Should we name and shame those unable to defend themselves?

A YEAR after Bishop Brendan Comiskey fell on his sword in a swirl of controversy the Government has announced the terms of reference of an inquiry into how exactly allegations of child sexual abuse were handled

A year might seem like a long time but the terms of reference may have been worth the wait. They look thorough enough to get to the truth of a complex and tragic story. Why did people turn a blind eye to the evil in their midst? What combination of cynicism, ignorance or weakness let the children of Ferns down? Two experts have been appointed to assist retired Supreme Court Judge Frank Murphy in the inquiry.

Dr Helen Buckley, who worked on the national guidelines for the protection and welfare of children, will be the inquiry's specialist in child protection issues.

More interestingly perhaps, Dr Laraine Joyce, an expert in health management, has been appointed to review the structures and management of the organisations coming under the scope of the inquiry.

Some of the more prejudiced commentary on child sexual abuse in the Catholic Church speculates that it was the church's particular structures that caused much of the problem.

But, hopefully, Dr Joyce's work can inform us about the wider culture of secrecy that marked, and perhaps still marks, our society's approach to child sexual abuse, and help us understand why other should-be whistle-blowers, whether they be teachers, parents or the gardaí themselves, failed to take appropriate action.

The words 'in the context of the time' appear at least twice in Judge Murphy's terms of reference, which is just as well because much of the commentary on child sexual abuse in Ireland wrongly assumes the insights we have today were also available to the people who had to deal with these issues 25 or 30 years ago.

We now see clearly the psychological impact of child abuse and the major propensity of abusers to re-offend, but this was not always so obvious. Since some of those who dealt with allegations of abuse are now dead, and are not around to point this out, there is an even greater onus on Judge Murphy and his team to judge their actions as fairly as possible.

This sensitivity towards the dead does not seem to be reflected in the behaviour of another inquiry established by the State. The Laffoy Commission, set up by the Government in 2000 to inquire into child abuse in residential and other institutions, will soon find itself locked in a High Court battle with the Christian Brothers who are worried that people not in a position to defend themselves will be named and shamed as child abusers by the commission.

Of all the Irish religious congregations, the reputation of the Christian Brothers has suffered most since the country woke up to the reality of past physical and sexual abuse in residential institutions. At present, the Brothers have replied to 414 out of 710 statements supplied by the Laffoy Commission from people alleging abuse. But now they have decided to challenge a ruling by Judge Laffoy's investigation committee that it is not prohibited by law from making public the names of dead or elderly persons responsible for child abuse. The judge Ms Justice Laffoy points to the clear statutory mandate given to the commission by the 2000 Act that it should make determinations and findings which identify parties and institutions who were responsible for abuse. She says she will first apply a test to establish whether it is safe to make any individual determination of a claim where a significant period has elapsed since the alleged abuse occurred.

But she believes it would be "the exception rather than the norm" that prejudice caused by the lapse of time would make it unsafe to name abusers and the institutions they worked in.

In many of these cases, it has to be said, there will be a number of different people alleging abuse against the same individuals. Findings of guilt might well be justified but it is worrying, at the same time, that the commission will have very little else to go on before declaring certain people to have been child abusers. Consider the enormous cultural pressure on the commission to name and shame. Will it not be difficult for them to disbelieve what they are hearing, especially since so much attention is now paid (quite rightly) to the trauma of victims who were not listened to in the past? We are entering dangerous new territory here. The Christian Brothers point out that up to six decades have passed since some of the alleged abuses took place, and that it is unfair to people who are deceased, incapacitated or who cannot be traced to have such serious rulings made when they are not in a position to defend their reputations.

Not to mention the fact that for so many of these cases there will be no witnesses and no documentary or physical evidence to go on. These are circumstances where no civil or criminal court would make a finding of guilt, the Brothers argue.

They are right, but this is tribunal-land, and the standards of justice which we associate with civilised countries don't necessarily apply. Already we have seen politicians and business people marked down as 'corrupt,' which undoubtedly makes us feel good when we are sure the tag is deserved.

But what is happening to our criminal justice system in the process, the 'presumption of innocence' and that quaint old standard that you couldn't declare people guilty until you had proven it beyond all reasonable doubt? Defenders of the tribunal system reassure us that tribunals only make findings of fact, and that there are no accused parties, only 'witnesses.'

They argue that since no loss of liberty results from a finding of wrongdoing in such a forum, the absence of the normal protections for accused parties is justified. All that is damaged, they argue, is the reputation of the party found to have committed the wrongdoing. Pardon me for quibbling. When allegations of abuse are made against you, surely the only thing that matters is your good name?

There seems to be support for that cavalier attitude towards justice in the latest consultation paper issued by the Law Reform Commission (LRC).

Addressing the expense and delay involved in granting legal representation to parties appearing before tribunals, the LRC argues that "a very extravagant measure of constitutional justice has been granted in circumstances when it was not legally or constitutionally required."

According to Prof David Gwynn Morgan, who was head of research when the paper was drafted, the consultation paper examines how far it is possible to reduce the entitlement to 'constitutional justice' (defending your good name) while being consistent with fair procedures.

Yet ironically, on the same day that the Law Reform Commission published its paper, the head of the new Human Rights Commission, Dr Maurice Manning, said the new body would conduct inquiries into human rights violations, and he announced that his commission would produce a research paper on the human rights of older people.

Among those older people are former Christian Brothers and other members of religious orders who vehemently deny that they ever committed the abuse alleged against them, but who are not in a position to defend themselves after a time lapse of decades. They may hope that the Human Rights Commission takes an interest in their case.