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Beyond presumption?

April 8, 2020

 

 

Canon 220 of the Code of Canon Law encapsulates a principle common to both the civil and canonical traditions, namely: the presumption of innocence. In the field of safeguarding this irreplaceable component of justice has from time to time become obscured. This is not an issue confined to the Church or indeed, faith communities alone. It is a dilemma which is found to exist elsewhere under a number of guises. In the world of celebrity we have witnessed cases of excessively publicised arrests, the filming of execution of search warrants, and more recently the spectacular failure of criminal prosecutions. Amidst the furore, there was also the case of Carl Beech; where the complainant's allegations were received by the police as being of sufficient credibility to justify the public arrest of numerous senior public figures. Some carried the burden of the suspicion to their graves.  It would later be found that the allegations were in fact, completely fabricated. It is, of course, no consolation to those affected to know that their accuser is now serving an extended period of imprisonment.

 

The most recent demonstration of this kind is the case of Cardinal George Pell. If reports are accurate the Cardinal was a subject of investigation by the Australian police long before any potential complaint (or complainant) had been identified. In response to the prosecution, the defence ran a clear (some might say fundamental) defence: the incidents did not happen and could not have happened. To this end witnesses were called on behalf of Cardinal Pell. The sole purpose of this evidence was to testify that there was not and could not have been an opportunity for the alleged offences to have been committed on the dates in question.

 

As is now widely known, the conviction and dismissal of the Cardinal's first appeal were relied upon as proof positive that the reality was otherwise.  What was not made clear at that time was the very simple but remarkable feature of the prosecution's position: the absence of any material challenge to the honesty and reliability of defence witnesses. These witnesses (later to be termed the "opportunity witnesses") included Fr Portelli. As repeated in the course of the recent appeal judgement:

 

"Portelli's evidence in this respect was unchallenged……"

 

The evidence to which the appeal judges were referring confirmed two matters: (i) the Cardinal's practice of greeting people as they left the cathedral following the celebration of Mass; and (ii) the fact that the Cardinal was accompanied throughout the time he remained vested.  Given that the offences had allegedly occurred whilst the Cardinal was vested, the evidence was far from insignificant.  Portelli was the Master of Ceremonies who ensured compliance with these norms. This too was unchallenged Given the absence of any challenge by the prosecution, there was thus no reason for this evidence to be rejected.  Lest there be any doubt, the recent appeal decision records the basic but nonetheless important point: the honesty of these witnesses "was not in question". 

 

Put simply, the recent Appeal judgment communicates a very simple proposition: one which ought not require stating. Namely: the fact that an allegation may appear sincerely made, or indeed credible, marks the beginning of the analysis and enquiry not its conclusion. It certainly does not require that all other evidence is disregarded. However, as may well now be plain, the real question which arises from the exoneration of Cardinal Pell is: why was such a case allowed to advance so far? Some will point to desire on the part of the police to secure a conviction of a prominent Catholic Leader. Others may point to a media frenzy committed to fuelling not only an unsustainable case, but feeding the illegitimate expectations of the accuser. There will equally be those prepared to entertain more elaborate conspiracy theories. After all, fact is so often stranger than fiction.

 

Perhaps as we consider this case on Spy Wednesday, there is a more basic explanation: the demands of the mob to impose their ills upon another (i.e. a scapegoat). The scapegoat is of scriptural origin  (Leviticus 16.21). The goat is marked with the impurities of the community and sent out into the wilderness. Removed from its scriptural moorings,  the notion of the scapegoat in modern society bears a wider meaning. It represents all of those upon whom we apply our prejudices, ill-founded judgements, resentments and disappointments. Ultimately, the scapegoat is the bearer of that part of our identity (communal and individual) which we are least able to accept.  In our modern but intolerant relativist world, scapegoating is the means by which those who do not subscribe to prevailing social mores are eliminated. Was this the fate of Cardinal Pell? 

 

Within the secular world, the speculation around the State's pursuit of Cardinal Pell will continue for some time. As the Cardinal experiences his first days of liberation it will not be lost upon him during Holy Week, that he too was condemned and punished without cause, convicted in the face of the evidence, denied an authentic process. Perhaps he will find the texts of the Psalms particularly redolent of his own experience:

 

"All who see me deride me,

they curl their lips, they toss their heads"

 

Even now, despite his total exoneration, he continues to be subjected to the same derision and hostility. Perhaps in the end, his case had become a referendum upon the popularity of the Catholic Church in Australia. However, whatever the perspective of those external to the Church may be, the time has come for those within the Church to affirm the Cardinal as a man wrongly convicted. This is no mere conjecture. His status as an innocent man is beyond presumption.

 

The Catholic Church and its hierarchy owes this to him. It is presented with an opportunity to affirm the authenticity of its commitment to justice. However, given the prevailing appetite for ambiguity, it may be the case that within the church there is need for guidance as to how to respond in a case such as this. Approaching this question, church leaders would do well to reflect upon the fact that these proceedings started with a putative victim. The judicial process has ended with the declaration of a victim: one who has been incarcerated for over 400 days despite his innocence. That is to say one who is in need of restoration and protection.

 

Our Saviour gave us clear guidance as to how we are required to engage with cases of injustice; whether caused by our own acts or omissions or otherwise. This guidance is given in clear and unqualified terms in the parable of the Good Samaritan (Lk 10:25). In keeping with this guidance, it now behoves the Church to take positive measures to bring Cardinal Pell to a place of refuge and protection and to pledge its own credit to his welfare. Any less a response is mere simulation.

 

Our Lady, Seat of Wisdom - pray for us. 

Our Lady, Comforter of the Afflicted - pray for us

 

 

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