Jury Trials – A Right? A Privilege? Or An Obligation?

On 11 April 2012 the New South Wales Court of Criminal Appeal heard and appeal from a decision to grant a Muslim man a Judge only trial.  The man had argued that there was a negative sentiment in the community towards Muslims and specifically towards those Muslims who held ‘extreme’ views.  He was concerned that as a result of these negative community sentiments any jury empanelled to hear his case would be biased against him on the basis of his religious beliefs.  On the face of it this claim seems a little far-fetched – until the facts of this case are added to the mix.

In this case the man was accused of assaulting and attempting to murder his sister-in-law by holding her over the railings of a multi-story car park.  The reason for the alleged behaviour was that she had taken his wife to the breach without his permission.  His beliefs included the ‘right’ to control where his wife went and with whom and in taking her to the beach his sister-in-law had violated this ‘right’.

When these facts are added the man’s concerns become more real.  It is one thing to say that a jury would be prejudiced against someone with extreme religious views where the crime they are accused of has nothing to do with those beliefs.  In this case his extreme religious views are directly related to the crime and as a result his concerns now relate directly to things the jury will need to consider.

The Court of Criminal Appeal upheld the States appeal – The man could not have a judge only trial.  The case raises 2 important issues.  First could the religious beliefs of an accused and potential bias of the jury against those beliefs ever be enough to warrant a judge only trial and second what do we mean by the ‘Right’ to trial by jury.

In relation to the first of these issues there can be little doubt that there at least some negative community sentiment against Muslims generally and Muslims who hold extreme religious views specifically.  Reports such as Freedom of Religion and Belief in 21^st Century Australia  and Ismae  by the Australian Human Rights Commission have found there to be negative sentiment towards Muslims in the Australian community.   So it would seem that the Man’s concern that jurors might be prejudiced against his religion has at least some basis.  Although it would not be fair to imply that all juror would be biased in this way.

So on the face of it his concerns are justified and the judges of the Criminal Court of Appeal are wrong.  However this does not answer the question entirely.  If this man had been granted a Judge only trial on this basis – could this open the floodgates to other claims of this nature.  There is measurable negative community sentiment towards many different groups in society.  Think about sentiment towards Scientologists, Aboriginal Australians and in some sectors of the community gay and Lesbian people (I am sure you can add more to this list).  Could all of these people request a Judge only trial on the bias that the jury might be prejudiced against them because of their religious beliefs, cultural identify or  sexual orientation.

The second issue relates to jury trials and a right.  Even here in Australia where we have relatively few enshrined Human Rights we are familiar with and expect to be protected by the right to a trial by jury (although this right has been limited).   The question is when is a right an obligation and who owns this right anyway.  I would argue that a right includes the right not to take advantage fo that right.  So the right to a freedom of speech includes the right to say nothing.  The right to freedom of religion includes the right not to practice any religion.  So in theory the right to a trial by jury includes the right not to have a jury trial.  So if I am right the Court of Appeal is wrong.  Perhaps not.  Consider who hols this right.  Most rights are held be an individual against the state (or against other individuals).  But could the state hold that right on behalf of the community at large or on behalf of  an individual who cannot exercise it for themselves.

In a criminal trial the victim does not prosecute the offender – instead the State stands in their shoes and carries out the prosecution.  There are good reasons for this. One possibility is that the victim as well as the accused has a right to trial by jury.  The accused to have their case heard by a  panel of the peers and the same fro the victim.  Since the victim does not prosecute a criminal case the only person who can exercise this right is the State.  So even where an accused wishes not to have a jury a jury may still be used because it is the victim exercising their rights against the accused.

To be honest I have not yet made up my mind as to whether the Court of Criminal Appeal got it right.  As a lawyer my gut is to say – well a court made the decision so it is the law and I must accept it.  The academic in my says I should question the decision.  Has this man’s right not to have a jury trial been violated in favour of a victim who is not carrying out the prosecution anyway or (even worse) in favour of the state.  Should the fact that the community in general has a negative sentiment against a person allow them to have a judge only trial?  Is the case even stronger where that negative sentiment is backed up with research? Or is that taking things too far?

