Will Australia crack open the seal of confession?

Australia’s Royal Commission into Institutional Responses to Child Sexual Abuse has recommended that religious confessions should not be exempt from a criminal offence of failure to report abuse. In other words, priests should be required to break the “seal of confession”.

Of its 85 recommendations in the royal commission’s final report, this was the most controversial. It is most relevant to the Catholic Church, but it could also affect Anglican, Orthodox and Lutheran pastors.

The seal of confession requires the priest who hears the sins of a penitent never to disclose them in any way, for any reason. The Catholic Church has always taken this very seriously; offending priests are automatically excommunicated. It is a core feature of life in the Catholic Church, as a number of Australian priests and bishops testified to the royal commission. 

Sorry about this, the royal commission responded, but the crime of sexual abuse of children is so serious that no one can be exempted. A priest must report anyone who confesses this crime and must report abuse that a child confides to him. “We acknowledge that if this recommendation is implemented,” the final report says bluntly, “then clergy hearing confession may have to decide between complying with the civil law obligation to report and complying with a duty in their role as a confessor.”

Many Catholics were outraged. Father Frank Brennan, a well-known Jesuit and legal expert, said that he would be prepared to refuse to break the seal of confession. “And if there is a law that says that I have to disclose it, then yes, I will conscientiously refuse to comply with the law,” he told The Australian.

“All I can say is that in 32 years no one has ever come near me and confessed anything like that. And instituting such a law, I say, simply reduces rather than increases the prospect that anyone ever will come and confess that to me.”

So the likelihood of a priest being pressured to decide between his religious obligation and the letter of the law is small -- so small that you wonder why the royal commission recommended it, knowing how much it would incense Catholics. But it would place a sword of Damocles over a priest's head every time he heard a confession. 

The Anglican Church in Australia has already caved in on this issue. In 2014 its General Synod voted to abolish the canonical requirement of absolute confidentiality for confessions of "serious crimes and other acts that have led, or may lead, to serious or irreparable harm”. A doctrinal commission explained that the seal “appears to some to indicate self-protection and ecclesial self-interest, and not godly wisdom or best pastoral practice.”

From a Catholic perspective, the ethics of the matter are so clear as to be beyond dispute. When a person discloses his failings in Confession, he is speaking through the priest to Christ himself. This intimate dialogue between God and man is a sacred space upon which no one has a right to trespass. Priests have died rather than disclose what they heard in a confessional. As the Archbishop of Sydney, Anthony Fisher, testified to the royal commission:

“When a Catholic comes to a priest to confess, they understand they’re talking to God, and the priest is there to mediate that, to encourage that, to confirm that. But they think their conversation is to God. For a priest to repeat anything that has occurred during that confession would be a very serious breach of trust with them and contrary to our understanding of the sacrament.”

But in an increasingly secularised society, are there other reasons which support an exemption for priests who have heard a confession?

The state's desire to invade the confessional is centuries old. In 1393 the King of Bohemia dispatched his wife’s confessor, John Nepomucene, because he refused to disclose whether she had a lover. He is regarded as the first martyr of the seal. In totalitarian regimes, priests are always at risk. As late as 1927, a Mexican priest, Mateo Correa, was shot because he refused to disclose what he had heard from rebel prisoners before their execution. (He was declared a saint in 2000.) Alfred Hitchcock made a film (I Confess, 1953) about a heroic priest (played by Montgomery Clift) who is almost convicted of murder himself because he honours the seal.

In times past, treason was the blackest of sins. The seal was a feature of the famous Gunpowder Plot of 1605. The Jesuit superior in England, Father Henry Garnet, was implicated, but pleaded that he could not reveal what he had heard in confession. But the famous jurist, Sir Edward Coke declared:

This branch declareth the common law, that the priviledge of confession extendeth only to felonies ... and not to appeales of treason.

As the royal commission has in 2017, Coke's view was that some crimes are so subversive of the common good that there can be no exemption for confession. In an exemplary display of English justice, Father Garnet was sentenced to be hanged, drawn and quartered.

A more conciliatory and common sense approach comes from a surprising source, the 19th Century utilitarian philosopher Jeremy Bentham. Bentham was also a pioneering criminologist and wrote extensively about criminal law. He was not a Christian; on the contrary, he was a fervent atheist and believed that religion was a principal cause of mankind’s miseries.

However, he devoted a short chapter in his book Introductory View of the Rationale of Evidence to Catholic confession. In it, he makes points which are as relevant today as they were in the 1820s. He writes – in words which seem clairvoyant -- “let us therefore suppose the scene to lie in a country in which the Catholic religion is barely tolerated: in which the wish would be to see the number of its votaries decline, but without being accompanied with any intention to aim at its suppression by coercive methods.” In his antiquated and tortured syntax, this more or less capures the heartfelt prayer of much of the Australian media.

As a good utilitarian, Bentham contends that “The advantage gained by the coercion ... would be casual and even rare. The mischief produced by it, constant and all-extensive.” With great psychological insight, he described the effects upon citizens who would have to live under such a regime:

But with any idea of toleration, a coercion of this nature is altogether inconsistent and incompatible. ... [Penitents] would be pressed with the whole weight of the penal branch of the law; inhibited from the exercise of this essential and indispensable article of their religion ...

[To] confessors, the consequences would be at least equally oppressive. To them, it would be a downright persecution ... To all individuals of that profession, it would be an order to violate what by them is numbered amongst the most sacred of religious duties.

In this case, as in the case of all conflicts of this kind, some would stand firm under the persecution, others would sink under it. To the former ... it would have the effect of imprisonment—a most severe imprisonment for life.

As to those who sunk under it, ... [they would suffer] the infamy that could not but attach itself to the violation of so important a professional as well as religious duty.  

As we survey cases from the 14th to the 21st Century, it becomes obvious that the grounds for refusing to respect the confidentiality of confession keep shifting – from infidelity to treason to murder to child sex abuse. For each of these crimes there may seem to be weighty arguments. But the winner is not the victims of the crimes but the coercive power of the state. If it is sex abuse today, could it be a political crime tomorrow? 

Obviously, whether or not Confession is effective in obtaining God’s forgiveness is irrelevant in an aggressively secular society. But it can be defended on other grounds.

As argued above, the Catholic view is that sins, or crimes, are essentially being disclosed to God, and not to the priest. In a sense, the penitent enters a space where he is addressing his God, alone, face-to-face. Forcing a priest to disclose the sins he hears is effectively equivalent to forcing the penitent to self-incriminate himself, and this is an egregious violation of his human dignity.

Furthermore, precisely in the 21st Century, society needs to protect that sacred space, not to abolish it. We live in a era where privacy is at risk from governments and from corporations. Via the internet, the most intimate details of our personal lives are being filed away, commodified and commercialised. The space for intimate secrets is shrinking all the time. Passing laws to permit home invasions of consciences, even the consciences of criminals, is a step towards a soft totalitarianism.

That’s why everyone, Catholic or not, has a stake in this dispute over the inviolability of the seal of confession. Of course children have to be protected. But a law stripping confession of its privileged confidentiality would weaken human rights in Australia without protecting the children. In the words of Jeremy Bentham, “A regulation to any such effect would therefore be a virtual proscription of the exercise of the Catholic religion. In compensation for the evil of this tyranny, no good would in any shape be produced.” 


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