant facts and distort the truth by implying things that are not so (Pontifical Council for Social Communications 1997).

Similarly, any propaganda campaign ought to be rejected that intentionally misrepresents reality, or that distorts human minds with selective reporting, half-truths, or serious omissions, which reduce human freedom of decision (Pontifical Council for the Instruments of Social Communication 1971). In the Covid-19 global pandemic, anti-vaccine propaganda resulted in online anti-vaccine disinformation which seriously reduced international vaccine uptake (Jiang et al. 2021).

In the social communications of news, there is the recent phenomena of ‘fake news’ which refers to false information spread as news using non-existent or distorted data, intended to deceive and manipulate the reader (Francis 2018). Fake news is powerful, says Pope Francis, because of its ability to imitate real news as plausible, since

It grasps people’s attention by appealing to stereotypes and common social prejudices, and exploiting instantaneous emotions like anxiety, contempt, anger and frustration. The difficulty of unmasking and eliminating fake news is due also to the fact that many people interact in homogeneous digital environments impervious to differing perspectives and opinions. (Francis 2018, 1)

While newer technologies in the world of communication, such as ‘participatory networks’, contain possibilities for the exchange of information, the risks include ‘the prevalence of the most convincing opinion over the desire for truth’ (Benedict XVI 2011b). Where respect for the truth is deficient, the means of social communication can be a commanding force for injustice (John Paul II 1991). An unjust situation is deeply felt by Church defendants today.

In short, the Church’s magisterium is aware of communications where missing information becomes misinformation, fake news is disinformation exploiting social prejudices, and where strong opinions outweigh a yearning for truth. Such realities prevail for institutional Church defendants, e.g. abuse compensation lawyers as discussed above and their way of soliciting potential clients (Morrisey 2001). The Church’s message to lawyers is to make only truthful claims on behalf of plaintiffs.

Nonetheless, another change seen earlier, namely, a lower burden of proof, and doubtful or exaggerated claims, ought not drive a lower respect for truth. The popular public perceptions of ecclesiastical child sexual abuse are based on reprehensible historical offending, yet in many cases this has become a prejudice on the side of allegations particularly against elderly or deceased perpetrators. If the Church as defendant cannot alter the way plaintiff law firms operate and advertise, then it can set a good example in how it defends the claims brought against it through a respect for truth in its communications.

The tragedy of disinformation is that it discredits others, presenting them as enemies, to the point of demonizing them and fomenting conflict (Francis 2018, 1). In an adversarial legal system, even with alternative methods of dispute resolution, the conflicts should be minimised through a profound esteem for truth by all parties.

4.2. The media and their reporting

Communicators have occasions to promote the good of humanity by avoiding today’s conspiracy against life and transmitting the truth about the dignity and value of each human person (John Paul II 2005a). That is, ‘Communication in any form must always be inspired by the ethical criterion of respect for the truth and for the dignity of the human person’ (John Paul II 2004).

Saint John Paul II holds that freedom is a prerequisite of true peace and is one of its most precious fruits. ‘The media serve freedom by serving truth: they obstruct freedom to the extent that they depart from what is true by disseminating falsehoods or creating a climate of unsound emotional reaction to events… Their privileged status obliges the media to rise above purely commercial concerns and serve society's true needs and interests’ (John Paul II 2003a, 5). Moreover, he says, reporters and commentators have a duty to oppose pressure to adjust the truth to satisfy the demands of political power or money.

This message should be heeded by journalists reporting about the Catholic Church, which can help tell the Church’s stories after all the changes outlined in the first part. While clerical child sexual abuse is not limited to Catholic institutions, there is anti-Catholic media and political bias (Rashid and Barron 2019). A study of Pope Francis’s visit to Ireland in 2018 revealed how the Irish Times newspaper concentrated on sexual abuse as the most persistent theme in its coverage, and that it highlighted abuse survivor Marie Collins and former President Mary McAleese. They were ‘depicted as alternative moral authorities, superior to the Pope and the institutional Church’ (Ganiel 2021, 457).

