Complainant credibility should be the beginning of a chain of legal reasoning, not the end of the matter. For if "credibility" is the only criterion to be considered, then no real defense is possible against a charge of sexual abuse (or any other charge, for that matter).
The unanimous decision by Australia's High Court to quash Cardinal George Pell's convictions on charges of "historic sexual abuse" and acquit him of those crimes was entirely welcome. Truth and justice were served. An innocent man was freed from imprisonment. The criminal justice system in the State of Victoria was informed by Australia's supreme judicial authority that it had gotten things badly wrong. The anti-Pell haters in the Australian media were reminded that their power has limits.
Yet there remains a lot to be reckoned with in the aftermath of this case, which bore all the tawdry hallmarks of a witch hunt.
Did the government-funded Australian Broadcasting Corporation [ABC] collude with a corrupt Victoria police department in a sleazy attempt to dig up alleged crimes where none had been previously reported? Why did so weak a case ever come to trial, given compelling evidence that what was said to have happened simply could not have happened in the timeframe and circumstances alleged by the complainant? Why was the jury never informed that the complainant had a history of psychological problems? What effect did the lynch mob atmosphere in Victoria have on the hung jury in the cardinal's first trial, and on the incomprehensible guilty verdict rendered by the jury in the retrial? Why was the cardinal forbidden to say Mass for over 400 days, even when in solitary confinement?
These are questions proper to Australia and should be examined by the public authorities there; a parliamentary inquiry into the behavior of ABC and the Victoria police seems the least that ought to be done. The Pell affair also has implications for other countries and for the world Church, as public officials and Catholic leaders continue to grapple with the societal-wide plague of the sexual abuse of the young.
Cardinal Pell had two jury trials because in the State of Victoria, a defendant in a criminal case cannot request a bench trial (i.e., a trial by a judge alone). Surely this policy needs to be re-examined in all jurisdictions in which it is in force, given the extreme difficulty of empaneling an unbiased jury in fevered public circumstances such as those surrounding the Pell affair (which resembled Salem in 1692 or France during the 1894 Dreyfus case).
In the State of Victoria, a criminal charge of sexual abuse can be brought to trial solely on the word of a complainant. No physical evidence of abuse having occurred is required; neither is any form of corroboration. This requires re-examination, and not just in Australia.
The Crown prosecutor's case against Cardinal Pell rested on the credibility of the complainant and nothing else. The two judges whose appellate decision last summer upheld the cardinal's conviction cited a similar credibility criterion as decisive. There is something seriously wrong here, though. Complainant credibility should be the beginning of a chain of legal reasoning, not the end of the matter. For if "credibility" is the only criterion to be considered, then no real defense is possible against a charge of sexual abuse (or any other charge, for that matter).
Raising one criterion of legal judgment, complainant credibility, to the sole criterion of judgment renders a defendant guilty prima facie -- and that dismantles two of the pillars of a just criminal law: presumption of innocence, and the state's obligation to prove guilt beyond a reasonable doubt. The High Court decision strongly objected to this narrow focus of judgment, as did Justice Mark Weinberg in his brilliant dissent from last August's mistaken appellate decision. Other jurists and legal practitioners throughout the world should pay close attention. Otherwise, sentiment will replace reason in adjudicating criminal cases, and that is effectively the end of the rule of law.
Media irresponsibility is not just a problem in Australia. ABC, however, has set a new standard for viciousness in its ongoing campaign of defamation against the Catholic Church and Cardinal Pell -- a campaign that reached new depths of ugliness even as the High Court was considering its decision. And ABC is a public-funded, state-owned broadcast service. Some hard thinking about the public responsibility of public broadcasters is thus in order throughout the world. No one has a free speech or freedom-of-the-press right to engage in willful defamation of character, and certainly not at taxpayer expense.
Cardinal Pell has been vindicated, but other matters of consequence remain unsettled. It can only be hoped that the cardinal's acquittal helps both Church and state think more clearly, and act more justly, when faced with the grave crime of sexual abuse.
- George Weigel is Distinguished Senior Fellow of the Ethics and Public Policy Center in Washington, D.C.