“Humbly relying on the blessing of Almighty God”

A curious feature of the Australian constitution is the reference to Almighty God in the pre-amble.  The full pre-amble states:

Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:– (emphasis added)

Given the constitution also contains s. 116 which at least in theory acts as a freedom of religion and separation of church and state clause the inclusion of God in the pre-amble is certainly curious, although not unique.  Canada also begins its constitution with a reference to God:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law (emphasis added)

And similarly contains a freedom of religion type provision:

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

(emphasis added)

 

Many counties in Europe, Asia and the middle East also have references to God in their constitutions.  While some of these States also have state churches or religions others do not.

Historically the Australian reference to God was more a vote buying exercise than a show of great faith or great piety.  During the drafting of the Australian constitution the Convention Delegates were acutely aware of the need to secure the votes of the greatest number of people as possible.  The difficulty when it came to religion was that there were two competing claims – both of which had a ground swell of popular support.  

On the one had there was a group led by secularists and Seventh Day Adventists.  This group wanted there to be no reference to God and if possible an American style freedom of religion clause.  The concern of these groups mostly related to Sabbath observance laws.  Seventh day Adventists celebrate the Sabbath on Saturday. At the time several states had Sabbath observance laws preventing people from working on Sunday.  This meant that Seventh Day Adventists and others (such as Jews) who celebrated the Sabbath on the Saturday were forced to take two days off from work rather than just one. They were concerned that unless the newly created Federal Government was prevented from legislated with respect to religion such laws might be imposed nationally.     he arguments mounted by these groups  along with arguments about state rights lead to the inclusion of s. 116.

On the other side of the debate was a group of Christian Churches who organized petitions requesting that the constitution have some reference to God.  This movement was pushed at the parish level and there was a real threat that if a reference to God was not included then these people would not vote for the Constitution.  

Faces with these two competing claims the delegates did the pragmatic thing and included both.

While this explains the historical inclusion of God in the Australian constitution it leaves unanswered the question of is it still relevant today?  In a country with multiple religious and a increasing proportion of the population who identify as atheist or agnostic is there still a place for God in the national Constitution.

Some would argue there is.  Christianity is still the largest religious grouping in Australian.  The section does not state which God which would mean you could add Muslims and Jews and any other religious group who revere a deity to swell the numbers of Australians to whom the reference is still relevant.   Further the reference is historical and provides a link to our pasts which was unquestionably majority Christian.

Others would argue a reference to God has no place in a modern Australian Constitution. Those who describe themselves as atheist or agnostic are now the second largest ‘religious/ belief system’ group in Australia.  The reference to just one God has no place in a society which is both multi-faith and multi-cultural.  

I am sure you can all come up with more arguments either for or against the continued place of God in Australia’s Constitution.

‘Mr’ or ‘Rev’ Slipper – Politician or Priest or Both

Peter Slipper has become a controversial figure in Australian politics.  Today I do not want to dwell on whether or not he missed used cab charges or whether or not he sexually harassed a staff member. I also don’t want to look at whether he should continue to fulfil the role of Speaker of the House.  Rather today I want to focus on his role with in the Traditional Anglican Communion.

The Traditional Anglican Communion is a breakaway group from Anglican Church (Also known as the Church of England).  According to news reports Peter Slipper is not only a member of this church he is an ordained one and holds the important office of Chancellor.  In response to the allegations made against Mr Slipper the Archbishop of the Traditional Anglican Communion has come out in support of Mr Slipper but at the same time has called for him to step down from his church roles until the matter is resolved. This saga raises some important issues. 

If, as news reports suggest, Mr Slipper is in fact an ordained member of the Traditional Anglican Church he has been very quiet about it.  He is always referred to both by the media and his political colleagues as ‘Mr’ rather than “Reverend’ – which if he is ordained may be more accurate.  Which Raises the first issue.  If a politician is also an ordained member of a religious organisation (or in a leadership role for those religions that do not ‘ordain their leadership) should this be revealed and made obvious.  I am not suggested that Mr Slipper has been trying to hide the fact he is an ordained priest.  Rather I am saying it is not something he has advertised.  Other ordained members of parliaments in Australia, such as Rev. Fred Nile, do use the term Reverend in their political life, although I suspect there are others who don’t.   Related to this is the thorny question of whether or not ordained members of religious organisations should serve in the parliament at all.

