Church Liability for clergy child abuse

As in other parts of the Western world, the church has been in the spotlight over the last few years in Australia as the scope and impact of sexual abuse committed by clergy, and in some cases covered up by church leaders, has become more apparent. Here the Royal Commission into Institutional Responses to Child Sexual Abuse is doing what seems to be an excellent job in encouraging victims to come forward and report harm they have suffered in this way. It is painful for Christians and others who have supported community organisations like the YMCA to hear the stories of what has happened to vulnerable children who should have been cared for, but instead were in some cases exploited for sexual gratification. But it is vital for the truth to come out about these events, so that victims can feel that they are finally being heard, and where possible receive compensation for the harm they have suffered.

As well as teaching “Law and Religion” as an elective, I teach “Torts” to first year law students. Torts is about civil liability, “suing people for stuff” as I sometimes summarise it. The question of the liability of churches for the sexual abuse suffered by children at the hands of members of the clergy provides one area where two of my main academic interests co-incide. Recently I was invited to deliver a paper on the question of holding churches responsible for damages in this area, to a local law firm, Kelso’s, who are acting on behalf of a number of clients who have been harmed in this way. (The firm runs an excellent “unofficial” website connected with the Royal Commission.) The paper can be found here for those who are interested in exploring some of the legal issues.

Prison for “husband” in under-age marriage

It has just been reported that a 27-year old man has been jailed here in Australia for 10 years after pleading guilty to “persistent sexual abuse of a child”. The man, from Lebanon, had seen a 12-year-old at his local Newcastle mosque and began “pursuing” her to marry her. The leaders of the mosque he attended quite rightly told him that they would not perform the ceremony, as it was illegal under Australian law, but he managed to find another self-described “cleric”, Sheikh Muhammad Tasawar, an Iranian based at a different mosque, who agreed to perform the “ceremony” at a local house. Disgracefully, the girl’s father agreed. The man took his “bride” to Sydney and had sex with her on a number of occasions.

I commented about this case in a press report in February 2014, when at the time it had been reported that the “groom” had been arrested but there was no mention of the liability of the “cleric”. I noted at the time:

Section 100 of the Marriage Act 1961 makes it an offence for a person to “purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.” Anyone who carried out a wedding ceremony involving a 12 year old girl in Australia would have “reason to believe” that the marriage would be void, as they would be aware of the age of the child. They should be aware because s 42 of the Act requires a “notice of intended marriage” to be provided, which must be accompanied by a birth certificate for each of the parties. Section 99 of the Act also makes it an offence for an “authorised celebrant” to solemnise a marriage without requiring such a notice.

As it turned out, even on the day my opinion piece was published (so that I can’t take credit for it!), the police had already arrested the cleric. The latest article notes that

In March 2014,  Tasawar, 35, pleaded guilty to the offence of solemnisation of a marriage by an unauthorised person. He was fined $500 and his religious leader visa was cancelled.

The sentence of the husband was not for his breach of the Marriage Act 1961, although as I noted he had indeed breached that Act. But it seems a sensible decision to charge him, as was done, with the more serious offence of sexual relations with a minor. Sadly the report notes that the 12 year old girl was later hospitalised with an ectopic pregnancy, and miscarried. It is good to see that the court handed down a serious sentence for this terrible behaviour.

I concluded my previous note as follows:

Is this an interference with the right to free exercise of religion? Yes, it is to some extent. The right to religious freedom is a fundamental and important right, recognised in international law under Article 18 of the International Covenant on Civil and Political Rights, to which Australia is a party. Religious freedom under Commonwealth law is also recognised by the important s 116 of our Constitution. But all those provisions are read subject to the importance of balancing out other rights. And in Western societies for many years, the right of a child not to be pushed into an early marriage and sexual relations has been recognised as a good and proportionate reason for qualifying religious freedom.