The Australian researcher Virginia Miller also found that much of the media coverage has been false and that

the findings of the Royal Commission were not presented in a way which was fair to the Church […] Largely due to media reporting, there’s a false impression in the minds of the public that particularly clerics, but also Church workers, are more likely to abuse children than those in the general public or in other institutions…. This is just plainly false. And this impression needs to be corrected, in my view. (ACBC Media Blog 2021)

Miller also found ‘it is very easy to get work published that’s condemning of the Church’ (ACBC Media Blog 2021), however it was tougher to have a book published in Australia which details an alternative position.

4.3. Justice, freedom, communion, and dialogue

Truth in social communications is eminently connected with Catholic social teaching. A love of truth and respect for human dignity are ‘the scope of every social communications’ (John Paul I 1978). Pope St. John Paul II reminded communicators that their employment demands love, justice, truth, and freedom. ‘Truth must never be distorted, justice neglected, love forgotten, if one is to observe ethical standards’ (John Paul II 1981). He names the great contemporary challenge for all people of good will and believers, ‘that of maintaining truthful and free communication which will help consolidate integral progress in the world’ (John Paul II 2005, 13).

Truth in communicating also promotes the community. The means of social communication are a forum for truthful information exchanges, along with constructive ideas and sound values, which creates community (John Paul II 1998). ‘Communication must always be truthful, since truth is essential to individual liberty and to authentic community among persons’ (Pontifical Council for Social Communications 2000, 20).

A reoccurring biblical foundation is found in St. Paul’s Letter to the Ephesians ‘Therefore, putting away falsehood, speak the truth, each to his neighbour, for we are members one of another’ (Ephesians 4:25). Pope Francis explains:

Being members one of another is the profound motivation with which the Apostle invites us to put away falsehood and speak the truth: the duty to guard the truth springs from the need not to belie the mutual relationship of communion. Truth is revealed in communion. Lies, on the other hand, are a selfish refusal to recognize that we are members of one body; they are a refusal to give ourselves to others, thus losing the only way to find ourselves. (Francis 2019a)

Commenting too on Ephesians 4:25, Saint John Paul II wrote, ‘These words of the Apostle form an apt summary of what should be two basic aims of modern social communications: making the truth ever more widely known, and increasing solidarity within the human family’ (John Paul II 2003). He later recommended the same Pauline teaching to those in communications, such as professional communicators and politicians (John Paul II 2005b, 14).

In practice, this simply implies sincere interchanges to counter the ten factors and changes seen earlier. It is important for the parties involved in social communication and legal disputes to ‘engage in such dialogue and submit themselves to the truth about what is good’ (Pontifical Council for Social Communications, Ethics in Communications 2000, 12). If the side of the plaintiff does not engage in such dialogue, then the Church as defendant can make the offer again and again.

The changed laws about naming of an entity to sue and changes to the statute of limitations undoubtedly assist victims of abuse to seek justice and dignity through the common law. Justice and solidarity are also served when lawyers, legislators, judges and juries uphold the dignity of the Church, which comprises many baptised persons as explained above who are innocent of the crimes committed by those acting in the name of the Church (Paprocki 2009).

4.4. Witnesses: personal and ecclesial

Social communications even in the digital realm must develop true encounters. ‘The impartiality of media is merely an appearance; only those who go out of themselves in their communication can become a true point of reference for others’ (Francis 2014). Truth in social communications is personal and involves a personal commitment of witness.

If you want to communicate just one truth without goodness and beauty, stop, do not do it. If you want to communicate a truth more or less, but without involving yourselves, without witnessing to that truth with your own life, with your own flesh, stop, do not do it. There is always the signature of witness in each of the things we do (Francis 2019b).

Moreover, ‘We cannot truly communicate unless we become personally involved, unless we can personally attest to the truth of the message we convey’ (Francis 2020).

Yet, the Catholic Church sets a high standard for itself. The Church's communication ‘should be exemplary, reflecting the highest standards of truthfulness, accountability, sensitivity to human rights, and other relevant principles and norms’ (Pontifical Council for Social Communications 2000, 26). This is because the Church sees herself as a communio, ‘a communion of persons and eucharistic communities arising from and mirroring the communion of the Trinity; communication therefore is of the essence of the Church’ (Pontifical Council for Social Communications 2002, 3).

