Why the seal of the confessional should remain in tact

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I was accurately quoted in The Australian ('Catholic Row over probe into confession', 30 November) saying, 'If a law is introduced to say that a priest should reveal a confession, I'm one of those priests who will disobey the law.' Being also a lawyer, let me explain.

ConfessionalLike most Australians, I have been appalled and distressed by the revelations before the Royal Commission into Institutional Responses to Child Sexual Abuse. I hope this five year royal commission is able to provide solutions so that institutions are made safe places for children.

I am one of those Catholics who has been rocked by the disproportionate number of victims whose assailants have been members of my church in positions of trust. The Catholic Church ran more schools and orphanages than most other organisations. But that provides no excuse or justification for what went on. Nor does it provide a complete explanation for the horrific statistics.

It's now clear that prior to 1996, most institutions, including churches, police forces and state child welfare agencies, were insufficiently attentive to the signs of predatory behaviour by pedophiles.

Prior to 1996, the Catholic Church was a closed, hierarchical, opaque organisation administered by bishops who were more like feudal princes than modern accountable managers. The clericalist mindset of a celibate male clergy compounded the vulnerability of children preyed upon by church personnel.

Understandably the royal commission wants to recommend procedures and safeguards for all institutions which deal with children. If the commission's recommendations are accepted by governments and legislated by parliaments, these institutions will have to comply or accept the legal consequences.

Given the separation of church and state, the royal commission is not in a position to prescribe changes to church teaching, discipline or structures. But it is in a position to prescribe minimum standards of accountability, transparency and training.

I have no doubt abuse would have been less prevalent in the Catholic Church if some of the bishops were married with their own children or if some of the bishops were women. The state is not in a position to direct that priesthood and elevation to the episcopacy be available to married men and women. I am one of those Catholics who think the Church would be the better for such changes. Most bishops presently think the Church would no longer be 'Catholic' if such changes were made.

 

"I was a priest in Kings Cross for many years. On one occasion a person came to confession and confessed to murder. I did not go to the police."

 

The state is in a position to direct that an organisation headed by a celibate male priesthood have in place structures and procedures which ensure that those men are sufficiently accountable and transparent in their care for children. Fortunately, with the shortage of priests, there are now more lay people within the Church in positions of authority. But our bishops still have a long way to go in moving beyond the clericalist mindset that 'Father knows best'.

Understandably the royal commission is wanting to look into any distinctively Catholic practice or structure to assess whether it has contributed to the likelihood of increased child sexual abuse — either because it compounds the likelihood of a person offending, or more probably, because it compounds the likelihood of those in authority not taking appropriate corrective action when abuse is first reported or suspected.

One distinctively Catholic practice is personal confession in which an individual confesses to God their sins and seeks forgiveness in the presence of and at the hands of a priest. Some groups and individuals are proposing to the royal commission that the seal of the confessional no longer be inviolable. They point to legislative changes in Ireland which require a priest to report to police what he learns in the confessional if the confessed sin is child sexual abuse.

Catholic priests are bound by the Church's Code of Canon Law which provides: '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. A confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded.'

The inviolability of the confessional was last comprehensively considered in 2012 by the Protecting Victoria's Vulnerable Children Inquiry which was chaired by retired Victorian Supreme Court Judge Philip Cummins. That commission recommended, 'An exemption for information received during the rite of confession should be made.' The report noted: 'a statutory exemption to the reporting duty should be provided in relation to information received during a religious confession. In Victoria, information revealed during religious confessions is considered privileged when admitting evidence before courts.'

Then Victorian Premier Ted Baillieu ruled out changes to the seal of the confessional. He said members of the Inquiry 'all concluded that the sanctity of the confessional should remain. I think that's a powerful argument.' I am convinced that the seal of the confessional is a red herring when it comes to protecting vulnerable children.

