Royal Commission slams religious organisation for failure to report and destroying records

The Royal Commission into Institutional Responses to Child Sex Abuse (the Commission) has heard that of the 1000 child sex abuse allegations over the past 60 years received by the Jehovah’s Witness Church in Australia (the Church), not one of them was reported to police.

SBS reported on the Commission’s latest public hearing which commenced on 27 July. Several victims of abuse from the Church told their stories, while Western Australian Church elder Mr Max Horley told how it was not the Church’s practice to report serious allegations of sexual abuse to police and that it was its practice to destroy documentation of the incidents.

In addition to the Church’s actions being morally and ethically questionable, its prior actions raise questions of liability under today’s child protection laws and could also constitute criminal offences.

The facts

The Commission heard the following key details from Mr Horley and a victim known as ‘BCB’:

  •  it was not the Church’s practice to report serious allegations of sexual abuse to police;
  • BCB, who was abused by another church elder, Mr Bill Neill, was never advised to go to police, and she was never offered any support; and
  • victims were made to confront their abusers and left feeling as if they had sinned.

The Sydney Morning Herald has also reported that the Church has reinstated 230 members who allegedly abused children, including Mr Neill.

Counsel assisting the commission, Angus Stewart, said the Church ‘relied on Bible passages to set its policies on child sexual abuse, and avoided resorting to secular authorities and courts’.

Record keeping obligations

When Commissioner Chair Peter McClellan asked Mr Horley about the record keeping policy of the Church, the elder replied that ‘there are brief notes kept in the file, but all other notes are destroyed…because we don’t want them to fall into the wrong hands and other people to find them and they go through them.’

Although it’s unclear who the Church saw as being the ‘wrong people’ in that situation, it’s clear that the loss of those records makes it difficult for police to investigate child abuse claims against the Church and for its victims to rely on evidence for any future legal proceedings to seek redress.

Such document destruction can also constitute criminal activity under today’s legislation, such as the Crimes Act 1914 (Cth) and corresponding State and Territory legislation, which make it an offence to intentionally destroy documents that a person knows are, or may be, required as evidence in a judicial proceeding in order to prevent them being used in a court proceeding.

In a previous blog on record keeping, we outlined schools’ legal obligations when it comes to record keeping requirements for school records which constitute personal information under the Privacy Act 1988 (Cth) (Privacy Act).  While the Privacy Act does prescribe many processes and requirements for the handling and disclosure of personal information it does not prescribe retention periods.

This is in contrast to other clear record retention periods which exist for some business records in other legislation, such as the financial record keeping requirements in the Corporations Act 2001 (Cth) and employment record requirements in the Fair Work Act 2009 (Cth).  Some guidance is provided by State and Territory record-keeping guidelines which apply to government schools, which non-government schools can elect to adopt for their own internal policies.

But overall, non-government schools are not subject to any form of uniform legislation which doesn’t answer the question ‘if it’s personal information, how long should we keep it for?‘, leaving them in a situation of some uncertainty. In many cases, unless storage restrictions make it difficult, the prudent approach is to keep such records for as long as possible.

Mandatory reporting

The elders that appeared in front of the Commission insisted that while they failed to report the allegations of child abuse to the police, they encouraged the victims themselves to do so and give assistance where necessary.

The Church’s approach to letting the victims report the actions of their abuser/s is not the approach adopted by the different mandatory reporting laws which exist under child protection regimes in Australia today.

In some jurisdictions, such as Victoria, does the child protection mandatory reporting obligations directly apply to members of the Church.

However in all jurisdictions, adults are the mandatory reporters of suspected or actual abuse, not the child who is the victim.

While it is unclear whether any members of the Church will face criminal liability under child protection offences in relation to the admissions made at the Commission, they may be exposed to some form of liability for concealment of crimes and document destruction.

Document destruction: an international issue

The practice of destroying records which could constitute crucial evidence in the investigation and prosecution of child abuse cases is not isolated to Australian institutions.

The Independent Inquiry into Child Sexual Abuse being held in the United Kingdom (the Inquiry) will investigate whether public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse in England and Wales. The Chair of the Independent Inquiry into Child Sexual Abuse, the Hon. Lowell Goddard, opened the Inquiry with an address to churches, government and schools alike not to shred the evidence.

In various letters to department and religious leaders, Ms Goddard requested cooperation and transparency when it comes to releasing relevant documents and warned about the ramifications for those who are seen to prematurely destroy files or records that are to be required later as evidence.

Ms Goddard’s instructions emphasise that around the world, victims of institutional child abuse are united by common obstacles when seeking redress for the harm that they have suffered.

Bottom line for schools

Although this case concerns a religious organisation with different legislative reporting obligations and duty of care regulations than schools, the criminal law is the same for all organisations.

The media coverage of the Church’s actions demonstrate that document destruction and a flawed or non-existent record keeping procedure can substantially harm those under its care or influence and affect its reputation and public image.

It is also a reminder that ignorance of the law is no excuse for breaking the law, especially under today’s child protection regimes.

 

About the author

Cara Novakovic is the Assistant Editor – School Governance. She can be contacted here.

 

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