KIERAN TAPSELL. Sex Abuse and the Seal of the Confessional

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse has just released its Criminal Justice Report in which it deals with many matters  relating to the way child sexual abuse within institutions is handled by the Australian criminal justice system. In the course of that report, it recommends mandatory reporting of all suspected child sexual abuse within institutions and the creation of new offences of failing to take proper care to prevent such abuse.

One recommendation that understandably created some media interest is that there should be no exemption to the reporting requirements for information provided in confession.

The Commission’s report produces convincing evidence, not only in Australia, but also overseas, that priest sex abusers used confession as a means of assuaging their guilt. It made it easier for them to repeat their crimes because confession was always available.

In a response to the Report, Fr Frank Brennan S.J. stated that a civil law requirement for priests to break the seal of confession was unlikely to lead to better protection for children because abusers would not confess such matters if they knew they had to be reported. Brennan said that he would disobey any such law and accept the consequences.

Archbishop Hart, the president of the Australian Catholic Bishops Conference, in his response said that the secret of the confessional is a “fundamental part of the freedom of religion…and it must remain so here in Australia.” In an interview on ABC Radio, Hart said he would go to jail rather than breach the secret.

It is surprising that no Church representative has mentioned a way in which the Church could significantly reduce the risk of breach of the seal by a fairly simple change to canon law based on a problem that has a long history.

Ever since private confession became the practice in the Church in the early Middle Ages, there has been a continual problem of priests soliciting sex in the confessional. The Church was so worried about the practice that the Council of Treves in 1227 required such priests to be excommunicated. In 1622, Pope Gregory XV required penitents to denounce such priests to the Inquisition or to the bishop, and that confessors should advise penitents of their obligation to do so. In 1741, Pope Benedict XIV confirmed this decree, and added that absolution should be refused to solicited penitents until they denounced their confessors. He also decreed that only popes could give absolution to penitents who falsely accused priests of soliciting.

The persons solicited were mostly women, less so men, but rarely young children because until 1910, they did not go to confession until they reached the age of 12 to 14 years. In 1910, Pope Pius X reduced the age to 7 years thus broadening the opportunities for paedophiles to find their victims. A number of case studies examined by the Australian Royal Commission confirmed that such soliciting of young children in the confessional had occurred in Australia.

The 1917 Code of Canon Law continued Benedict XIV’s 1741 decree, and required the penitent to denounce the soliciting priest within one month. The 1983 Code abolished the requirement to denounce and the reservation of absolution to the pope for false accusations against priests. Instead, it imposed an automatic interdict, a form of excommunication, on anyone making a false accusation. Canon 982 further provides that anyone who confesses to making a false accusation “is not to be absolved unless the person has first formally retracted the false denunciation, and is prepared to repair damages if there are any.”

Unless there is some other way of repairing the damage, one can only assume that canon law imposes an obligation on the penitent to pay defamation damages, and until they are paid, there will be no absolution.

Canon law does not require clergy who sexually abuse children to be subject to an interdict, and does not require absolution to be withheld until such time as they hand themselves over to the civil authorities.

With the stroke of his pen, Pope Francis could apply the same strict standards that canon law imposes on those who falsely damage a priest’s reputation to the much more serious matter of child sexual abuse.  If he did, it would become well known to child abusers in the Church that they could not receive absolution, unless they handed themselves in to the police. The problem of the seal would be solved: if the abusers wanted absolution, they first had to hand themselves over to the police, and then there was no need for the confessor to break the seal by reporting; if they did not want to hand themselves over, they would not go to confession, and then there was no confessional seal to be broken. And in the latter case, the abuser would be denied the comfort of confession that the Royal Commission found was a contributing factor in the abuse of children within the Church.

This is a much better solution than Archbishop Hart and Fr Brennan having to risk becoming bloodless martyrs by going to jail in the defence of the seal, and it avoids endless arguments over the boundaries of religious liberty.

If Pope Francis refuses to change canon law to apply the same canonical strictures to child sexual abuse that the 1983 Code imposes on false accusations of soliciting sex in the confessional, then he leaves himself open to the inference that he regards a priest’s reputation as being more important than the sexual abuse of children.