I have been a priest for 31 years. I help out in a Canberra parish where mass attendance is still very high. But I can count on the fingers of two hands the number of parishioners who present for confession on any Saturday evening before mass. In 31 years, I have not had one single person confess to pedophilia whether in an institution or within their own family. Pedophiles tend to be secretive and manipulative. They don't come to confession. I am not aware of the royal commission having heard evidence of pedophiles regularly confessing their egregious sins and being left undetected. If the law were changed to mandate reporting of pedophilia confessed to a priest in the sacrament, the only effect would be to ensure that no pedophile every approached the confessional. The suggested legal change would be counter-productive.

 

"If a pedophile were to present at confession telling me that he or she had assaulted a child, I would stipulate as part of the penance that the person report the matter to police and receive treatment and counselling. If they were unwilling to do so, I would deny absolution."

 

I was a priest in Kings Cross for many years. On one occasion a person came to confession and confessed to murder. I did not go to the police. I did not know who the confessing person behind the screen was. I did not know the identity of the victim. I did not know when the offence was committed. I did not know in which jurisdiction it was committed. I had no right to know, and no duty to inquire. I had no idea whether the person had in fact committed a murder or some lesser offence. Imagine going up the road and reporting these details at the Kings Cross police station.

If a pedophile were to present at confession telling me that he or she had assaulted a child, I would stipulate as part of the penance that the person report the matter to police and take some steps to receive treatment and counselling. If they were unwilling to do so, I would deny absolution. But I would not breach the seal of the confessional.

Often when hearing a confession, a priest will have no way of identifying a victim. He will have no idea of the date of any offence; it may have occurred decades ago. He will have no idea of where any offence was committed; it might have been Parramatta, but then again it might have been Paris or Parabadoo.

If the only information available were from the confessional, chances are that it will be information which is useless to police or child protection officers. If confessional reporting were mandatory, chances are that the perpetrator would simply not come to confession. So even in brute consequentialist terms, there is no point in making confession reportable to the police. If it were mandatory for everyone to report, pedophiles and perpetrators of domestic violence would be left with no one to speak to.

Most, if not all priests, would prefer to go to jail than disclose material from confession which could 'betray in any way a penitent in words or in any manner and for any reason' even if the penitent be a child molester, a murderer or a terrorist. And that's not because we don't feel compassion for children or other innocent persons. We respect the sacredness of the sacrament where the penitent and God relate in the presence of the priest.

Kids will be better protected in future if we put to one side the furphy about the seal of the confessional and address the real questions about uniform mandatory reporting and clear guidelines for reporting any suspected serious crime.

The difficult case for a confessor would be when the penitent expresses contrition for having taken action aimed at harming innocent persons in the future, not when the penitent presents confessing past sins such as pedophilia. Were a penitent to confess that he had planted a bomb which might harm the innocent in future, I would deny absolution unless the penitent undertook to disarm the bomb and I would do all in my power to report information to the police to save those lives in danger, but I would not disclose the identity of the penitent.

A priest should never be required to disclose anything heard under the seal of the confessional. The state has the same right to regulate matters for a priest outside the confessional as to regulate matters for all other citizens outside the confessional. Not one child will be saved by abolishing the seal of the confessional. With the seal intact, the occasional pedophile might find a listening ear to assist with the decision to turn himself in. With the seal breached by law, confession will be unavailable to careful serious offenders except at the hands of those priests who have declared that they will conscientiously refuse to comply with the law. The royal commission needs to focus on those changes which it can effect and which could make a real difference in protecting children.

 


Frank BrennanFrank Brennan is a Jesuit priest and professor of law at Australian Catholic University. An earlier version of this piece appeared in The Weekend Australian, 3-4 December 2016 with the title 'Breaking the seal of the confessional a red herring that will not save one child'.