The authorities in Australia should be concerned if any religious group is conducting “marriage ceremonies” leading to relationships that are not regarded as valid marriages under Australian law. Doing so only leads to confusion and heartbreak when the consequences of the ceremony are not as people may have thought. Leaders of religious groups and authorised celebrants need to be very clear when any ceremony they conduct “looks like” a marriage service but cannot lead to a recognised marriage under the law of Australia. As well as the under-age “marriage” involved here, another example would be a ceremony conducted purporting to allow someone to take more than one wife in polygamy. The law of Australia does not allow a polygamous marriage to be entered into in this country, or by people who usually live here who might resort to other jurisdictions to evade the Australian law.

It is good to see that leaders of the major Islamic organisations have unreservedly condemned the alleged “marriage”. But individual celebrants, or those acting as celebrants, who are found to be conducting such ceremonies should be prosecuted to send a clear message about the law, and in the interests of the vulnerable children or women who may be harmed by entering what they think are marriages, but are not.

Can there be rational reasons for not supporting same sex marriage?

For many people in Australia the “battle” over recognition of same sex marriage seems, in popular opinion at least, completely over. Tim Dick in the Sydney Morning Herald on 1 March tells us that the “public argument is won” and we are now just up to the stage of deciding whether or not to allow “latecomers” to join the party. We are often told that those who do not support extending the legal status of “marriage” to unions involving same sex couples are on the “wrong side of history”. Their stance is often characterised as “homophobia”, a word which has in common parlance (despite its etymology) nothing to do with “fear” and everything to do with an irrational hatred of, and desire to harm, homosexual persons.

In this post I would like to suggest that these comments are wrong. I want to put forward reasons why a sensible, rational human being might hold the view that changing the law to “legalise” same sex marriage is not a good idea. I would challenge those who think that it is impossible that anything could be said on the other side of the debate, to at least recognise that there can be reasons offered to oppose the introduction of same sex marriage which do not stem simply from irrational hatred or invincible stupidity. I would also like to offer reasons that do not require a commitment to a specific “religious” world view, such as Christianity, Judaism or Islam. The reasons I want to offer here could be shared by any person who thinks carefully about human society. That such arguments might be possible is illustrated, for example, by the fact that some prominent gay commentators continue to express their opposition to changing the law to allow same sex marriage.

The best way to address this question, I think, is is to consider some of the arguments that are made in favour of this legal change, and to provide responses.

1. Isn’t recognition of same sex marriage simply a matter of “Marriage Equality”?

The first and in some ways one of the strongest arguments is framed under the deceptively simple heading of “equality”. If heterosexual couples in Australia are entitled to be married, then isn’t it simply a matter of basic equality and non-discrimination that homosexual couples should also be allowed to marry?

Perhaps one of the first things to note here is that it is odd, if this change were simply a matter of non-discrimination, that our Federal government law on discrimination doesn’t already do the job. The Sex Discrimination Act 1984 (Cth), for example, already makes it unlawful to discriminate against persons on the basis of their sexual orientation. But s 40(2A) specifically provides that this law does not impact the law on marriage. The Federal Parliament doesn’t seem to think the debate is concluded simply by reference to “discrimination” as a category.

Indeed, a Federal Court decision on the question, decided under the law as it stood before there was a prohibited ground of discrimination based on “sexual orientation”, held that State Registrar-General’s offices did not “discriminate” on sex or marital status grounds by refusing to register same sex marriages- see Margan v Australian Human Rights Commission [2013] FCA 612 (18 June 2013), esp at [48]:

where State agencies refuse to register same sex marriages because of requirements mandated by the definition of “marriage” is s 5 of the Marriage Act, as a matter of law this cannot involve an “act” or “practice” within the definition of “unlawful discrimination” in s 3 of the AHRC Act.

To put it simply, it is not “discriminatory” to not allow same sex marriage, because for there to be unlawful discrimination in denying a status or benefit to somebody, the person who seeks to gain such needs to fit the standard criteria for that status or benefit. I cannot complain that company A does not pay me a salary, whereas it pays a salary to my friend, when I do not work as an employee for A, and my friend does! The essence of the status “employee of A” is having a job there and doing work for the company. If I don’t do that, it is not “discrimination” to refuse to pay me.

