Should Australia break open the seal of confession?

Just before Christmas, the long-anticipated report of Australia’s Royal Commission into Institutional Responses to Child Sex Abuse was released. It put forward 85 detailed recommendations. In the light of the horrific stories of abuse which emerged from the five-year-long inquiry, most of them seem quite sensible.

But not all of them.

The media zeroed into two of the 85: to make celibacy voluntary for Catholic priests (Recommendation 16.18) and to compel priests to report child sexual abuse heard in the Sacrament of Confession (7.4). As the Royal Commission’s report acknowledged, these are pillars of the teaching of the Catholic Church.

Would these radical changes make Australian children safer without creating greater evils? That is the question that Federal and State legislators must ask.  

First, celibacy. The Royal Commission argues that “For many clergy and religious, celibacy is an unattainable ideal that leads to clergy and religious living double lives, and contributes to a culture of secrecy and hypocrisy.”

Child sex abuse is a serious issue and serious study is required to purge it from religious institutions. But this assertion is not serious. It is based largely on a searing study by an Irish sociologist, Marie Keenan, Child Sexual Abuse and the Catholic Church: Gender, Power, and Organizational Culture. Keenan, who submitted a deposition to the Commission referencing her book, interviewed seven abusive Irish priests and two religious brothers, six of whom had been abused themselves, and five of whom were homosexuals. Her message – based on the testimony of these nine men – is that the whole Catholic theology of sexuality “contributes to self-hatred and shame”.

It’s hard to dispute this – if you include the untested testimony of these nine men and exclude the lives of thousands of others who believe that celibacy is a fulfilling affirmation of love. Government meddling in the ancient tradition of celibacy is not going to make children safer.

The seal of confession 

Second, the seal of confession, a custom that obliges priests to absolute and scrupulous secrecy about everything they hear in confession. With campaigners for a Catholic sexual revolution like Keenan advising the Royal Commission, it is not surprising that it has also recommended its effective abolition.

This is no small detail for Catholics. Priests have been martyred for not disclosing what they have heard. The law of the Church is blunt and stern. Canon 983, paragraph 1 states: “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”

However, the Royal Commission contends, based apparently on Keenan’s Irish experience and the Australian testimony of Dr Gerardine Robinson, a psychologist who treated 60 to 70 priests at Encompass Australasia, that the seal of confession encourages recidivism. Confident that their sins will not be betrayed, paedophiles offend, confess, feel relief, and offend again.

But this no longer seems to be true. Dr Robinson told the Commission that this “was the case ‘most definitely, particularly in older clergy, not so much now, in younger clergy’”.

So of two experts on the impact of confession on the behaviour of abusive priests, the Australian admits is that it does not seem relevant to younger priests. There has been a generational change. 

The Irish expert’s analysis is based on her interviews with the nine serial abusers. But it is not clear how old their crimes are. Confessors nowadays are no longer sympathetic to recidivists. Tellingly, one of the priests is quoted in Keenan’s book as saying: “one day perhaps toward the second last abuse, I went to confession and this man absolutely just went for me ... he just said to me, ‘you know what you are doing is not alone morally wrong, it is a criminal act.”

This was, in other words, the most contemporary advice. And it appears to have stopped this man's crimes.

However, the Royal Commission apparently takes the view that nothing has changed since the 1960s – or even 1860s – and has shaped its recommendations accordingly.

Failure to report

The Royal Commission has recommended the creation of the crime of “failure to report” sex abuse – from which priests who have heard something in confession would not be exempted. A priest can refuse to comply with a court order to report the content of a confession – but he will probably be jailed for contempt of court.

A number of Australian clergy told the Royal Commission that they would prefer incarceration to dobbing in a penitent. Nonetheless, implementation of mandatory reporting will place a sword of Damocles over the head of every priest. He can suffer in his conscience or he can suffer in jail.

At the moment, Section 127(1) of the Uniform Evidence Act allows priests to refuse to give evidence about what they have heard in confession. This applies in the Commonwealth, Victoria, New South Wales, Tasmania, the Australian Capital Territory and the Northern Territory. 
The Royal Commission proposes that this privilege be abolished if the priest hears about child sex abuse.

It would be a drastic step, the Royal Commission admits, but the risk to children outweighs all other considerations. Furthermore, in a secular society, there is no reason why an eccentric religious belief in the divine sacramental power should be protected. It concludes: “A religious confession privilege protects the practise of those who hold particular religious beliefs from the operation of the civil law.”

Before rejecting this assertion as anti-religious twaddle, defenders of the seal of confession should grasp its strength. The aim of the adversarial trial process is to find the truth. If witnesses refused to testify, the justice system would fail, so there is a presumption that all evidence is admissible in a court of law. Exceptions are permitted only to serve some overriding social or policy concern.

Over the years, the grounds for such exceptions have been squeezed tighter and tighter. Confidences between friends are not privileged; the doctor-patient relationship is not privileged; the journalist-source relationship is not privileged. Not long ago, Australia’s High Court clarified all doubt about whether communications between spouses are privileged: they aren’t. Husbands and wives can be forced to give incriminating evidence against one other.

Curiously, at least from a layman’s point of view, there exists only one exception: communications between lawyers and their clients. These have traditionally been regarded as essential to protecting the individual against the power of the state. This is eminently sensible. However,this also implies that your deepest anxieties of conscience are only safe with your lawyer, not with your spouse or with your priest. As lawyers write the laws, a cynic might observe, it’s hardly surprising that legal professionals and their clients enjoy protections that the rest of us lack. It’s the ultimate lawyer joke.

Although moderated by the discretion of judges, the trend is, therefore, towards the abolition of privilege. Mandatory reporting of confessions of child sex abuse fits into this broad trend.

But, to return to the fundamental question, will abolishing the seal of confession make children safer? Given that priests prefer jail to disclosure, probably not. The only thing it will achieve is extending the coercive power of the State.

Is this the time?

And is there a counterbalancing good that comes from the abolition of this legal exception?

Probably not. The Royal Commission’s recommendations come at an historical moment when privacy is in crisis. As the revelations of Wikileaks whistleblowers have shown, governments can and do hoover up the private communications of their citizens through the internet. Giant corporations like Google and Facebook can access their most intimate details by analysing Big Data. Just yesterday the US House of Representatives reauthorized surveillance by intelligence agencies without need for warrants.

The seal of confession has a deep symbolic significance for everyone, not just Catholics; it can’t be viewed in isolation from the ever-shrinking scope for personal intimacy in contemporary society. Abolition sends an intolerable message: that nowhere is there relief for an overburdened conscience -- except with an expensive lawyer. And, as we have seen, this “fixes” a problem of recidivist paedophile priests which probably no longer exists.

In any case, why should priests report only child abuse? Terrorist crimes are even more heinous; shouldn’t they be included? And given the hysteria about #MeToo, why not mandate reporting of sexual harassment? And, in due course, the next crime du jour?

Child sex abuse is a crime that cries to heaven – all the more so if the perpetrator is a minister of religion. But passing laws to compel priests to violate the seal of confession will do nothing to stamp it out. Instead, it leads us ever further down the road to a Big Brother state.

Michael Cook is editor of MercatorNet.


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