Report: Pell Case Shows How Presumed Innocence Risks Becoming ‘Legal Fiction’

Judging decades-old sex abuse charges with no supporting evidence risks turning the presumption of innocence into a “legal fiction,” according to an analysis Monday of the case of Australian Cardinal George Pell.

Writing for Catholic News Agency, Canon lawyer Ed Condon notes that such cases quickly become examples of he said/she said, where juries must decide whom to believe in the absence of facts. In these cases, jurors’ predispositions to believe or disbelieve take on exaggerated importance.

“When judging the veracity of historical allegations becomes an exercise in choosing only between the word of the accuser and that of the accused,” Condon writes, “the right to due process is at risk of becoming moot, and the presumption of innocence of becoming a legal fiction; especially if the credibility of the accuser is placed formally beyond the reach of examination.”

Especially in cases involving alleged sexual violence or abuse, no one in this day and age wants to question the credibility of the accuser, since “victims should always be believed,” but this modern conceit does not negate the fact that people — even alleged victims — sometimes lie.

“Often — as in Pell’s case — the victim is the only witness,” Condon notes. “Commentators have noted that Pell’s jury, and the public, had only limited information about the accuser and his background. His credibility, some have observed, although central to the court’s proceedings, was not allowed to be discussed.”

The actual facts of the Pell case all seem to point to his innocence, whereas the only evidence suggesting guilt is the testimony of the party bringing the charges.

Pell’s accuser claimed to have been sexually abused by Pell together with another boy in a busy Melbourne cathedral on a Sunday morning in 1996, but the other boy denied that the incident ever took place. That other alleged victim died in 2014 and so the court could not hear his testimony and his refutation of the charges seems to have borne no weight in the trial.

As one incredulous observer exclaimed, “I am usually a fervent admirer of the jury system, but this wretched case shows its limits, where the public atmosphere is febrile to the point of hysteria and the allegations involve a celebrated public figure.”

Moreover, as a number of observers have pointed out, the liturgical vestments worn by Pell at the time the alleged abuse took place would have made such abuse tremendously awkward, if not physically impossible.

Even Frank Brennan, a staunch critic of Pell, said he found the description of the incident incredible.

“An alb is a long robe, worn under a heavier chasuble. It is secured and set in place by a cincture, which is like a tightly drawn belt,” Brennan noted.

“The complainant’s initial claim to police was that Pell had parted his vestments, but an alb cannot be parted; it is like a seamless dress,” he said.

“The police never inspected the vestments during their investigations, nor did the prosecution show that the vestments could be parted or moved to the side as the complainant had alleged,” added Brennan, who was present at the proceedings.

According to Mr. Condon, the debate around Pell’s conviction gives rise to a broader set of issues regarding our justice system, not least of which is, “In the climate of our time, what means are there — what will is there — to ensure that those accused of sexual abuse receive a fair trial on the merits of the evidence?”

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