Kieran Tapsell is a retired civil lawyer and the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse, and of a submission to the Royal Commission into Institutional Responses to Child Sexual Abuse: Canon Law, A Systemic Factor in Child Sexual Abuse in the Catholic Church. He was also a member of the canon law panel before the Australian Royal Commission 9 February 2017. This article was published in the National Catholic Reporter on 18 August 2017: https://www.ncronline.org/news/opinion/sex-abuse-and-seal-confessional

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8 Responses to KIERAN TAPSELL. Sex Abuse and the Seal of the Confessional

  1. Jim Kable says:

    I was quite looking forward to seeing Denis Hart walk himself into gaol – but in this essay Kieran Tapsell has done us all a service – saved a “martyrdom” and quite probably saved many more people from in-the-confessional sex abuse/protection from paedophile priest secretive absolution and repetition of such practices, etc.

    Refer this on to Francis for his seal of approbation at once, Denis – or Frank! Let’s see your own bona fides in this matter.

  2. Czaba Etcel says:

    When I read something like this article, and my skin crawls. I don’t believe Francis will act as Kieran suggests, the more’s the pity.

    Why not bring back the stocks? Let’s not have sex offending priests have to go to the police under their own steam before absolution is granted, but have them placed in the stocks for three times the time between one Angelus and the next. That’s more than 72 hours. Day and night, in the open regardless of the weather. Naked. And open to any punishment the people choose that does not include any recognised weapons. So no guns, machetes, farm implements and such. Anything else is fair game. Any disgusting, rotten, excremental, stinking, stinging sludgy mess. Mirroring what people who love children think they are! To be repeated every anniversary of their first Stocks Punishment for at least ten years.

    So no gaol-time that the rest of us have to pay for. Just the public ridicule, abhorrence, contempt and horror they have earned, all their own choice.

    So what do you think? Shall we bring the stocks back for priestly paedophiles?

    • Kieran Tapsell says:

      No. Society has moved on from this kind of punishment. The media now provide the shaming equivalent of stocks. Child sexual abuse is not going to disappear, and is going to have to be dealt with sensibly and without singling out clergy for special treatment. The point of my article was not about the abuse itself, but about the failure of the popes to put in place appropriate systems through canon law to deal with it. You may well be right that Pope Francis will not do anything about changing canon law. All that will prove is that he is affected as much by clericalism that he so often condemns, as everyone else in the hierarchy. As the anthropologist, Frank Linton, quipped, the last things to notice the water are the fish.

  3. Well done Keiran,
    I enjoy your work, maintain your voice of truth speaking.
    You make a good point, with a practical solution to ‘Confessional’ confidentiality.

    However, with respect, to your good self, most thinking people would see ‘Confessional’ confidentiality as an over simplification, of a far more complex conundrum. Which has engulfed the church’s credibility, in its explicit collusion with those who are lawless? Recalcigents, who have no regard for either the Law of God or the Law of man – but become a Law unto themselves.

    Lest we forget, just as the criminality of paedophilia and the more scandalous criminality of its systemic cover up and protection, are two different things – not one.

    So too is the question of Confessional Confidentiality and the Oath of Absolute Obedience to Institutional Authority, two entirely different things – not the same.

    This mandatory Oath of Absolute Obedience,
    which in effect is an ‘oath of silence’, or the ‘OMERTA’ demanded by these Institutions. Is also in effect, the only surety for those with an ongoing vested interest in career clerical patronage.

    I am sure your many readers would value your learned research, into this vexing question.

    Significantly, not one ‘Institutional Insider’, has been prepared to break the ‘Omerta’, (the Institutional Code of Silence). Not even for His Name sake, or for the sake of the gospel of Truth and Justice – up until now.

    Significantly, all of these Leaders have taken an oath of ‘total’ allegiance, submission and obedience to ‘Foreign’ authorities, in their respective Denominations. Thus seen in the Royal Commission as giving mere lip-service, of allegiance to uphold our National Rule of Law.

    Yet as a Nation, we outlaw citizens who give their allegiance to ‘Foreign Powers’, such as ISIS, etc.

    Pray tell, how do they differentiate, in the conflict of allegiances, between Cannon Law, Sharia Law, Mosaic Law or Aboriginal Law etc, above the Rule of Law common to us all?