Similarly, under our current law it is not discriminatory to refuse to marry a same sex couple to each other, because they do not currently satisfy the criteria set out in the law of Australia, which is, as Griffiths J notes in the quote above, that under s 5 of the Marriage Act 1961, they be a “man and a woman”. So the question is this: should the law of Australia be changed to allow same sex couples to marry each other? (For more exploration of the “discrimination” argument see my previous paper on the point.)

Of course the “equality” argument would be stronger if same sex couples who are unmarried miss out on privileges and benefits provided to heterosexual married couples. But a series of amendments to various laws over the last decade means that it is very hard find any such areas of law. Most benefits are extended to “de facto” couples, whether heterosexual or homosexual. The remaining arguments are, in essence, about the “label” and the social recognition conferred by the formal status of “marriage”.

What reasons are offered for making the change?

2. Shouldn’t we allow same sex marriage on the basis of “equal love”?

One of the most plausible justifications for changing the law to allow same sex marriage is the argument that all persons are entitled to have their love for their partner celebrated by a marriage ceremony. However, it seems clear that we can’t accept this argument unless we know what purpose the law of marriage serves. It can’t simply be about celebration- we don’t stage a marriage ceremony when someone graduates, for example. There must be some reason why the marriage ceremony is the celebration we choose for a particular couple. After all, discrimination is only wrongful if it is on irrelevant grounds; so to know what is irrelevant, we need to know what is relevant.

One of the difficulties in this area is that there are range of possible functions which are served by the legal institution of marriage. It seems that most people would agree that these at least include:

  1. A celebration of the love that two people feel for each other.
  2. “Authorisation”, in some sense, of a sexual relationship between the parties, under community standards.
  3. A commitment of those people to be faithful to each other, and only each other, in their sexual relationships, with the aim that this commitment will last for a lifetime.
  4. A joining together of the two separate families of the parties, so that they are now connected in ways that they weren’t before.
  5. Providing a stable committed partnership within which children of the parties can be nurtured, by their biological parents, until they are ready to stand on their own as adults.

These are the most important of the functions that the institution has served over most of human history, and in pretty well all human cultures. A public recognition of the commitment of the two partners who are authorised to have sex together provides the context for the future arrival of children, should that happen (as it often does following heterosexual sex!) Of course it may be that not every marriage meets all these initial goals. Some are terminated through divorce. Some, whether by choice of the parties or through unavoidable other circumstances, may not result in children. In some the parties may not be able to have sex together. The parties may have no other living relatives so the wider family connections may not be made. But the core functions of the institution are as above, and the fact that a particular marriage does not fulfil all of those functions does not make it any less of a marriage.

Those who have religious beliefs may see other purposes for marriage. Christians who take the Bible seriously, for example, are told that the joining together of husband and wife plays an important role in reflecting aspects of God’s character and his relationship to his people (see Ephesians 5:31-32.) But the reasons mentioned above are ones that have been shared by human societies since the dawn of humanity. The different functions provide support and encouragement for different persons. The first enables the love-struck couple to invite others to share their joy in each other. The second provides community sanction for their sexual activity together. The third, historically speaking, has provided protection for the wife against the well-known tendency of husbands to seek sexual satisfaction as broadly as possible. A social norm and legal system which penalises adultery makes it harder for husbands to abandon their wives, and in fact also makes it harder for a young woman to be seduced by an older man and then abandoned. The fourth function provides stability for inheritance of property and connections across families. The fifth, which may in the end be the most important of all, provides the security for children to be raised by their biological parents in a stable household.

Sadly, in recent decades in the West (even before the movement towards same sex marriage) the first function of marriage seems to have been given higher priority and, in some eyes, to have completely eclipsed the others. The expense and pomp of the wedding ceremony have become for some the most important part. The second has become less important as the community has come to accept the idea of “free love” and the principle that sex is now widely available to all. The day is now said to exclusively be “the couple’s day”, and so the role of other family members is downplayed or ignored. The importance of the commitment to life long monogamy is diminished to “lip service”, and there is now a social expectation that faithfulness is too demanding, and that minor problems may provide a ground for quick divorce. The role of children in a marriage can sometimes be seen as a secondary, purely optional, issue.