Australia has a long history of religious leaders also being political ones.  In the early colony the first two chaplains Rev. Richard Johnson and Samuel Marsden could often be better described as government officials than religious ministers.  Amongst the first elected members of ‘parliament’ in the early colony was the Reverend John Dunmore Lang – a Presbyterian minister.   I am sure you can all think of many other both historical and modern examples.  Despite this long history the legitimacy of such people sitting in parliament has been raised from time to time.  The question being how they can faithfully serve two masters – the church that ordained them and the people that elected them.

For my own part I have no problem with ordained members of a religious organisation running for and sitting in parliament on two conditions.  First they disclose that they are an ordained member of a religious organisation so their voters can properly asses them as a candidate.  Second that they are prepared to acknowledge that sometimes there may be conflict in their dual roles and act accordingly.

Oxford Journal of Law and Religion

This week has so far been a quite on in Australia for law and religion issues. So instead of a post on a substantive issue I thought I would alert you all to a new academic journal on Law and Religion. The Oxford Journal of Law and Religion launched its first issue this month. This new journal which is available free online in 2012 aims to “have a range of articles drawn from various sectors of the law and religion field, including: social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; empirical work on the place of religion in society; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.).”

The first issue has articles on a range of topics however the focus seems to be freedom of religion. There are some very eminent authors so this journal promises to be a trove of information for those of us interested in all things law and religion.

Public Hospitals – Private Beliefs

Generally I am an advocate of religious involvement in service provision.  I have no problem with religious organisations tendering for and being awarded contracts to provide government funded services.  The practice of having a private organisations provide government funded services is quite common in Australia and generally does not prose too many problems.  However a news story about the new public hospital in Midland Western Australia gave me pause this week.

For my none-Australian readers  I will provide some background to heal care services in Australia.  For my Australian readers you can skip the next paragraph.

In Australia health care is provided by both public and private hospitals.  Public hospitals are wholly funded by the government and provide free health care to everyone.   If you need an operation or treatment for an illness then you can go to a public hospital and receive the operation or treatment at no cost to you.  Public hospitals also provide elective surgeries at no cost to the patient –  but there can be a long waiting list.  Private hospitals also provide a full range of healthcare services – but they charge for providing these services.  Generally people only use private hospitals if they have private health insurance.  If a patient does not have private health insurance and they attend a private hospital then they will e liable for the full costs – even if they could have received the service free at a public hospital. The new hospital I am discussing is a public hospital.

As I said above it is not uncommon for private companies to provide public services – this is also true of hospitals.  The new hospital in Midland is to be a public hospital but the government’s intention is that it will be run by a private organisation.  The services it provides to patients will be paid for by the government – not the patient.

The difficulty in the case of the new Midland hospital is that the preferred private provider is St John of God –  a Catholic organisation.

St John of God has been providing health care services in private hospitals in Australia for many years.  There are several private St John of God hospitals.  At these private hospitals the health care services are provided in accordance with catholic beliefs and doctrine.  This means that they do not provide abortions or sterilisation treatments or council patients to use birth control.  I have no problem with this in the case of a private hospital.  Just as when you send your child to a private religious school you accept that the education will be in conformity with the religious beliefs and doctrines if you use a private religious hospital then you must accept that the hospital will be run according the religions beliefs and doctrines.  In Australia where public health care is both free and relatively available I see no problem with this approach.  If the local private hospital will not or cannot perform a procedure for any reasons (religious or not) then the patient can go to the public hospital and not only have the service provided but have it provided for free.

My concern is where a private organisation runs a public hospital and also runs that public hospital in accordance with their religious beliefs where those religious beliefs require that otherwise lawful procedures will not be performed.   The Government has responded to this criticism by suggesting that these services can still be provided at another hospital or medical provided an patients will simply be referred to these other providers.  While this might work for now I worry that allowing a provider of public services to pick and choose the services it provides on religious grounds sets a dangerous precedent.   Over time you could develop a situation where it becomes increasingly difficult to access abortions if more and more public health providers are managed by private organisations which will not perform procedures on religious grounds.   