Thus, returning to the legal world after the ten changes and factors, in civil lawsuit settlement conferences and mediations the Church witnesses by personal involvement, pastoral concern for the other party, analysing their claims truthfully, and paying just compensation. Sometimes it means accepting the hard fact of a commercial decision to save on long-term costs rather than pursue expensive litigation against what seems a false or dubious claim which the Church finds difficult to defend, and yet a permanent stay of proceedings is difficult to secure. The value of witnesses should not be underestimated. Even the Truth himself (John 14:16), Jesus, could not escape death in a judge-alone trial before the Roman governor Pontius Pilate (Luke 23:1-24).

4.5. Right to truth

Truth in social communications is enormously important for social and political thought. There are several dimensions. On the dissemination of information, the magisterium sees legal frameworks of states as exercising a regulatory role. Civil laws should ‘protect and foster the right of all who use the social communications media to a truthful presentation of the facts’ (Congregation for the Doctrine of the Faith 1992, introduction).

This echoes the ideas of Pope St. Paul VI on human rights in a community. ‘To be given the truth is a fundamental right of the person, rooted in human nature itself, and closely connected with that right to belong and participate, which present day evolution tends to guarantee to very member of society’ (Paul VI 1978).

The state and its legal and judicial systems benefit from upholding truth in social communications, since it can foster a functioning civil society ordered to the good of all. The Church teaches that information provided by the media is ‘at the service of the common good. Society has a right to information based on truth, freedom, justice, and solidarity’ (Catechism of the Catholic Church 2000, 2494). The rightful exercise of this right ‘demands that the content of the communication be true and – within the limits set by justice and charity – complete’ (Vatican II, 1963, 5).

Nonetheless, there are also dangers when truth may seem to be falsehood, good may appear to be evil, and when sacred things, moral principles and truth can be directly or indirectly tarnished or contested in communications (Paul VI 1978). Wherever social communications do not manifest truth, they take away hope, and humanity experiences enslavement, oppression, and despair (John Paul II 1985).

Another danger is that media culture is deeply saturated with a typically postmodern notion that ‘the only absolute truth is that there are no absolute truths or that, if there were, they would be inaccessible to human reason and therefore irrelevant. In such a view, what matters is not the truth but ‘the story’; if something is newsworthy or entertaining, the temptation to set aside considerations of truth becomes almost irresistible’ (John Paul II 2001, 3).

The associated philosophical foundations which pertain to the anthropological and social aspects of persons are outlined by Saint John Paul II:

Logical truth consists in the conformity of mental concepts to actual reality, and it is here where the unscrupulous have sought to portray through the communications media a false reality so that human minds might be deceived and hence controlled – so that human thought might reflect not the world as it is but a vision of the world which a minority might wish to impose. (John Paul II 1985)

Eternal questions manifest the human desire for transcendence and longing for authentic forms of life. This uniquely spiritual yearning impels the search for truth and for communion, which then inspires persons to communicate with integrity and honesty (Benedict XVI 2011a). Indeed, ‘one might even say that seeking and presenting the truth about humanity constitutes the highest vocation of social communication’ (Benedict XVI 2008).

Note the order: the desire for transcendence and the search for truth inspire people to communicate truthfully. In a secular society frequently devoid of transcendence, other notions of truth may affect lawyers and their pleadings, resulting in ‘the “craftiness” and “politicking” of litigators’ (Burns 1985, 275; Fernandez 2009). Church defendants offer reverence to a heavenly realm and this inspires their pursuit of truth, which informs their evaluation of claims, probing of doubts, refutation of false statements and communication of their findings.

4.6. Communication: communicator, recipient, and truth as the fruit

Truth in social communications is an intricate matter as it involves persons, processes, and relationships of good will. In other words, the communicators, their communications, the recipients of communications, and the fruits of communications.

Personal qualities alone are insufficient. There are subjective and objective dimensions: the messenger and the message need to comply with truthfulness. ‘Good intentions and a clear conscience do not thereby make a communication sound and reliable. A communication must state the truth. It must accurately reflect the situation with all its implications’ (Pontifical Council for the Instruments of Social Communication 1971, 17).

