Debates about the seal of confession intensify as Australian mandatory reporting laws move closer to reality

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The question of whether Catholic priests should be made to report child abuse revealed during confession continues to cause controversy in Australia as nationwide mandatory reporting laws move closer to reality.

The issue has been simmering for some time in Australia and has a long and global history, but the national Royal Commission into Institutional Responses to Child Sexual Abuse, which released its final report to the public in late 2017, has reignited the debate. In its investigations between 2013 and 2017, the commission found that 36 percent of survivors who came forward reported abuse at Catholic institutions.

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At the time, Archbishop Denis Hart, then president of the Australian Catholic Bishops Conference, said that the Royal Commission had uncovered “a shameful past, in which a prevailing culture of secrecy and self-protection led to unnecessary suffering for many victims and their families.”

“Once again I reiterate my unconditional apology for this suffering and a commitment to ensuring justice for those affected,” he said.

Several high-profile initiatives emerged out of the commission, including a National Redress Scheme established in June 2018 to provide support to survivors of institutional child sexual abuse.

As of October this year, 34 out of 35 Catholic dioceses in Australia had joined the redress scheme. “That means more than 99.5 percent of diocesan ministries, including parishes and diocesan schools, are participating in this important initiative. The remaining diocese plans to join the scheme soon,” said Archbishop Mark Coleridge, the current president of the Australian bishops’ conference.

“The Church wants measures that will genuinely make environments safer for children. There has been no compelling evidence to suggest that legal abolition of the seal of confession will help in that regard.” 

More controversial, however, has been a proposal intended to improve institutional reporting and responses. Recommendation 7.4 of the Royal Commission suggested that mandatory child protection reporting laws “should not exempt persons in religious ministry from being required to report knowledge or suspicions formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.”

Mandatory reporting laws are the individual responsibility of each state and territory government. They make it a requirement for people in certain professions, such as teachers, to report suspected child abuse to government authorities.

Canon law, however, forbids priests from disclosing what is said during confession. Canon 983 § 1 states that 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.”

The seriousness of the obligation is matched by the penalty for violation. Canon 1388 § 1 states that a priest “who directly violates the sacramental seal incurs a latae sententiae [automatic] excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.”

In response to the Royal Commission’s recommendation, the A.C.B.C. made its position clear. “Regarding the issue of the seal of confession, the Catholic Church does not view the sacramental seal as incompatible with maintaining child safety. The Church wants measures that will genuinely make environments safer for children. There has been no compelling evidence to suggest that legal abolition of the seal of confession will help in that regard,” it said in a statement in 2018.

One legal academic has suggested that it would be “wishful thinking to believe child molesters would disclose their offending in confession if priests were legally obliged to break confidentiality.”

The head of Catholic Social Services Australia, Frank Brennan, S.J., argued that “the abolition of the legal protection of the seal of the confessional will not render one child safer and might just take away the occasional opportunity for an offender to come forward seeking God's forgiveness with a firm purpose of amendment, including the desire to turn himself in.”

“I continue to assert that you can ‘get it’ in relation to child sexual abuse and still espouse the sanctity of the seal of the confessional properly understood and applied,” he wrote.

Indeed, one legal academic has suggested that it would be “wishful thinking to believe child molesters would disclose their offending in confession if priests were legally obliged to break confidentiality.”

“Arguably, maintaining the seal might prevent molesters from committing further acts of sexual abuse. During the confession, a priest can encourage the abuser to seek psychiatric help or come forward to the police,” said Hadeel Al-Alosi, a lecturer in law at the Western Sydney University.

Statements made to the Royal Commission by clergy indicate relatively few instances of child abuse being revealed during confession. This is in keeping with public statements from priests to the same effect.

Bill Uren, S.J., the rector of Newman College at the University of Melbourne, wrote: “I have been a priest for almost 50 years, and I have never heard the confession of a pedophile. Pedophiles are notoriously extraordinarily secretive.” And Bishop Greg O’Kelly, S.J., apostolic administrator of the Adelaide archdiocese, has said that in 46 years as a priest, no one had ever confessed child sex abuse to him.

“The legislation means people in religious ministries are now mandated reporters to child protection and the confessional seal must be lifted for suspected sexual abuse of children,” the government said.

