By Tania Penovic

Sexual abuse is an egregious violation of the rights of the child, causing harms which are profound and often lifelong. Evidence presented before the Royal Commission into Institutional Responses to Child Sexual Abuse has revealed that in a range of institutional contexts, children have not been protected from abuse.

The Convention on the Rights of the Child (CRC) and other human rights instruments have not featured in the Royal Commission’s issues papers, submissions and public hearings. But the Royal Commission’s work, and the response of the federal and state governments to its recommendations, promise to play a significant role in facilitating compliance with the CRC.

A children’s rights vacuum

The CRC requires state parties to take all appropriate measures to protect children from abuse.  Protective measures extend to programmes for identification, reporting, referral, investigation, treatment and follow-up of abuse cases. Where appropriate, they may entail civil or criminal proceedings. While institutions have eschewed contact with authorities over abuse allegations, the Royal Commission has referred more than 900 matters to police.

State parties to the CRC are required to take appropriate measures to promote physical and psychological recovery from abuse. The Royal Commission has recognised that redress is required to facilitate recovery and that difficulties in obtaining redress through schemes such as the Catholic Church’s Towards Healing or civil litigation should be placed in the broader context of a social failure to protect children.

In its Redress and Civil Litigation Report, the Royal Commission recommended a national redress scheme that includes a direct personal response, counselling and psychological care and monetary payments. After some early resistance, the federal government is reported to be consulting state and territory governments on a national scheme.  If a redress scheme is implemented in line with the Royal Commission’s recommendations and the states adopt a consistent approach to recommended civil justice reforms, Australia will make significant advances in compliance with the CRC.

‘…the word of a child’

A key principle underpinning the CRC is respect for the views of the child and the opportunity to be heard. Sexual abuse has a silencing effect on children who are often too traumatised, fearful and ashamed to speak. The silencing effect is compounded by the trust and authority accorded to some institutions and the reality that many children lack the capacity to recognise their abuse for what it is. Information obtained by the Royal Commission in private sessions has revealed that on average, female victims were 9 years old when they were first abused and male victims were 10. On average, it took 22 years for survivors to disclose their abuse.

When children have taken the courageous and difficult step of speaking about the abuse they have suffered, many have been dismissed, disbelieved or subjected to retaliatory abuse. Some have been disbelieved by their own parents.

One emblematic example of the response to allegations made by children is that of the former Bishop of the Catholic Diocese of Ballarat, Father Ronald Mulkearns (who died this week) with respect to allegations against a priest whom he must have known at the time to be a serial child rapist: ‘[h]ow am I to take the word of a child over one of my priests?’

In bearing witness to survivors’ accounts of abuse and acknowledging their experiences, the Royal Commission has been honouring the key CRC principle of hearing children’s voices. Of course, many survivors are no longer children. Having entered into force in 1990, the CRC did not exist at the time that many were abused. Many reached adulthood before the Convention took effect. These survivors were abused when attitudes towards children’s voices were dramatically different to those which are reflected in the CRC and which prevail today.

So many survivors have either been unable to speak of their abuse or silenced by those who would rather not hear them. The opportunity to tell their stories has been profoundly important.  Their testimony has played an important role in informing the Royal Commission’s recommendations on redress and access to justice. As observed by Royal Commission chair Justice Peter McClellan, [u]nless the truth is revealed and known publicly the prospect of effective healing for survivors and institutions is diminished.

 Committee on the Rights of the Child

In Australia’s fourth periodic report to the Committee on the Rights of the Child (which supervises the CRC’s implementation), child sexual abuse was not considered in detail and did not emerge as one of the Committee’s major areas of concern.

The Committee was, however, extremely concerned by the sexual abuse of children in its consideration of the Holy See’s second periodic report. Headed by the pope, the Holy See is a sovereign state under international law, has a permanent mission to the United Nations and is a party to the CRC.

The Committee expressed its grave concern that the Holy See had not acknowledged the extent of child sex abuse by clergy or taken the necessary measures to protect children. The Holy See’s policies and practices were considered to have enabled the continuation of child sexual abuse and impunity for perpetrators. The Committee’s recommendations included referring all known and suspected offenders to law enforcement authorities and repealing all provisions of Canon Law (the Holy See’s primary source of law) which impose a code of silence on victims and clergy. The Holy See has declined to implement the Committee’s recommendations.

Something to commend

When the Committee receives Australia’s fifth periodic report, due in 2018, it is likely to take a keen interest in the measures taken to address child sexual abuse. Australia may well be in a position to report on significant advances in creating safe environments for children. If the Royal Commission’s recommended reforms are implemented, there will be much for the Committee to commend. Such reforms promise to honour the rights and dignity of the children of the past, present and future.

It should be hoped by 2018, the federal government will have conducted a comprehensive review of institutional settings in which children remain unprotected. Any such review would inevitably conclude that where those in authority do not hear the voices of children and punish those who seek to protect them, human rights may be violated with impunity. The Regional Processing Centre established by Australia in Nauru springs to mind.

A commitment to the rights of the child requires children to be removed from the institutional environments of immigration detention facilities, where they are vulnerable to sexual and other forms of abuse. Such a commitment requires the removal of children from all such harmful environments rather than another iteration of institutional reclassification in which the only change is to the vocabulary used to describe the institution. This would be another development the Committee on the Rights of the Child would be very interested to learn about.