Building on the truth of the message and messenger, within human interactions there is a search of truth which is profoundly felt (Benedict XVI 2012; Francis 2018). ‘When people exchange information, they are already sharing themselves, their view of the world, their hopes, their ideals’ (Benedict XVI 2012). A significant way to offer Christian witness is willingness to give oneself to others by respectfully responding to their questions with patience as they advance in their quest for truth and the meaning of human existence (Benedict XVI 2013).

Yet, one ought not be fearful that the Church’s standards are unreachable.

Every fact has its own truth, but even a straight and simple fact can have many angles, so it is not always easy to grasp the truth of it in its entirety. But that is not to say that it is impossible; far from it. Given the combined diligence and the combined sincerity of the person who communicates the fact and the person to whom it is communicated, there is a very good guarantee that ‘the truth, the whole truth and nothing but the truth’ will be safely transmitted. (Paul VI 1972, 1)

Even with the sincerity of the parties in communications, the magisterium has a further test. Discerning the truth entails communion and promoting goodness rather than division and isolation. We grasp truth, not when it is imposed from without, ‘as something impersonal, but only when it flows from free relationships between persons, from listening to one another’ (Francis 2018, 3).

A touchstone of truth is the fruits of communication.

An impeccable argument can indeed rest on undeniable facts, but if it is used to hurt another and to discredit that person in the eyes of others, however correct it may appear, it is not truthful. We can recognize the truth of statements from their fruits: whether they provoke quarrels, foment division, encourage resignation; or, on the other hand, they promote informed and mature reflection leading to constructive dialogue and fruitful results. (Francis 2018, 3)

Overall, the Catholic teachings present challenges because the teachings imagine sincerity from all parties to promote communion, which seems far removed the situation produced by the factors and changes discussed in the first part, which fosters more litigation. In practice, the teachings seem idealistic when the qualities called for by the magisterial teachings are scarce in adversarial disputes, with their full-bodied interlocutory exchanges between lawyers. Elsewhere, dialogue is impossible in nonjudicial claims with no appeal process against a decision, or when in a legal claim it is too overpriced or too perilous to appeal a court judgement. Accordingly, the magisterial insights have more application where dialogue is possible, e.g. mediations and settlement conferences which negotiate a compensation sum and legal costs. Nevertheless, Catholic defendants have numerous forces against them and negotiate from a feeble position.

4.7. Jesus Christ, truth, and communications

All social communications is subservient to a higher truth: what message is more important ‘than the truth concerning our very existence: the truth of where we come from, where we are going and how to get there – our origin in creation by God, our destiny in heaven with God, and our acceptance and following of Jesus Christ, the Way, and the Truth and the Life?’ (John Paul II 1996).

Jesus is the ‘sum total of Revelation’ (Vatican II, 1965, 2); an act of divine revelation is an act of communication. This communication of truth can bring a salvific power, ‘which comes from the person of Christ… In Jesus' words and deeds the Word is liberating, redemptive, for all humankind. This loving self-revelation of God, combined with humanity's response of faith, constitutes a profound dialogue’ (Pontifical Council for Social Communications 1992, 6).

A principle emerges. The ultimate paradigm is Jesus Christ called ‘the perfect communicator’ and ‘the norm and model of the Church's approach to communication’ (Pontifical Council for Social Communications 2002, 12). He is ‘the model and the standard of our communicating’ (Pontifical Council for Social Communications 2000, 33).

This Christological communication leads to mission. The Church’s most urgent message concerns knowledge of Jesus Christ and what he offers. ‘This is something she must put before the people of every age, inviting them to embrace the Gospel out of love, ever mindful that “truth cannot impose itself except by virtue of its own truth, which wins over the mind with both gentleness and power”’ (Dignitatis Humanae, 1)’ (John Paul II 1990).

Pope Francis teaches that Christ is the truth himself, whose gentle mercy is the benchmark.

Our primary task is to uphold the truth with love (cf. Eph 4:15). Only words spoken with love and accompanied by meekness and mercy can touch our sinful hearts. Harsh and moralistic words and actions risk further alienating those whom we wish to lead to conversion and freedom, reinforcing their sense of rejection and defensiveness. (Francis 2016)

There is also the Trinitarian dimension. All communication has its ultimate source in the life of the triune God, who shares with us the richness of his divine life and calls us to communicate that treasure to others by our unity in the service of his truth (Francis 2020).