Topic tags: Frank Brennan, confession, clergy sexual abuse

 

 

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Existing comments

Fr. Frank are you saying that if a young child confesses sexual abuse you would do nothing about it? I know of a child who reported regular abuse to a priest because it felt safe to do that in private, knowing that the perpetrator would not find out, it went on for years. Surely in this situation the priest would be compelled by God's law re the sanctity of a child rather than church ethics around the seal of confession.
Trish Martin | 05 December 2016


So Trish, are you saying that when I explain to children that they are confessing their sins to God, I should lie and tell them that I can't repeat anything they say because of that privileged communication, or should I explain to children that the seal of confession is not absolute so they will never speak of that experience to anyone and not have the benefit of the advice a priest ought to give them in that situation?
Paul | 05 December 2016


It seems that the confessional is not widely used by Catholics at this time. The belief that one can rely on someone treating confidences as private matters is very important in developing trust. And without trust there is no real relationship between clergy and laity. Many professionals are mandatory reporters when child abuse or neglect is apparent or suspected. However, I can understand why a priest would conscientiously refuse to comply with such a law.
Pam | 05 December 2016


Sacramental Confession seems to be out of vogue with modern Australian Catholics. Most are happy with the General Confession and Absolution in the Mass. Whilst I believe in the sanctity of the confessional, I think, in the interests of child protection and accountability, we need to do away with the old fashioned confessional boxes and either have Confession in the open, but with people standing well away from the confessor and penitent, as the Orthodox do, or a confessional where the priest is clearly visible, but not audible, to the public. I also hope we have gotten away from the hell fire and damnation religious teaching of the 1960s in this country where Catholic youths were taught masturbation was a terrible sin etc. The effect of that on most who suffered it was either excessive guilt which was counterproductive or total rebellion. I found my Religious Knowledge teaching on sex at my Catholic school tended to infantalise my and my contemporaries approach to sex and stunt our ability to deal with women. When I changed schools in Year 11 for my 'English public school in South Yarra' - Anglican - their approach to the whole subject of sex and sexual development far saner. I think, as you say, much of the enabling of paedophilia in the Australian Catholic Church was due to the dreadful, old fashioned autocratic 'top down' ecclesiastical system. That needs to be changed. Sadly, there are still many in ecclesiastical positions in this country who think this scandal will eventually blow away and we can go 'Back to the Past'. It would be a tragedy if we did.
Edward Fido | 06 December 2016


Thank you Fr Frank for your non legalisation use of words for we who can then form an opinion, As a lapsed catholic, I often wonder why the Church admits Anglican married priests to come on board with family. Bless you for being in my world that at 81 is becoming more puzzling to cope with.
Maria Fatarella | 07 December 2016


Fr Frank,did I miss something ? So if a person came to you, in confession, and told you they were sexually abusing a child who was in their care, e. g. teacher/father/priest etc and told you that child's name so you could identify both victim and perpetrator .......you would not " go to the police/authorities /victim etc and reveal this information? Thanks for the article.
Peter Collins | 07 December 2016


I agree there should be no law to force priests to break the seal of the confessional. But it might be necessary to make a distinction between a sacramental confession and a non- sacramental admission to a church tribunal investigating abuse. Presently, such a tribunal is subject to strict Canon Law demands for secrecy presumably to avoid scandal for the church. I suggest that abuse would have been much less prevalent in the Catholic Church in the absence of those demands and priests giving evidence in secular investigations would have been less compromised by their claims of 'can't remember'. The Catholic Church has been tainted by its own Canon Law support for 'cover-up' aka 'conspiracy of silence' especially as there is as yet no attempt at corrective actio.
John Casey | 07 December 2016


An interesting line of argument. On the one hand, Father Brennan boldly assets: "I have no doubt abuse would have been less prevalent in the Catholic Church if some of the bishops were married with their own children or if some of the bishops were women." No evidence can be adduced of course to support such a claim. Yet, on the other hand, Father Brennan also equally boldly asserts: "Not one child will be saved by abolishing the seal of the confessional." How can he be so sure either way?
Frank Golding | 07 December 2016


"I would do all in my power to report information to the police to save those lives in danger, but I would not disclose the identity of the penitent." That seems to mean that you would disclose information obtained in the confessional, but just not the identity of the penitent.
Gavan | 07 December 2016