So it is not perhaps surprising that, if marriage has mainly become “celebration of love”, a fulfilment of the goals of the bride and groom, that we now see the calls to extend the institution to same sex relationships. Yet as many commentators have pointed out, if all that marriage does is provide a formal record that two parties, on a particular day, felt that they loved each other- what interest does the State have in this? Why is it formally recorded and accompanied by legal requirements? And since logic matters, why do we provide this celebration only for “sexual” relationships? Should we have “marriage” ceremonies for people who care for each other as friends? Why do we have rules against marriage between close family members? Why not, as some are now arguing, extend the “circle of love” to three or more persons? Interestingly it may be that the second rationale noted above provides a key reason for the move towards same sex marriage- for it provides community sanction for a type of sexual relationship that at most times in the past, and still in the majority of the world, is not regarded as appropriate.

The institution of marriage, though, is indeed a “package deal” which functions in all these five areas. The main interest the State has in marriage is that it provides a framework within which human experience tells us that children will be best cared for. A secondary goal is that marriage in its traditional form provides support for women, particularly those who choose to leave the external workforce to devote themselves to caring for their babies as they grow into mature human beings.

3. Is marriage really all about the children? Don’t children of same sex marriages do just fine?

That the goals of marriage included the protection and nurture of children in stable families has never been seriously doubted until very recently. In an important article, “Same-Sex Marriage and the ‘Reconceiving’ of Children”, (2014) 64/3 Case Western Reserve Law Review,  829-862 (at SSRN: ) Professor Helen Alvares from the George Mason University School of Law notes that the US Supreme Court, and other courts in that country, regularly referred to these issues in ruling on marriage questions. She reviews a number of decisions from the 19th century onwards, concluding with a more recent one:

[In] Parham v. J.R. 442 U.S. 584 (1979), a case about parents’ rights to direct their children’s health care, (see 587) the Court stated that “[o]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.” (at 602)

Similarly, in Australia, when the High Court of Australia was considering the validity of certain provisions of the then-newly-minted Marriage Act 1961 (Cth), Windeyer J commented in AG (Vic) v Commonwealth (1962) 107 CLR 529 (the Marriage Act case):

the Commonwealth power would extend to matters concerning the support and care of children, duties that are commonly considered to be inherent in the institution of matrimony. (at 580, emphasis added)

His Honour goes on (at 580- 581):

The procreation and upbringing of children is set down in the Prayer Book first among the causes for which matrimony was ordained. If an authority of a different kind be preferred, Voltaire’s Dictionnaire Philosophique (1764), in the article on canon law, said: Le mariage dans l’ordre civil est une union legitime de l’homme et de la femme, pour avoir des enfans, pour les clever, et pour leur assurer les droits des proprietes, l’autoritc de la loi. (Roughly“Marriage under the civil regime is the legal union of the man and the woman, for having children, for assuring their property rights with authority of Law”). And Puffendorf said that “the natural and regular end of marriage is the obtaining of children whom we may, with certainty, call our own”: Law of Nature & Nations vi, I, 15.

If the nurture of children is an essential part of the institution of marriage, then how can this element be present in a same sex marriage? The response of those agitating for change of the law is that children must just be provided! They can be adopted; technology can be used to allow a surrogate mother to bear a child of one of the parties; or, as more commonly happens, a gay or lesbian couple may be raising a child who was born to one of the parties in a previous heterosexual relationship.

Will children raised in a same sex marriage suffer any ill effects? There is evidence pointing in both directions here, which is highly contested. But as I read some recent studies, there is solid, peer-reviewed data showing that overall children do best when they are raised in a stable married family with a husband and wife who are the children’s biological parents. (And part of this study shows that earlier, contrary findings are often based on small, self-selecting samples.) Of course there are many exceptions to the general rule, heroic single parents and hard working same sex couples who provide fine care for their children. But when the research shows that other models are not ideal, one has to ask how we are justified, keeping the interests of children in account, in conducting what will amount to a decades-long “social experiment” when the preliminary data is not encouraging.

