Justice for Pell

I expected George Cardinal Pell to be convicted in 2018 on charges that he had committed child sexual abuse, and I expected his appeal to fail before the Victorian Court of Appeal in 2019. I was stunned on Monday by the news that his conviction had been overturned by a unanimous decision of the High Court of Australia. This is not because I hold Pell guilty. It is because I find criminal courts to be so very bad at reaching just conclusions in high-profile sex abuse cases. We are admonished by right-thinking persons to affirm these lawfully rendered verdicts. But “Believe all juries” and “Appeals courts never err” make as much sense as “Believe all women” and “Children never lie.” Our courts are human institutions and susceptible to human error, especially when a moral panic is afoot.

The High Court’s decision in Pell v. The Queen vindicates not so much Pell, whose guilt was always a dubious proposition, as Australian justice, which was on its way to disgracing itself. And it should embarrass those who proposed that only sectarians and abuse enthusiasts could doubt the case against Pell. For it seems unlikely that all seven High Court justices, plus Judge Mark Weinberg, whose Appeals Court dissent formed the basis of the High Court’s decision, were acting on orders from Rome and NAMBLA.

Pell’s critics will remind us that the High Court did not find Pell “innocent,” but merely ruled that the jury should have “entertained a doubt as to his guilt.” (Australia’s outraged commentariat has taken to describing the evidentiary standard as a “technicality.”) The ruling is in fact a comprehensive indictment of the operation of Australian justice with respect to Pell. For the High Court holds that the jury would have been unable to render a guilty verdict had it “acted rationally on the whole of the evidence”—had it, in other words, done its duty. The jury, alas, had sided with the complainant on the grounds that he appeared sincere when delivering his testimony. The High Court thus rejects both the outcome of Pell’s trial and the evidentiary standard that yielded it; it recalls the courts to both legal principle and the facts of the case. The High Court finds, as Frank Brennan, S.J. has said, that the rule of law was not extended to Pell.

For those who do not know or need a refresher, the facts of the case are as follows. The complainant alleges two incidents of assault in the Melbourne Cathedral in 1996 and 1997, while he was a choirboy. He says these incidents took place immediately after Sunday Mass, once in the sacristy, once in a corridor, both times while Pell was vested for Mass. The High Court finds three insuperable problems.

During the times when Pell is supposed to have committed these assaults, the sacristy and corridor would have been bustling with witnesses, clerical and lay. None ever beheld an assault. And multiple unchallenged witnesses testify that, during the times when Pell is supposed to have committed the assaults, he was on the steps of the cathedral, shaking hands with departing Massgoers. And in accordance with ancient custom, Pell was always accompanied by a master of ceremonies while vested for Mass. The master of ceremonies testifies that no assault ever occurred in his presence. The High Court rightly finds that we may not bracket these “solid obstacles to conviction” just because the complainant seems “credible.”

Pell’s jury is not the only body that failed in its duty. In its decision in Pell v. The Queen, the High Court explains that, despite what the Court of Appeal majority may imagine, “beyond a reasonable doubt” remains the evidentiary standard in criminal proceedings. The Court of Appeal had decided that since Pell’s lawyers had called the complainant’s story “impossible,” the burden of proof had shifted to the defense. The prosecution’s case was then judged to have met the novel evidentiary standard of bare possibility.

How did this miscarriage come about? In the national pastime of Pell-hatred—inflamed by the civil authorities and newsmedia, especially the publicly funded Australian Broadcasting Corporation—we may observe the scramble of a sparsely populated former colony to prove it belongs among the nations of modernity by repudiating an imagined gothic past. For the Get-Pell campaign has been anti-R.C. from the start. In her shoddy but influential book, ABC journalist Louise Milligan wears her anti-Catholicism on her sleeve. Between vignettes from her long-gone girlhood (“I didn’t know anyone with whom I went through Catholic school who still went to mass”), she sneers at the perpetual virginity of Mary, speculates that all priests are “psychosocially damaged,” and complains that the Church is “so incredibly prescriptive about how adults should live their lives.” Melbourne University Press vows to keep this book in print “as long as we’re able to do so.” 

Meanwhile, in America, it’s been possible to observe a heartening shift in opinion on Pell. At the time of his charging in the summer of 2017, defending Pell was extremely provocative. The unhealthy instinct among some Catholics to deny any accusation of sex abuse against a cleric seemed to have given way to a no less unhealthy instinct to lend all accusations credence. But the only way to judge cases is to weigh the facts. And gradually the facts emerged. Once the Australian gag order had been lifted, it became clear on what a slender basis Pell had been committed to prison.

In another unexpected development, Pope Francis (in whom Milligan once reposed great hope for the liberalization of the Church, the final defeat of “the Pell faction”) outraged many in Australia by sending a tweet that seemed to compare Pell to another unjustly accused man, Jesus Christ. Also this week, Alyssa Milano, popularizer of the hashtag #MeToo, was compelled to explain that “Believe all women” does not extend to Joe Biden’s accuser because, on second thought, men deserve due process. What will next week bring?

“Hug your children,” urges Milligan, in a tweet that has received thousands of likes. I did so, though not in obedience to her, before toasting Australian justice and sitting down to read the High Court’s Reasons for Judgment in Pell v. The Queen. I am not clear in what sense my children’s happiness is likely to be secured by their ability to lodge accusations that are unfalsifiable even by plain facts, logic, and twenty-odd honest witnesses. I am more comforted for the future of everyone’s children by the High Court’s demonstration that wrongs may be righted, however tardily, even in the Land of Upside-Down.

Julia Yost is senior editor of First Things.