    A classic case of protecting Institutional vested interests and their sizable assets, above and beyond that of the continentality of a sinner.

    Is this not a classic Gospel example of the impossibility of ‘Serving two Masters’, you’ll love one and hate the other? Or is it a house (A Dualistic Consciousness) divided against itself, that can’t stand? Or is it ‘Your Enemies’ being that of your own house hold?

    Sadly, a fallout and consequences of the loss of credibility and confidence in the Gospel that affects all who would take the proclamation of the Gospel seriously. A loss of confidence, which arguably, will outlast the effects of climate change.

    But hope and faith do spring eternal – for the rare recovery of the courageous Prophetic Voice, of ‘Insider’ Truth Speakers – of conscientious objectors, of whistle blowers – to once again to be heard in our midst and in our time.

    A Prophetic Voice, who would ‘speak truth to man, on behalf of God’, not the other way around.

    Another simple and practical solution to an otherwise intractable ‘Canonical’ problem – so called

    PS. With respect, after five years of hearings and $500 million cost in the Royal Commission. No one has yet specifically identified the real causation and or solutions, of this insidious Systemic Corruption and its many forms of Child Abuse in our hallowed Institutions – sexual abuse being one of them.

    Where are our Learned, our wise and our courageous men, women and parents -churched or unchurched? With an earnest duty of care and compassion, for our most defenceless and abused of little children?

    Hopefully, it will become the foundational basis, of the ‘National Conversation’ we have to have, of our future generations

    Regards,
    Michael J Wood OM. oneinchristfellowship@gmail.com

    • Kieran Tapsell says:

      The oath of allegiance to the pope only becomes a problem in the case of child sexual abuse because canon law still imposes the pontifical secret over all allegations of child sexual abuse by clergy where there are no applicable civil reporting laws. Canon law still requires a cover up in those cases, and this was confirmed by the Congregation for the Doctrine of the Faith in its 2013 letter to the Australian Catholic Bishops Conference advising them that clauses 39 and 40 of Towards Healing 2010 (which imposes mandatory reporting of all allegations to the civil authorities) did not apply to clergy and that Sacramentorum Sanctitatis Tutela 2010, which, by Article 30 applies the pontifical secret, did apply to them. In response to that letter, the Australian Catholic Bishops Conference in 2016 amended Towards Healing to comply with the CDF letter.

  4. Joan Gordon says:

    Remember the popularity of the third rite of confession before it was deemed unsatisfactory to the bishops? Here we came together as church community to reflect and, in effect, the community healed together. No need for confessional boxes; those at the church I attended were converted to toilets.

  5. Dennis Green says:

    To Kieran Tapsell: Given that confession is conducted at an anonymous level, one might expect that anyone (priest or otherwise) who came to confess to actions of paedophilia would seek out a priest confessor whom they did not know and could not recognise their voice. If the penitent were not obliged to name the victim(s) or themselves, or the places and dates, what “information” would the confessor have to be able to report? On the other hand, is there not a power within the confessor to withhold absolution until the penitent presented themselves to police with the relevant details? Alternatively, would the confessor be able to demand these facts before giving absolution with the penitent then knowing the obligation of the confessor to report?

    • Kieran Tapsell says:

      The Royal Commission found on convincing evidence that priest sex abusers used confession as a means to assuage their guilt, and that made it easier for them to re-offend because they knew that confession was always available. One way of discouraging this systemic factor, was for the abusers to know that the confessor had an obligation to report the matter to the police. The point you make about anonymity is a good one, and it supports my argument that a change to canon law would be an even better way to discourage this misuse of the sacrament. Archbishop Hart and Fr Frank Brennan have said that they would withhold absolution until the penitent did hand themselves in to the police, and they must consider they have the right to do so. However, opinions on that right might differ. If canon law made withdrawal of absolution compulsory in cases of child sexual abuse, (as it does when the penitent confesses to falsely accusing a priest of soliciting sex in the confessional) then there would be little point in the abuser going to confession if he did not wish to hand himself in to the police. The “comfort” of absolution would be not be available in all such cases, whether the penitent was anonymous or not.

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