I feel I need to add that I personally do not support abortion and would never have one.  But I also believe in freedom of conscience.  Just because I believe in something does not give me the right to impose my belief on someone else.   I have no problem with private Catholic hospitals refusing to perform certain procedures on the basis of their religious belief.  If I was a doctor I would probably refuse to perform abortions myself.  This though is a different issue.  For me the issue posed by a private religious organisation running a public hospital is whether when running that public hospital they should be entitled to run it according to their religious beliefs.

Religion in Two Constitutions – The First Amendment vs s. 116

This week I thought I’d address a technical legal issue – the similarity between the American First Amendment (and article VI s. 3) and Australia’s section 116 – the so called ‘freedom of religion’ clause in Australia’s constitution.

The American first amendment reads

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”

While Australia’s s. 116 reads

“The Commonwealth shall not make any law for establishing and religion, or for imposing and religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

Before discussing the similarities and differences between these two constitutional provisions it is important to understand that in the case of s. 116 lawyers usually talk about it having four ‘limbs’ or ‘clauses’.  These are:

1. The no establishment clause
2. The free exercise clause
3. The no religious observance clause; and
4. The no test for public office clause.

For convenience I will refer to these four ‘clauses’ in my discussion as it is a convenient way of delineating which part of the section we are talking about.  However s. 116 is just one provision and it is not formally divided into clauses as other parts of the Constitution are.

The first difference you might notice, before even reading either the American or Australian section, is that the Australian is a lot longer.  This is because the Australian s. 116 has two ‘clauses’ the American First Amendment doesn’t – the no religious observance clause and the no test for public office clause. 

The first (the no religious observance clause) is a bit of a mystery.  There is no American equivalent and no equivalent in any jurisdiction considered by Australia’s founding fathers.  It was added with little discussion at the constitutional Conventions and as such we legal historians are left to wonder how it got there.  One possibility relates to Sunday observance laws.  At the time of the Constitutional Conventions there was an ongoing debate in the Australian colonies over whether or not public amusements such as museums and libraries should be allowed to open on Sundays.  Whether Sunday newspapers should be allowed or not was a lot hotly contested.  Some colonies where all for Sunday entertainment while others weren’t.  One of the concerns raised by those states which allowed Sunday newspapers and public amusement on Sundays was that the new Federal Government might impose Sunday observance laws.  This clause of s. 116 would prevent that – if such laws were imposed as a ‘religious observance’

The second addition (the no test for public office) is less of a mystery.  Article VI s. 3 of the American constitution states:

“The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executives and judicial officers, both of the United States, and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

It is likely the Australian founding fathers used this provision as a template.

As may already be apparent the similarities between the American and Australian provisions are striking yet Australian courts have refused to follow American precedent in interpreting s. 116.  Most strikingly in Australia Federal funding of religiously run primary and secondary schools in permissible (including per capita grants paid directly to the schools) while in America such funding is unconstitutional.  There are two explanations given by Australian judges for this First wording and second history.

This clause [the First Amendment] has assumed an honoured place in the American Bill of Rights. The history surrounding its interpretation … is a very striking one, so much so that even a close correspondence between its words and those of s 116 would not of itself justify this court in adopting the same construction of the provisions as has developed in the United States. I respectfully endorse what Gibbs J said recently in Australian Conservation Foundation Inc v Commonwealth

“Although we naturally regard the decisions of the Supreme Court of the United States with the greatest respect, it must never be forgotten that they are often given against a different constitutional, legal and social background from that which exists in Australia.” [1]

First let’s deal with wording.  The American provision begins “Congress shall make no law respecting … while Australia’s s. 116 starts  “The Commonwealth shall not make any law for …”  This different wording has been held to be significant by Australian judges.  In Australia in order for a law to infringe s. 116 the law must have the purpose of establishing religion or restricting its free exercise (for example) while in the US a much broader range of laws have been found to be unconstitutional.  The US courts are able to look more at the effect of the law while Australian courts can only look at the purpose of the law.

