The Royal Commission into Institutional Responses to Child Sexual Abuse has recommended that the Catholic ‘seal of confession’ should not exempt priests from a proposed offence of ‘failure to report’. That offence would apply to any failure to report to police in circumstances where a person knew, suspected, or should have suspected that a person associated with their institution had sexually abused a child.
The proposed law is focused on likely continued offending and is intended to get paedophiles off the streets. The Royal Commission wanted to ensure that, wherever possible, known paedophiles are not at large and free to sexually abuse children.
The response of some Catholic commentators has threatened defiance of any such civil law by confessors, despite the Church’s stated commitment to the more effective protection of children. At a time when the issue of religious freedom is receiving publicity, this issue goes to the heart of current state/church relations.
Though few Catholics today use sacramental confession, the seal is a key feature, providing a guaranteed assurance of confidentiality. Strict canon lawyers will argue that canon law forbids a confessor from disclosing confessed material regardless of the content, circumstances and consequences. Canon law can of course be changed.
The question raised is whether a religious confessor (Catholic or other religion) who obtains knowledge of the sexual abuse of a child, or of a child abuser, in a sacramental confession, should be bound by the proposed civil law. The Commission, having thoroughly examined the evidence before it, decided that no religious confessor should be exempted from the mandatory requirement to report.
Any person who sexually abuses a child is a continuing danger to children. The requirement to report is based on substantial evidence of the past failures of institutional personnel to report. The consequence was predators remaining at large and more abuse.
In April 2010 the Vatican’s Congregation for the Doctrine of the Faith gave permission to bishops to report child sexual abuse by clergy to the civil authorities, but only where there were civil criminal mandatory reporting laws. Up to 2017 such laws existed only in NSW and Victoria. The Royal Commission has recommended that such laws be introduced throughout Australia.
“Governments legislate for the common good, for all citizens. They must not be thwarted by customs or laws of particular religions which could threaten the common good.”
All Australian governments are now supportive of mandatory reporting but are cautious about exempting information gained in a sacramental confession. Politicians are being pressured by church representatives to back away from what they say is an attack on the religious freedom and sacred doctrinal position which will lead to civil disobedience.
As the Commission noted, religious freedom cannot be absolute. No society should necessarily exempt religions from laws made for the common good. The International Covenant on Civil and Political Rights provides that religious freedom may be the subject of such limitations to protect public safety, order, health, morals or the fundamental rights and freedoms of others.
Most Australians would hope that any citizen would bring to the attention of the police any knowledge of criminal plans to harm society, be it the sexual abuse of children or a terrorist plot to blow up the MCC on Grand Final day. They would not expect an exception to be granted to secular or religious professionals in their professional roles.
Yet they are being asked to make an exception for knowledge acquired in a sacramental confession because it is covered by a seal that some consider should be protected by virtue of religious freedom. Against that argument, for the common good and above all for the safety of an innocent child (the paramount good), should any person with that knowledge be exempted from a moral and legal obligation to report to the civil authorities?
The arguments for exemption of the seal ignore or deny the harm to children that can arise from failure to report. They claim that the law would be ineffective because few paedophiles go to confession, their identity can be hidden from the confessor, and they might not confess if the seal did not apply.
These arguments are conjectural and ignore the basic principle that all possible harm to a child must be forestalled. The seal is a provision of canon law that can be varied, and its application to known future crimes against society has long been the subject of much debate throughout the Church’s history.
The Royal Commission’s recommendation comes in the wake of massive church failures to protect children from sexual abuse. The evidence shows that churches, and particularly the Catholic Church, chose to protect the abusers within its ranks, rather than protect vulnerable children. It seems to have learnt little from its tragic failure in its duty of care, and its criminal complicity in implementing a cover-up of the abuse. It continues to deny that its institutional failures ruined the lives of thousands of innocent children.
Arguments for exemption implicitly assert the innate superiority of church law over civil law. They see no need to review canon law in light of the Commission’s evidence and conclusions, or even to adjust current practice within canon law. Bishops could today mandate all confessors to refuse absolution to paedophiles unless and until they have reported themselves to the police, but they have not done so.
Governments legislate for the common good, for all citizens. They must not be thwarted by customs or laws of particular religions which could threaten the common good. Arguments that seek to exempt anyone from a civil law that mandates the reporting of a known continuing danger to children, on the basis of religious freedom, are not well founded. Jesus made no exemptions when he said it would be better to be drowned with a millstone rather than harm a child. Neither should we.
This article was published by Eureka Street on the 17th of July 2018.
Peter Johnstone is a member of Catholics for Renewal. He gave public evidence to the Royal Commission on the governance panel in the Catholic ‘wrap-up’ hearings in February 2017. Peter is chair of the board of Jesuit College of Spirituality. The views expressed in this piece are personal.