In the Gospel of John, Jesus tells us that the truth shall set us free. Determining the truth in faith communities around sexual sin, however, has been a challenge for many centuries.

As described in the Book of Numbers, priests performed a dubious ritual of jealousy on women who were suspected of adultery in situations where there were no witnesses. Other faith communities attempt to apply the so-called “two witness rule” from the Book of Deuteronomy which requires the testimony of two witnesses to establish the existence of serious sin. The two witnesses, however, can be lying as recounted in the Book of Daniel, Chapter 13 where two elders falsely accused a woman of adultery after she had refused their own sexual advances towards her.

Do we have a more compassionate, reliable method available to determine guilt, protect the falsely accused and compensate victims of sexual abuse in the present day, in our criminal, civil and ecclesial courts?

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In the recent past, civil lawsuits alleging sexual misconduct have been filed in Canada against Cardinal Marc Ouellet, Cardinal Gérald Lacroix, and now against Fr. Thomas Rosica, CSB, known world-wide for his work on World Youth Day 2002 and his many achievements in Catholic media and elsewhere. Rosica’s claim that his case should not be handled in civil court, but follow a canonical process raises questions about fairness both to the accuser and the accused in addressing such complaints whether in ecclesial or civil courts.

Although following an ecclesial process might have prevented calling into question the reputation of Rosica in public before any finding of guilt, Vatican-led inquiries into abuse of adults have met with severe criticism in the past, even under the most recent version of Pope Francis’s motu proprio, Vos Estis lux mundi. Initially, the Congregation for the Doctrine of the Faith refused to open an inquiry into the allegations against former Jesuit Fr. Marko Rupnik, but in the face of expressions of public outrage, Pope Francis waived the impediment to allowing a canonical trial to proceed. 

From the complainant’s perspective, though, following a strictly canonical procedure would deprive him of his rights as a citizen of Canada to make use of the secular court system to seek compensation for his alleged suffering. It should be noted that no less a figure than Cardinal Ouellet made use of that very right in bringing a defamation lawsuit in civil court against the woman accusing Ouellet of sexual abuse.

To investigate the complaint against Cardinal Gérald Lacroix, Pope Francis invited a third party outside of the Vatican, retired Quebec Superior Court judge André Denis, to conduct the probe.

This Vatican-initiated investigation into the allegation of sexual abuse against Cardinal Lacroix, Archbishop of Quebec City, in which the complainant refused to participate, found no evidence to justify a canonical trial. He has, therefore, been cleared to resume his duties.

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Without a complete investigation having both the accused and complainant taking part, Cardinal Lacroix, in the eyes of some, continues to live under a cloud of suspicion as does the complainant in the eyes of others.

In civil court, where the complainant would need to participate and provide evidence, would there be enough hard evidence presented in that setting to determine reliable truth? In such proceedings, complainants (plaintiffs) must prove their case on a balance of probabilities. This means that if a judge or jury thinks that the plaintiff’s claim is just 51-per-cent probable, the case will be decided in favour of the plaintiff.

In criminal court, the standard of proof is much higher. A finding of guilt would require proof beyond a reasonable doubt (about 99-per-cent probability). The reality is that it is difficult to find enough evidence to bring charges in sexual assault cases, and much more difficult to obtain convictions. Being found “not guilty” does not necessarily mean that the accused was innocent — it just means that there wasn’t enough evidence to prove the case beyond a reasonable doubt.

Outside of ecclesial, criminal and civil courts, are there alternative ways to come to binding agreements in cases of alleged sexual abuse?

Yes, there are, according to Marcel Mongeon, Chartered Mediator and Chartered Arbitrator of Ontario Dispute Resolution Services of Hamilton. Mediation and arbitration processes outside of civil lawsuits are also available to parties in dispute. “Mediation is where a third-party neutral assists the parties in resolving a dispute through negotiation,” he explained, and arbitration “is where the third-party neutral makes a decision as to how to resolve the dispute. In the case of mediation, parties are able to negotiate any terms that they wish even if the mediator does not agree; in the case of arbitration, the parties are bound by the decision of the arbitrator that they have chosen.” In cases of general public interest such as abuse cases, though, Mongeon states that there is a general argument that such cases should occur in open court and not by private mediation or arbitration.

Elizabeth Grace, a partner at the law firm Lerners, also cautions that deals arrived at privately “can allow a wrongdoer and the organization with which the wrongdoer is associated, to carry on as they did before, resulting in more harm.” If both parties agree, though, private agreements can also be achieved through direct communications between the lawyers for each party. Avoiding court, she explained, provides many advantages for all concerned, as it is a more expeditious and less costly form of resolution than proceeding to court. Furthermore, for would-be plaintiffs, the process is less intrusive, as there usually isn’t broad disclosure of private health-related records, and there is usually no examination under oath. Grace said that for would-be defendants, “there is also the possibility of being shielded from future publicity and dissemination of harmful information by negotiating a full and final release that provides for confidentiality and non-disclosure.”

Although non-disclosure agreements (NDAs) exist, according to Nancy N. Mayer, who is a founding member of ACTS-Canada (Advocates for Clergy Trauma Survivors), there’s a movement to have victims of clergy sexual abuse no longer sign them. In the past, such agreements have effectively silenced victims, forbidding them from speaking to others about their abuse. Keeping silent about the amount of the agreement may be acceptable, but, says Mayer, “You can’t silence my story.”

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Mayer also expresses concern about using mediation as a form of dispute resolution. “It’s still a David and Goliath situation,” she claims, where there is an unequal power base when an individual victim goes up against a powerful institution such as the Catholic Church. Going to court is advantageous, she asserts, because there “you have somebody, a judge, who is listening to both sides, and he’s the one who equalizes the power differential between the two.”

No matter which method of dispute resolution is chosen, though, Mayer calls for improvements in the proceedings so that they are handled in a more trauma-informed way. Ultimately, though, no dollar amount or sentence brings true healing which Mayer says will only occur when victims are truly welcomed back into their faith communities.