The history of the two sections is also very different.  I thought I would list some of these differences:

1. The American Constitution was written in the wake of the War of Independence – no similar conflict ever existed in Australia
2. The First Amendment is in a Bill of Rights – Australia has no Bill of Rights
3. Despite appearing in the part of the constitution called ‘The States’ s. 116 does not apply to State governments – The First Amendment does
4. No states or colonies in Australia set up States Churches-  this was the case in America
5. While the American founding fathers exposed ideas about separation of church and State when writing the First Amendment the Australian founding fathers where mostly concerned about preserving states’ rights (as against federal power) and getting enough votes to  pass the Constitution
6. At the time the Constitution was written few immigrants had migrated to Australia to escape religious persecution – in the US many had moved to the US for exactly that reason

I’m sure there are many other differences between Australian and American history.  These are those that have occurred to me in my own research on these provisions.

In future posts I hope to elaborate on how s. 116 has been interpreted by Australian courts and explain why we have only as limited freedom of religion in Australia.  For my Australian readers who would like to know a little more about the history of religion in America there is an excellent documentary series called God in America which is well worth a look.

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[1] Attorney General (vic); ex rel Black v The Commonwealth [1980 – 1981] 146 CLR 559, 652

Arranged, Forced and Servile Marriages – When ‘I do’ really means ‘I must’

Over the last few months the issue of arranges, forced and servile marriages has captured the attention of the media and the public in Australia.  The reason is a string of cases in 2010 and 2011 concerning young girls who were about to be (or in the case of one had been) forced to marry by their families.  In the cases of Department of Human Services v Brouker, Kandal v Khyatt  and Madley v Madley the young girls were about to be removed from Australia for the purpose of being married – all were under 18 years.  In all three cases the court was able to sue provisions of the Family Law Act which require parents to act in the best interest of their children to place the girls on airport watch lists – effectively preventing the marriages.  In the fourth case, Kreet v Sampir the marriage had already taken place.  The court was able to use provisions of the Marriage Act to annul the marriage on the basis that there had been not real consent, a requirement under Australian law.  In recent week there have been a number of media stories about arranged marriage.  SBS’s Insight program recently featured arranged marriage and tonight (Monday 2 April 2012) ABC’s Four Corner’s program will feature a story on arranged marriage. 

The first point I must make is that there is a difference between arranged ,marriages on the one hand and forced and servile marriages on the other. While the difference may be a matter of degree in some cases I feel the distinction is important.  In an arranged marriage both parties freely consent both to the arranging and to the eventual marriage.  In many ways such a marriage is similar to the ‘normal’ western marriage.  The only ‘real’ differences is how they meet and what they expect out of the marriage.  There is still a ‘getting to know each other’ phase before the marriage and both parties may pull out at any stage if they decide they are not suited to one another.  I have no problem with this modern form of arranged marriage.  In fact I can see several advantages to it.  Forced or servile marriages on the other hand are another story.

In late 2010 the Australian Federal Government released a discussion paper on forced and servile marriages. They have since released a draft exposure Bill entitled Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012.  Amoungst other things the Bill creates an offence of forced marriage:

270.7A Definition of forced marriage

(1) For the purposes of this Division, a marriage is a forced marriage  if, because of the use of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without freely and fully consenting.

(2) For the purposes of subsection (1), marriage includes the following:

(a) a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901;

(b) a marriage recognised under a law of a foreign country;

(c) a relationship registered (however that process is described) under a law of a foreign country, if the relationship is of the same, or a similar, type as any registered relationship within  the meaning of section 2E of the Acts Interpretation Act 1901;

(d) a marriage (including a relationship or marriage mentioned in paragraph (a), (b) or (c)) that is invalid, or not recognised by law, for any reason, including the following:

(i) a party to the marriage has not freely or fully consented  to the marriage (for example, because of natural, induced or age-related incapacity);  

(ii) a party to the marriage is married (within the meaning  of this subsection) to more than one person.

(3) Subsection (1) applies whether the coercion, threat or deception is 6 used against the victim or another person.