Despite the factors and changes described above, those defending the Church should know of its centredness on Jesus Christ. In facing legal situations that are not right and just, and amidst anxieties about financial capacity, the Church still communicates Jesus Christ. Mounting a legal defence is a work of the Church when responding to claims arising out of sexual abuse allegedly perpetrated by those ministering immorally in the name of the ecclesial community. The Church is actually on mission when responding to claims, bringing Jesus and his manner of communicating which upholds the truth in love. Such considerations transcend the matter of damages claimed or awarded, a new legal setting, and pressures faced by the Church.

5. Conclusions

The wisdom of the Church has abundant inspiration for consideration. ‘The fundamental moral requirement of all communication is respect for and service of the truth’ (John Paul II 2003a, 3), and this applies to communications in legal processes, and to communications by parties, legal practitioners and other officers involved with judicial and nonjudicial claims. Even if lawyer/client communications between the Church and its lawyers has been subject to secular scrutiny (Foley 2015).

There is an ‘obligation to truth and its completeness’ which includes the obligation to avoid any manipulation of truth such as purposely overlooking particular issues so that others may be disproportionately emphasized, or modifying or withholding information in such a way as to make society less capable of resisting the imposition of ideologies (John Paul II 1987).

The Church as an institutional respondent has an obligation to counter false, doubtful or extravagant claims. Such claims are like fake news. ‘Disinformation thus thrives on the absence of healthy confrontation with other sources of information that could effectively challenge prejudices and generate constructive dialogue; instead, it risks turning people into unwilling accomplices in spreading biased and baseless ideas’ (Francis 2018, 1).

This can be done by undertaking thorough fact-checks to verify all persons and locations; confirming the account against historical records, e.g. checking whether the claimant did in fact attend or take part in activities of the institution; obtaining professional assessments of the claimant; posing questions to claimant’s lawyers; and cross-examining the experts and any witnesses. These necessary stages of investigation can be difficult under the circumstances because adult survivors of childhood abuse experience trauma and asking questions may be seen as contrary to trauma-informed approaches to their recovery (Goldenson, Brodsky and Perlin 2022).

There is a duty to refute falsehoods which arise from the ‘crafty serpent’ in the Book of Genesis,

who, at the dawn of humanity, created the first fake news (cf. Gen 3:1-15), which began the tragic history of human sin, beginning with the first fratricide (cf. Gen 4) and issuing in the countless other evils committed against God, neighbour, society and creation. The strategy of this skilled ‘Father of Lies’ (Jn 8:44) is precisely mimicry, that sly and dangerous form of seduction that worms its way into the heart with false and alluring arguments. (Francis 2018, 2)

Pope Francis sees that the best solutions to falsehoods are people, not strategies, ‘people who are not greedy but ready to listen, people who make the effort to engage in sincere dialogue so that the truth can emerge; people who are attracted by goodness and take responsibility for how they use language’ (Francis 2018, 4). Such sentiments can be shared by Church defendants and lawyers. ‘The most radical antidote to the virus of falsehood is purification by the truth’ (Francis 2018, 3).

The Holy Father finds inspiration in a prayer of St. Francis of Assisi which is really a practice guide for Church personnel:

Lord, make us instruments of your peace.

Help us to recognize the evil latent in a communication that does not build communion.

Help us to remove the venom from our judgements.

Help us to speak about others as our brothers and sisters.

You are faithful and trustworthy; may our words be seeds of goodness for the world:

where there is shouting, let us practise listening;

where there is confusion, let us inspire harmony;

where there is ambiguity, let us bring clarity;

where there is exclusion, let us offer solidarity;

where there is sensationalism, let us use sobriety;

where there is superficiality, let us raise real questions;

where there is prejudice, let us awaken trust;

where there is hostility, let us bring respect;

where there is falsehood, let us bring truth.

Amen.