In fact, confession, or the sacrament of reconciliation, is itself not particularly common among Catholics in Australia. Australians had grown accustomed to the third rite of reconciliation, general absolution, a practice which was essentially ended in 1998. The former Catholic priest Paul Collins has suggested “over the last 40 years [there] has been a complete collapse of people going anywhere near a confessional. Most Catholics, including myself, haven’t been near a confessional for 30 years or even longer.”

Nevertheless, Australia’s federal, state and territory governments have not yielded to the concerns of the church. In October 2018, the state of South Australia became the first jurisdiction to remove exemptions for priests from mandatory reporting when information about child abuse is revealed during confession, under threat of a $10,000 fine for failure to report.

In September 2019, several more Australian states and territories altered their mandatory reporting legislation. The state of Victoria passed new laws making religious and spiritual leaders mandated reporters. “The legislation means people in religious ministries are now mandated reporters to child protection and the confessional seal must be lifted for suspected sexual abuse of children,” the government said in a statement. Those who do not report abuse face up to three years in prison.

Likewise, the Australian Capital Territory altered its laws to make all ministers of religion mandated reporters. In response, the Archdiocese of Canberra and Goulburn said that in “the unlikely case of unreported child abuse being disclosed during Confession, priests will, without breaching the Seal of Confession, take the opportunity to encourage and assist the person to report to civil authorities.”

The state of Tasmania also changed its laws in September, threatening up to 21 years’ imprisonment for people in certain professions, now including religious ministers, for failing to report knowledge of child abuse to police. Archbishop Julian Porteous said he believed “the Tasmanian bill will not strengthen protections for children and vulnerable people, but it will have the opposite effect—as offenders will be less likely to come forward to confess serious sins for fear of being reported.... This will deny priests the opportunity to encourage offenders to report themselves to police.”

With these new laws emerging across the nation, on Nov. 29 the Council of Attorneys-General met to harmonize their approach to mandatory reporting for ministers of religion. The council brings together attorneys general from the Australian federal government and all states and territories to deliberate on, among other things, intergovernmental and cross-jurisdictional legal issues.

According to a communique released after the meeting, all states and territories have now agreed on a set of principles for their laws that would require priests to break the confessional seal.

“Confessional privilege cannot be relied upon to avoid a child protection or criminal obligation to report beliefs, suspicions or knowledge of child abuse,” the council said. Further, the seal of confession could not be used by any priest in civil or criminal proceedings “to excuse a failure to comply with any child protection or criminal obligation to report beliefs, suspicions or knowledge of child abuse.”

Likewise, the seal cannot be used “to avoid giving evidence in civil or criminal proceedings against a third person for child abuse offences.”

In response, Archbishop Coleridge and the A.C.B.C. have reiterated their support for nationally consistent child protection reporting regimes but again stated that the removal of legal protection for the seal of confession would not be supported.

“The removal of protections at law would be ineffective, counter-productive and unjust: ineffective because abusers do not seek out confession and certainly would not seek it out if they knew that their offences would be reported,” the archbishop said in a statement to Reuters.

He added that the removal of protections would be counter-productive “because the rare opportunity a priest may have to counsel abusers to turn themselves in and amend their life would be lost; and unjust because it would establish as a matter of law a situation where a priest would not be able to defend himself against an accusation made against him.”

The Australian bishops’ conference has recently received some concessions from the federal government in the form of proposed religious freedom laws. Among other provisions, these laws will allow hospitals, aged care providers and other services run by the church to employ people based on their faith in order to preserve the “religious mission and organizational ethos” of organizations.

But many in the church see demands to lift the confessional seal as an attack on religious freedom. Earlier this year, the Vatican even issued a note in response to civil movements like those emerging in Australia. “Any political action or legislative initiative aimed at breaching the inviolability of the sacramental seal would constitute an unacceptable offense against the liberty of the Church,” the note said.

How far Australian priests will go in defying the new laws and whether the church will take the fight to the courts remains to be seen.

Correction - Dec. 27. 2019; 11:20 a.m. E.S.T.: The figure in the second paragraph was initially reported to be 61.8 percent, but that figure applied to a subgroup of reports on all religious institutions. The figure has been corrected to 36 percent.

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