270.7B Forced marriage offences

(1) A person (the first person) commits an offence if:

(a) the first person engages in conduct; and

(b) the conduct causes another person to enter into a forced 15 marriage as the victim of the marriage.

(2) A person commits an offence if:

(a) the person is a party to a marriage (within the meaning of 23 section 270.7A); and

(b) the marriage is a forced marriage; and

(c) the person is not a victim of the forced marriage.

While these sections may be altered before the Bill is brought before parliament they give a good idea about what the government is thinking

Whenever the government changes the law ask myself: what does the law say now and does it need to be changed? To answer that I need to split the potential victims into two groups – those under 16 and those over 16. 

For those under 16 (and in the case of some laws 18) there are some protections in place.  As I mentioned above the Family Law Act contains provisions requiring a parent to act in the best interests of their child and empowering the courts to step in when they don’t.  Under the Marriage Act it is an offence to marry a minor (unless the person is over 16 and consent has been obtained from their parents and the courts – such consent is rare).  While this offence does not apply in Australia a marriage to a person who is under age will not be recognised as such on the couple’s return to Australia.  Finally there are laws making sexual intercourse with a person under 16 illegal whether or not they consent.  

For a person over 18 things are a little trickier.  The case of Kreet v Sampir demonstrates the operation of the provisions of the Marriage Act which require consent – so a marriage can be annulled if one of the parties does not consent.  Rape is still an offence inside marriage and in theory if a person did not consent to the marriage it is unlikely they will fully consent to sex conducted as party of that marriage. Finally some of the anti-slavery laws may be applicable but they have yet to be tested in the context of a forced or servile marriage.

This ignores a third group of victims – those whose marriages are never legally recognised in Australia.  Australia’s de-facto laws have created a situation where two people can live together in a  marriage like relationship (and may even call it a marriage) without ever having their relationship registered.  One of the ways of finding out about forced or servile marriages is when the couple come to be married by a marriage celebrant.  The celebrant (a third party) is then in a position to make sure every one consents and that both the bride and groom are over 18.  However I am aware of several couples who have gone through religious marriage ceremonies but have never had their marriage registered as such under Australian law.  They may choose to do this for a variety of reasons – most legitimate.  This kind of practice, however, could also be used to hid a forced or servile marriage until long after it happens (and potentially until the woman ends up at a hospital to give birth to their first child)

As I said above I have no problem with arranged marriage as such and even see some benefits to a society based on arranged marriages rather than love matches.  On the other hand I see benefit in laws which prevent forced marriages – whether the answer is criminal sanctions or civil penalties is something I will need to give more time to.  One thing I am sure of is that part of the answer is education.  Nothing can be done about a forced marriage unless some one knows is had or is about to happen.  A victim will only come forward if they know that what is happening to them violates their rights.  They can only do this if they know what those rights are.

A final point as this is a Law and Religion blog – while some religions encourage arranged marriages none of the major religions condone forced or servile marriages.  

While I can’t provide an internet link I must acknowledge the excellent article by Caroline Overington ‘The Wedding Vow’ which appeared in the Weekend Australian magazine 11 February 2012

Catholic Church Sex Scandal – The Next Chapter

Many of you would be familiar with the sex scandals that have rocked the Catholic Church all over the world.  From the inquiry in Ireland and the public apology to the jailing of American priests and bishops the scandal has rocked the Catholic community worldwide.  Even in my home country of Australia there have been accusations of sexual abuse by priests (including some priests who have been jailed)

One of the major features of the scandal was the ‘covering up of abuse’ by high ranking church officials.  I put ‘covering up’ in quotation marks not because I believe the church officials did the right thing but because I am willing to accept the argument that these officials did not perceive what they did as covering up.  Rather many seem to perceive their failure to report abuse to public authorities as part of their pastoral care to priests under their leadership.  In many cases the abusing priests were moved to new parishes or to placements which did not put them in direct contact with children.

