ANTHONY HOGAN. Law and the seal of Catholic confessional.

I continue to be concerned by the public positions taken by various Catholic Arch-Bishops (Prowse, Canberra Times, June 7, 2018; Coleridge Canberra Times, 11 July, 2018) with regards the Catholic confessional and the mandatory reporting of child abuse. The Church’s position against such laws is based on the arguments that:

  • people basically don’t confess such sins anymore so there is no issue
  • that children would not be safer
  • the priest has taken a holy vow to keep confidential what is heard in the confessional, and that
  • the practice of confession is a religious freedom and as such, that what occurs within the practise of religion is somehow outside the law of the land.

The question as to whether or not people confess a certain sin anymore, is tangential to the issue which is under debate. The question that is at issue here is whether or not a Catholic priest has a particular standing in society such that they can conceal a crime that has been committed, be that crime the abuse of a child, the bashing of a spouse or murder. Beyond legal professional privilege (which pertains to seeking legal or advice or advice with regards legal proceedings), in law, no one has the right in law to conceal crimes. The lawyers who are protected with such a privilege, are protected with regards preparing a client for, or in anticipation of court proceedings. This is the so-called ‘sole purpose’ principle. It is right and proper then that jurisdictions, such as the ACT, enact laws that make it mandatory for priests to report such abuses.

However, it is second and third points in their arguments that should be signalling alarm bells to the wider population. Priests with everyday experience of the confessional will tell you it is most likely the victims of assault who come to confession seeking assistance and guidance, not the perpetrators. Moreover, they will tell you that such priests don’t simply suggest that the victim inform a responsible adult. No, they facilitate the process, just as they would march a confessing offender down to the local police station. It is a long held Catholic tradition that the priest can and does set ‘conditions’ around the offering of any so-called absolution of sins, if it is offered at all. Indeed, flowing from the capacity for conditions to be set around confession, it follows that an offender can make the informed decision to make confession, knowing that the proper processes of law will be enacted, just as a child can seek help at confession, knowing that they will be protected. This, for example, would exactly be the case if the same person discussed such matters with a clinical psychologist. We’ve had mandatory reporting in human services for years now and such reporting has not resulted in children, en masse, not disclosing to clinical psychologists or social workers. What the Bishops seem to be doing here is perpetuating a myth about the confessional, rather than reflecting on its realities and everyday practice.

It is also important to note that at ordination priests do not take a holy vow to keep confidential what is heard in the confessional. At ordination a priest promises, for example, to celebrate faithfully and reverently … the Eucharist and Reconciliation. During the same ritual they also make a promise of celibacy. Respecting the so-called seal of the confessional is a matter of convention, of obedience to church law. And it is a law that only came into existence in the early 1,100s.

The final point, that the seal of the confessional should somehow attract protection as a religious freedom is also problematic. Even a brief review of international law makes it evident that there are limits to freedom and such limits arise when the assertion of one’s so-called rights infringes on the well-being of others. The issue of religious freedom pertains to a person’s right to practice their religion, but that freedom is limited by factors that are ‘prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’.[1]  Surely churches that are committed to social justice must support legal processes that seek to protect the most vulnerable in our society.

Finally, there is one blatant omission from the Bishops’ arguments which is really concerning and that is the fact that confession does not have to be conducted in secret, on a one-to-one basis. Roman Catholics have long had accessed to what is called a community rite of reconciliation. This is a process wherein people do not have to confess their sins face-to-face with the priest but can do so silently within a broader religious service. For sure, the rite does hold that there are some exceptions as to whether or not one needs to front the priest as well, but these are matters of church law and can be changed. The point being made here is that people can have access to confession without the notion of the confessional seal being at issue. What is concerning about the work of the Australian Bishops is that the Church is putting its energy into defending that which is redundant, and not working towards a win-win solution for the Church and the wider community. With such options available to them, perhaps it is time that the Bishops showed some leadership in the Church and introduced long overdue changes to the offering of reconciliation. By so doing they would enable their people to practice their religion, openly and freely, and in compliance with practices consistent with international law and charters of human rights.

Anthony Hogan PhD
Adjunct Research Professor
Practical and Contextual Theology Research Centre
Charles Sturt University
Barton

[1] https://www.equalityhumanrights.com/en/human-rights-act/article-9-freedom-thought-belief-and-religion

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5 Responses to ANTHONY HOGAN. Law and the seal of Catholic confessional.

  1. Joan Seymour says:

    I’m far from thinking that the Bishops have provided clarity about this issue. However, I doubt that Anthony Hogan’s summary is a fair one. Holy Vow? Really? And where’s the argument about the effect on other Catholics – this has been made, but Prof. Hogan seems to have missed it. Finally, is the suggestion that Confession should never be behind a curtain, and that people must prove their identity before they confess? My argument against a law mandating breaking the seal is that this law is unenforceable, so it’s bad law. Let’s hear a clear and unanimous voice from the Church, putting forward their real arguments so that we’re not carried away on the track of red herrings.

  2. Rosemary Lynch says:

    This article does not address the child troubled by abuse, who has been encouraged to name the perpetrator by the confessional seal of confidentiality, that we all learned as tinies. What the obligation is for the confessor to secure support and safety for the child should be obvious. But it hasn’t been, apparently. One could recite the international rights of the child, and respond appropriately. But in that response’s absence, children have been terribly hurt and damaged, and placed beyond hope. It is time for a human rights response: and the church hasn’t made it yet. Unsustainable, theologically, ethically, and legally. Get off your butt, Tarcisius.

  3. Ben Morris says:

    As Anthony Hogan suggests, the information regarding sexual abuse in the Catholic church was not collected in the confessional. This being the case, Australia’s Catholic bishops should show some spiritual leadership and concentrate on the structural changes which need to be urgently undertaken in their organisation to avoid similar tragedies for victims and obfuscation by people in authority, rather than attempting to keep the spotlight where it does not belong.

  4. Jim KABLE says:

    It should really only require that the Priest receiving Confession states that Absolution is conditional upon him accompanying the paedophile religious to the police station for a proper confession of the crime to the authorities.

  5. Bill Burke says:

    Anthony Hogan’s recommendation to the Australian Catholic Bishops and their communities is simple – stop defending the Confessional Seal because they are “defending that which is redundant, and not working towards a win-win solution for the Church and the wider community.

    He questions whether “  a Catholic priest has a particular standing in society such that they can conceal a crime that has been committed, be that crime the abuse of a child, the bashing of a spouse or murder.”

    He is comfortable with a privilege of confidentiality extending to the legal profession – “The lawyers who are protected with such a privilege, are protected with regards preparing a client for, or in anticipation of court proceedings.”

    Such declarative statements defy avenues of discussion. They overlook a long and admirable legacy where ministers of religion provided a cloak of confidentiality as persons of diverse backgrounds unburdened their darkest secrets and tried to muddle their way forward to a better place. A contribution honoured by the wider society by not exacting information from these same ministers. Quite the reverse – public monies have been expended to place ministers of religions in sensitive environments – like chaplains on the battlefield or in hospital wards or prison yards.

    If Professor Hogan’s views represent a majority view of today’s Australians, and it is so stated in legislation, then, I would expect Catholic Priests and Bishops to protect the seal and walk the path of another principle of Australian law – that of Individual Conscientious Objection which provides for a person to decline “participation in specific acts that, while legal, the participant believes to be fundamentally abhorrent.”

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