To believe or not to believe: child witnesses and the sex abuse royal commission

Testifying from Rome on Monday, Cardinal George Pell told the royal commission into child sex abuse that the Catholic Church had a “predisposition not to believe” children who made complaints about abuse.

You would be forgiven for thinking such attitudes towards children were common “back then”. Maybe they were. You might think that children were only ever seen, not heard “in those days”. Not so.

Throughout the 20th century offences against children were being prosecuted in courts across Australia – often. Guilty verdicts were handed down – often. Perpetrators went to prison – often.

Countless cases clearly show that children were believed in police stations and courtrooms. Juries believed them. Judges believed them. Even defendants are known to have admitted that children were telling the truth. But to believe or not to believe a child’s allegation of abuse is an issue that has challenged legal systems from time immemorial.

The historical context

From the mid-18th century until the late 20th century, before a child could give evidence in court they first had to demonstrate that they understood the nature of an oath. This involved demonstrating their belief in God and understanding that they would go to hell if they lied.

Many children failed this test. The absurdity of asking young children such a question is demonstrated by the response of a four-year-old boy giving evidence in Melbourne in 1929. Asked if he knew “who watches over us and knows everything we do?”, the boy rather smartly replied:

The police.

His evidence was rejected.

But judges and courts could also be quite creative in how they approached this issue – far more so than they can be now. When it mattered – to them – judges often found creative ways for children to satisfy the oath question. Presiding over the trial of a known sex offender and not satisfied the eight-year-old witness understood the nature of an oath, a judge in Maryborough in 1910 adjourned the matter so that the boy could be:

… instructed as to the nature of the difference between truth and falsehood.

In response to a child witness saying he would go to hell if he lied, Judge Foster in Victoria once famously remarked:

Don’t you believe it, sonny. There is no hell. It is a shame that children should be taught such a thing.

Not surprisingly, the Catholic Freeman’s Journal took great exception to Foster’s remarks. It noted:

Every Catholic is … taught that perjury by a false oath is a mortal sin. And every Catholic is also taught that those who die in a state of mortal sin go to hell.

Even where children could not satisfactorily demonstrate an understanding of the oath, they were often permitted to give unsworn evidence. This, in turn, presented another hurdle for the child. The law differed from state to state, but generally a child’s unsworn testimony needed to be corroborated by the sworn testimony of an independent witness.

This was problematic for offences involving the abuse of children. Either the child victim was alone or the other children present could not give sworn testimony. Such cases were frequently dismissed for want of corroborative evidence.

Attempts at reform

The legal system often presented a significant barrier to the satisfactory resolution of offences against children. It still does. The chair of the royal commission, Peter McClellan, has previously spoken of the problems posed by the justice system’s historical attitudes towards children.

But it was never the case that such offences could not be prosecuted. In the right circumstances they could be, and they were.

The Australian Law Reform Commission has previously noted that the requirement to swear an oath discriminated against children who did not have religious beliefs or even knowledge of religion.

Presumably, then, the child residents of the religious institutions investigated during the royal commission would have been some of the most competent of witnesses. They would have had the message about God and hell literally beaten into them.

They would have been in a position to give sworn evidence. And if they couldn’t, it would have been likely that other children who had witnessed the abuse could give sworn evidence corroborating the unsworn testimony.

Truth-telling is a base premise of Catholic religious instruction. Therefore, child witnesses who emerged from these institutions – through fear alone of the fiery depths of hell – had another dimension of witness reliability. In the right circumstances, with adult police and adult judges and adult juries ready to believe them, the impediments to these children being heard were significantly reduced.

That children from religious institutions were not listened to or protected, in circumstances where the law may well have done so, speaks volumes about the Catholic Church. While Pell claims these “muck-ups” were due to the personal failings of a few members of the church, the history of children in Australian courts suggests otherwise.

All the structures were in place, bolstered by Catholic dogma, to hear the testimonies of these children within the courts. That they were not heard points to an organisational structure that consistently and repugnantly failed the most vulnerable of its members.