The saga has now moved from prosecuting the abusers to prosecuting those who failed to report the abuse.  In many countries there is now legislation which mandates the reporting of child sexual abuse.  Failure to do so results in criminal penalties.  Most countries also have child endangerment offences –arguable knowing about ongoing child abuse and doing nothing amounts to endangering the children involved.  In America charges are currently being brought against Kansas City Roman Catholic Bishop Robert Finn after he failed to report the existence of child pornography on the computer of a Bishop under his authority.

This case raises all sorts of questions and issues.  There is the issue of the separation of church and state and the interference of the state on internal discipline in a religious order. I often feel this is over stated.  If a department store manager discovered child pornography on the computer of a worker they would have their own internal mechanisms for dealing with that employee (probably by firing them) similarly the Catholic Church (and other religious organisations) also have internal mechanisms for dealing with people who have child pornography (or who are accused or proved to abuse children).  This may mean firing the priests but more often than not it means internal counselling, being moved to a low risk position etc.

Back at the department store the manger would also be expected to report the worker to the relevant authorities.  If they didn’t there would be an understandable outcry and it would be not defence to say they have their own internal way of dealing with the issue. They would not be able to claim their should be a separation of state and business. In the same way, I feel, a church arguing that they deal with these matters internally does not answer the charge.  This is not a separation of church and state issue as such. 

A more real issue, in my opinion, is the ritual of confession.  For those of you unfamiliar with this sacrament it involved a person confessing their sins to a priest who then gives them a  blessing and proclaims absolution 9or that they have been forgiven). This is obviously an oversimplification. For the Catholic church (and many others who practice this sacrament) the seal of the confession is absolute.  In other words the priest is not allowed to reveal what was said.  In the case of the Catholic Church priests who reveal what was said in the confessional can be defrocked (this means they are no longer a priest)

 The issue for the sex scandals is that in some instance the bishop or other high ranking church official became awar of the sex scandal as a result of a confession. They are now in a double bind.  They can’t reveal what the person told them because to do so would break one of the most sacred beliefs of their faith.  On the other hand they are required by law to reveal what was said.  The question becomes do they obey God’s law or man’s law? 

For those of you interested in this topic you might liek to see an academic paper I wrote on the issue of the confessional in Australia.

French Shooting – Do We Reap What We Sow? – An update

Since I posted yesterday things have moved quickly in the case of the shooting in France.  The police now have a suspect.  A Muslim man who is said to have links to Al Qaeda.  I am glad (in a way) that I and the Rabbi appear to be wrong about the shootings being linked to militant secularism preached by French politicians.  On the other hand this young man’s actions will undoubtedly only add fuel to the fire.  As the French election draws close those politicians who wish to capitalise on anti-Muslim sentiment now have a strong example of the kind of thing they have been saying will happen. For another take on this situation see this blog post by Question Everything. 

French Shooting – Do we reap what we sow?

Only yesterday I lamenting that it had been a slow couple of days for Law and Religion news stories – but I didn’t want this!! Three Jewish children and a Rabbi (The father to 2 of the children) where killed by a gun man outside a Jewish school in France. For those of you who are religious (no matter what your religion) I ask that you pray for the families of those killed. If you don’t have a faith then I ask you to spend a moment in mediation for these families.

Now onto more academic matters – what does this shooting say. The first thing I thought of when I heard this story on this news was ‘You reap what you sow’. In the last few years Europe and France more specifically have become synonymous with laws which in one way or another restrict the practice of religion. Think the ban on full face coverings (burqa laws) discussed in earlier posts and France’s ban on the wearing of religious symbols at public schools. My first thoughts were if you have laws and politicians marginalising certain groups and then those in the populace who already have discriminatory attitudes may be encouraged to act on those thinking they have the support of the state or at least the support of tune community. It turns out I wasn’t the only one thinking this way. In an interview Rabbi Pinchas Goldschmidt the President of the Conference of European Rabbi had similar things to say as did the editor at the Jewish Chronicle, Orlando Radice.

So am I and the Rabbi right? French politicians would no doubt argue that by banning the wearing of religious symbols in public schools they are creating an equal playing field and protecting the French identity and way of life. That an equal playing field promotes a harmonious society. But is that really the case? We will have to wait and see when this gun man is caught what his reasons were for this shooting (and the 2 others that are believed are linked).