Indeed, it has to be said that in Australia we have already seen what happens when children are deliberately removed from their biological parents (as will have to happen for same sex couples to “have” children), in the interests of a public policy agenda. These days we call it the “Stolen Generations”. Already there is clear evidence that children brought into families through artificial insemination, embryo donation, and other techniques are, like a previous generation of adopted children where no records were kept, experiencing the pain of being cut off from their biological heritage. At least with those earlier social structures we thought that we were doing these things in the interests of the children, however misguided we were. But the current social experiment seems to be being conducted mainly in the interests of same sex couples, in some situations partly to fulfil a social expectation that a same sex marriage “ought to” have children so that it resembles a traditional heterosexual marriage.

4. But how will my same sex marriage have any impact on your traditional marriage? Can’t we all live and let live?

As noted previously, what is at stake is a radical redefinition of the whole institution of marriage. Most of the five characteristics traditionally thought to characterise marriage will be taken away. This, it should be noted, is not simply about the removal of children as a major goal of marriage (and incidentally the further downplaying of wider family involvement) and the change to a homosexual couple. It has to be conceded that very few homosexual relationships are long-lasting or intended to be “monogamous”. Research shows that there is an expectation in the homosexual community of a number of sexual partners. Once sexual fidelity and the intention to create a life-long partnership are removed, along with the possibility of children who are biologically related to both partners- the word “marriage” is reduced to little more than a shell. What remains is a celebration and authorisation of sexual relationship.

The analogy is not perfect but perhaps it will do. If I obtain a University degree from the University of Woop Woop, and some years later that University, in a desperate quest for cash, dumbs down all its courses so that its degrees may as well come from a Weetbix box- then the value of my degree is also diminished. My proud claim to be a Woop Woop alumni is now not heard so much. To come back to marriage, once the law is used to support an institution which we now all know has nothing essentially to do with encouraging the nurture of children, or faithfulness in sexual relationships to one partner, or a lifelong commitment: all marriages are seen to lack these characteristics.

One would be more prepared to accept that “live and let live” would work if it was in evidence in other jurisdictions around the world where same sex marriage had already been introduced. But in fact one of the serious challenges to religious freedom that is developing in the West (there are much more serious elsewhere, of course, but the West is where many of us are), is the fact that once a jurisdiction has authorised same sex marriage, it becomes increasingly difficult for believers to be a part of public life. A teacher at a school, a public servant, even those who are part of the “wedding industries” such as flower sellers and photographers and bakers- all may be required to put aside their serious moral objections to homosexual behaviour in the interests of avoiding “sexual orientation discrimination”, and to not be heard to suggest that same sex marriage is in any way different to traditional marriage. (Nor will they be allowed, in many cases, to respond that their objection is not to the persons, but to their behaviour.)


This post is far too long, and it has not scratched the surface of what can be said as rational reasons for opposing a change of the law to allow “same sex marriage”. Reasons stem from, among other things, views about the fundamental purposes of marriage, the interests of children being raised in same sex relationships, and the impact of the move on religious freedom. For further reading on this topic let me recommend some other sources:

This is a debate that will continue for some time. Don’t cut it off by assuming those you disagree with are simply irrational.

Submission on Religious Freedom in Australia

Recently the Australian Law Reform Commission has had a consultation on Rights and Freedoms in Australia. Just the sort of thing I should have made a submission to, you might think. And so did I; except that, in the rush of getting ready for semester 1 teaching the Feb 27 deadline made a whooshing sound as it rushed by! So I was immensely pleased to discover that Freedom 4 Faith, an Australian group set up to further religious freedom, had put forward an excellent submission; in fact, far better than the one I might have prepared! I encourage you to read it. The submission clearly sets out the international obligations Australia has to protect religious freedom, the various limits on religious freedom, and how they should be approached. In particular it identifies very clearly the fact that there is a lingering tendency in those from the “mainstream” human rights area to cast religious freedom in a secondary role, even if they do so because they are unaware of their own presuppositions. See, for example, the paragraph in the ALRC discussion paper noted on page 4 of the F4F submission, where protection of religious freedom is simply labelled “discrimination” and a warning is issued about the needs of “vulnerable” people. The F4F paper clearly but politely points out some of these issues and proposes a model which would better balance out the right to religious freedom and the right to be free from discrimination. I hope that the ALRC will give it a great deal of weight in coming up with their final proposals later in the year.