(Francis 2018, 4)

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No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Joseph Lee

Fr Joseph Lee is a priest of the Salesians of Don Bosco, Provincial Secretary of the Province of Mary Help of Christians, Australia-Pacific (Australia, New Zealand, Samoa, Fiji Islands), and assists with professional standards in the province’s Safeguarding Office. He studied science, education and theology in Australia, canon law in Ottawa, Canada, and as part of his studies also completed the courses offered for certification in safeguarding at the Centre for Safeguarding Minors and Vulnerable Persons, Saint Paul University, Ottawa. He is also a postgraduate supervisor in the Adelaide College of Divinity, Brooklyn Park, Australia.

Notes

1 Hamber and Lundy (2020) use the term victim to recognise the legal term for those who have suffered violations perpetrated by others, yet they acknowledged that the term victim can imply limited agency or resilience. For other victims, “historical abuse is not historical; they live with the consequences every day” (Hamber and Lundy 2020, 759). Still, others may feel that to be a ‘survivor’ one needs to have overcome being a victim. The terms can also influence the perceptions of other people (Schwark and Bohner 2019).

2 Bollard v. California Province of the Society of Jesus, 211 F.3d 1331 (9th Cir. 2000); Ellis v Pell [2006] NSWSC 109; Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 (16 March 2010); Stephensen v Salesian Society Inc; Easton v Salesian Society Inc (No 2) [2018] VSC 630; JCB v Bishop Paul Bird for the Diocese of Ballarat & Anor [2019] VSC 348; Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27; John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27; Lenscak v Trustees of the Marist Brothers (No 2) [2021] VSC 49; DP (a pseudonym) v Bishop Paul Bernard Bird [2021] VSC 850.

3 Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117 at 47.

4 Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117 at 149.

5 Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW); Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).

6 O’Dwyer v. The Daughters of Charity of St. Vincent de Paul [2015] IECA 226, “No one who has heard the plaintiff’s narrative in this case could be other than deeply moved by the poignant and tragic facts which this appeal discloses. The appeal must nonetheless be dealt with in accordance with law and since the action as against the first defendant is so plainly statute-barred, I must therefore dismiss the appeal.” (at 49).

7 Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld); Limitation (Childhood Abuse) (Scotland) Act 2017.

8 Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA), s.12; Children Legislation Amendment Act 2019 (Vic), s.32. As the note under the title of Civil Liability Amendment (Child Abuse)Act 2021 (NSW) states, “An Act to amend the Civil Liability Act 2002 to enable courts to set aside certain agreements that settled claims for child abuse where it is just and reasonable to do so and to ensure that Part 2A of that Act does not restrict awards of damages for child abuse. [Assented to 18 November 2021].”

9 JAS v The Trustees of the Christian Brothers [2018] WADC 169 at 28; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639, and confirmed in the appellate judgement Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328.

10 O'Connor v Comensoli [2022] VSC 313 at 589-592; Limitation of Actions Act 1985 (Vic), 27QE.

11 Lonergan v Trustees of The Sisters of Saint Joseph & Anor [2021] VSC 651, at 213-217.

12 TRG v The Board of Trustees of the Brisbane Grammar School [2019] QSC 157 at 245. See the current Limitations of Actions Act 1974 (Qld). The subsequent appeal by the plaintiff was dismissed in TRG v The Board of Trustees of the Brisbane Grammar School [2020] QCA 190. The application for special leave to appeal by refused by the High Court of Australia in TRG v The Board of Trustees of the Brisbane Grammar School [2021] HCATrans 92 (20 May 2021).

13 Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776; The Council of Trinity Grammar School v Anderson [2019] NSWCA 292. See also Fields v Trustees of the Marist Brothers [2022] NSWSC 739; and The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 setting aside the judgement in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2021] NSWSC 1204 which exercised the discretion not to grant a permanent stay. Instead, the NSW Court of Appeal ordered that the proceedings be permanently stayed.

14 Prince Alfred College Incorporated v ADC [2016] HCA 37 at 106.

15 Grant v Bishop Bird [2021] VSC 380 at 35.

16 Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 at 32.

17 WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639 at 204.

18 WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639 at 205.

19 Grant v Bird [2021] VSC 380 at 59.

20 Smith v The Council of Trinity Grammar School [2021] NSWSC 1592 at 185.

21 Explanatory Memorandum, National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 (Cth).