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Children’s rights versus freedom of religion: the sanctity of the confessional seal

Should the law of God or the law of the land govern the confessional box? flickr/emilio

In response to the ongoing cascade of accusations and evidence of systemic and decades long child abuse, the federal government finally announced a Royal Commission into institutional responses to child sexual abuse on Monday. One possible recommendation is already being mooted, that priests be obliged to report any knowledge of child sex abuse to police. Such an obligation would undoubtedly enhance protection of the rights of children. It would also interfere with the freedom of religion of priests if they are compelled to reveal information conveyed during formal “confessions”. In this clash of rights, which should prevail?

Statutory duties to report exist in other contexts, such as for medical professionals and teachers. In these instances, human rights may be at issue, particularly the right to privacy of a perpetrator, who for example might have revealed child abuse crimes during therapy sessions. It is, however, fairly easy to recognise that the privacy rights of the perpetrator should be subordinated to the rights of child victims of that perpetrator.

The imposition of a duty on Catholic priests to reveal communications imparted during confession raises different human rights issues. The competing rights are not between those of the perpetrator and the victim, but between the victim and the priest who has heard a perpetrator’s confession. Confession is a practice in the Catholic Church whereby a person can confess his or her “sins” to a priest in return for religious absolution. The confession is confidential: the “confessional seal” is a centuries old sacrament of the Catholic Church, and there are no canonical exceptions (see Article 1467 of the Catechism of the Catholic Church). So, for example, confidentiality applies even if vile crimes have been admitted. The breaking of that seal would force Catholic priests to act against their fundamental religious beliefs, even if compelled by law to protect the rights of vulnerable people. The same is true of priests in the Anglican Church.

Freedom of religion is recognised under Article 18 of the International Covenant on Civil and Political Rights, to which Australia is a party. It is not an absolute right so, for example, it can be limited by laws which are necessary to protect “the fundamental rights and freedoms of others”. Clearly, many manifestations of religious belief, such as polygamy or female genital mutilation, may be prohibited due to their impacts on the rights of others. Furthermore, religious practices do evolve. Indeed, formal one on one confession is declining in the Catholic Church.

Freedom of religion is in fact one of the only human rights recognised in the Australian Constitution in section 116. The constitutional provision has been interpreted narrowly, and no law has ever fallen foul of it. In any case, it only binds the federal legislature so such laws could be enacted by the States. Nevertheless, several Australian jurisdictions recognise the privileged nature of priest-penitent communications, exempting a priest from revealing confessional secrets in a witness box.

From a human rights law point of view, I believe that the priest’s deep religious adherence to the inviolability of the confessional seal can be required to give way to the need to protect a child’s right to be free from cruel and degrading treatment. But the former rights cannot be simply dismissed as irrelevant, out-of-date, or irrational. Notions of freedom of religion would have little meaning if they only apply to manifestations of rational beliefs shared by the majority: the very nature of religion is to buy into leaps of faith beyond the objectively provable. The human right to do that is an important one.

Regardless of my views on the appropriate balance here between competing human rights, it seems unlikely that many priests will obey a law which requires them to break the confessional seal. In response to proposed compulsory reporting laws in Ireland, its clergy has stated that they will engage in mass disobedience. And Father Frank Brennan is already on the record in Australia as saying that he would go to jail rather than reveal anything said “under the seal of the confessional”. On Monday, Cardinal Pell also stressed the inviolability of the seal of confession.

If a compulsory reporting obligation for priests is to apply to information revealed during confession, the outcome could well be that many priests go to jail due to their refusal to compromise profound religious beliefs rather than any desire to cover up crimes. Practically, it might be very difficult to prove that such information which was so revealed. It may be that the issue of the confession seal is a furphy, with little likelihood of useful information being attained from a compulsory removal of the seal. Alternatively, it might mean that child sex abuse crimes are simply not “confessed”. Perhaps these factors indicate that such a law would achieve little.

However, there still might be significant utility in such a law. On the weekend, Cardinal Pell made the strange comment that in the past, “they [presumably the Church and the perpetrators] were entitled to think of paedophilia as simply a sin that you would repent of”. Yet paedophilia is and has long been a serious crime and a heinous assault on the bodily integrity of the most vulnerable. Pell’s remark might indicate that the availability of religious absolution for such despicable crimes has exacerbated the institutionalisation of the problem by providing an easy way out for the perpetrator’s conscience.

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