There must be very few harder accusations to disprove, I think, than the accusation that a person committed some kind of sexual crime decades previously.
By their nature, sex crimes tend to be committed in private, with few witnesses. Naturally, those with the strongest memory of them are the victims. There is unlikely ever to be physical evidence that the crime took place.
Yet a prosecution can still establish some facts. It can usually be established that there were means and opportunities – that the accused person had access to the victim, for example, or were in a position of responsibility over them. You can establish if somebody was an altar server for a particular priest, or whether they played basketball for a particular coach. A prosecution might also make an argument about a pattern of abuse: Several victims telling the same story about a lone accuser, for example, might prove compelling. The prosecution might introduce a witness to support the accuser by noting that they told this story mostly unchanged years earlier to a confidante or friend.
Ultimately, however, in the standard case of a lone accuser and a lone accused, the jury and the courts are ultimately being asked to decide who they believe more. That is, in criminal matters.
The enquiry announced yesterday into historic sex abuse accusations in religiously run schools is not, at this stage, a criminal matter. That is immediately something that should give us pause for thought, because the burden of proof in a non-criminal process is clearly lower. A criminal court must establish guilt beyond a reasonable doubt. A Government enquiry, generally, will focus instead on telling a compelling story.
This is not to say that the Government enquiry will not seek truth, or seek evidence. It is to say, however, that its purpose is not to establish the truth of every single charge.
And there are many charges: A number of charges so high that they might give us pause.
The enquiry is to examine an alleged 844 sexual abusers across 308 schools. To put that in basic mathematical terms, that means that it is looking at an average of 2.75 active paedophiles in each school, and in some schools many more than that. Many of these schools were primary schools, where the total number of teachers would be very small.
Further, some of the accusations are eye-catching. For example, the five-volume scoping enquiry (the enquiry to establish the need for an enquiry) recounts the testimony of an alleged historic victim who reported that four separate abusers in the same school co-operated with each other to make their victim, and others, “wear fetish underwear” as part of their sustained abuse. Should it be proven that four teachers in a school were co-operating to make children wear fetish underwear and collectively abuse them, that would self-evidently be a new level of depravity not yet reached in any Irish sex abuse case. Yet surely for an accusation so shocking and hard to believe, there must be a process of investigation deeper than simply assuming it to be true and conducting a report on how it was allowed to happen?
After all, even in 1970s, 80s, and 90s Ireland, being a paedophile was a public taboo. The idea of four teachers in one school discovering a common interest and investing in then-hard-to-obtain fetish gear (in, we must assume, children’s sizes) requires one to believe that almost anything could have been possible in the school in question. It is the kind of accusation, I would argue, that a rational person should instinctively treat with skepticism until compelling supporting evidence is produced.
I do not select that example at random. There are others. Volume One of the Scoping report also approvingly recounts the following point made by an alleged victim, who said that he wanted the report to:
“Acknowledge that corporal punishment was wrong and used as sexual gratification by abusers. Acknowledge that corporal punishment was used in excess and that this was criminal.’
In the first instance, corporal punishment was not criminal in schools for most of this state’s history – perhaps it should have been, but it was not. In the second instance, the first sentence raises real questions about the enquiry, and what it is actually investigating.
No reasonable person could exclude the possibility that there were, amongst Irish teachers, sexual sadists who did experience some kind of sexual gratification from the administration of corporal punishment. At the same time, however, it would be egregiously wrong to imagine that the administration of corporal punishment was a sign of moral or sexual perversion in those teachers who administered it. The notion of an enquiry into sexual abuse considering corporal punishment as part of its remit is clearly and obviously primed for miscarriages of justice.
Then there’s the attitude of the victims towards the process. For example, the scoping report constantly highlights the victims’ fear that they will be aggressively cross-examined by legal representatives of their alleged accusers, or that counselling and psychological support might not be provided.
This is a dangerous game: We might all sympathise with victims who have no desire to face their accusers or to re-live their abuse. Yet at the same time, we live in a society where the presumption of innocence is supposed to be guaranteed. We are supposed to treat accused people with the presumption of innocence – or in other words the presumption that they have been wrongly accused.
So, imagine that you were somebody who had been wrongly accused. And then imagine that the state enquiry into your guilt was set up in such a way that prevented you or your representatives from exposing flaws in your accuser’s memory or challenging them on untruths that they had told. Would you consider that to be fair?
There is no doubt, evidently, that many people did experience sexual abuse in Irish schools. The purpose of this article, if you doubt it, is not to deny that or to cast doubt on the experiences of those who have come forward. Yet at the same time, there is an obvious problem and unfairness in a stance of blanket belief and acceptance. The number of accused paedophiles is extraordinarily high, some of the charges very hard to believe, the scope of the accusations very wide-ranging (from organised fetish rings to suspicions that some teachers overly-enjoyed the cane) and the risk of miscarriages of justice and fairness are self-evidently very high.
The state must take every effort to ensure that this does not turn into a witch-hunt. Unfortunately, there is very little reason to think that it will do so.