A way of protecting children would be to ban male dormitory supervisors in Catholic boarding schools and replacing them with women. I agree priests and religious should be allowed to marry. As for the seal of the confessional Im not so sure. Pedophiles are as secretive and cunning as you suggest so the probability of them confessing to such crimes is low. Refusing absolution, its not much of a deterrent. The offender could go to a different priest if that ocurred. The orders need to tackle the problem squarely from within. Inside the confessional its too late. My cousin was abused by a headmaster for 2 years when he was 12 after his father died. Monumental damage to his psyche is an understatement. The brother is now deceased and there was some nominal compensation paid some 20 years after the crimes occurred. I concurr with your comment about these men being manipulative. He offered my aunt extra tuition after school, lower school fees, promised to take extra care. Told a 12 year old he "loved" him and then took him swimming in the pool. Swimming was not the objective but gratification was. Exclusively male schools should be abolished.
francis Armstrong | 07 December 2016


So Paul, do you not think that God would expect you to step in and do something to stop the child's persistent suffering? A child at risk needs an advocate on behalf of God.
Trish Martin | 08 December 2016


The child has not committed a sin, the perpetrator has. So no seal applies to the child. The priest I would then think is obliged to assist the child to go to the authorities. With the perpetrator the priest could interrogate the paedophile - how many times has this happened in the past? If more than once, then what about the confessional promise to "not sin again." If that is not adhered to then absolution can be denied and thus no seal of confession applies. Problem solved! Though Fr Frank's caveats about knowledge of the perpetrator and his acts would apply.
Bob Munro | 11 December 2016


I am in general agreement with this argument but with 2 qualifications. 1. I am aware of a pedophile priest who confessed regularly, and so am less sanguine about such priests not confessing. 2. Could it not be argued that a 'confession', where absolution is refused because penitent won't report to police, is not in fact a valid confession and thus not bound by the Seal?
Michael Leahy | 12 December 2016


Confession is primarily for the paedophile and only incidentally concerns the victim, just as an emergency liver transplant performed on a paedophile is primarily for his benefit and only incidentally for the victim’s. In the first case, how the paedophile sees his victim is relevant only to the extent of whether there is sufficient penitence to warrant forgiveness. In the second, the incidental benefit to the victim of the paedophile being kept alive is to save the processes of justice from lapsing. Paedophilia is not a special case. The variety of serious sin is endless. Saving a soul from hell is the sole urgent reason why confession exists. That’s why there should be no impediment placed in the way of a paedophile coming to confession.
Roy Chen Yee | 16 December 2016


We raised three children (and have young grandchildren). I freely admit to the occasional fleeting impulse to 'smack that smart mouth' when facing acerbic adolescents. I relied on Dad's experienced counsel for coping techniques to live up to my non-violent ideals. The broad chasm between such counsel's benefits and blind condemnation's self-perpetuating damage illustrates a desperate need for new approaches toward both child victims and their abusers. US schools now brag of strict 'No Tolerance' policies against everything from drugs to 'hate words'. One student was punished for saying doctors feared an infant relative was 'retarded'; that word was 'on the list'. Shame without education discards the baby with the bathwater; it breeds ignorance, promoting furtive desire fulfillment. Shaming a child for eating sweets without nutritional guidance and tasty alternatives merely promotes secret snacking. Blind hostility toward people battling with inappropriate sexual urges encourages similar behavior. A secret problem is a problem compounded. If a priest admits temptation, should he be counseled or shunned and reviled? Wouldn't addressing the deeper psychological problem without shaming also lighten the victims' burden? Don't they feel guilt by association? Imagine a time when children could openly question such advances before years of secret self-loathing.
RKeith | 08 January 2017


I was a victim of sexual preditation by a priest in 1961-2. I recieved an appolgy from the Marist father's forty years later.That helped. I was a lawyer for forty years. Sexual cases were a constant reminder of my invasion but you act for whom comes in the door. I have asserted for years that priests do not confess to their sexual activity. Your absence of a confession in 31 years is some confirmation of my assessment. I tipped as a youth that Father Green and one Rainbird were deviates(Tasmanian) long before they were flushed out.I assert that unless you have been interfered with in this way it is not possible to understand the hurt. The celebecy of Priests is a nonsense and part of the cause.Priests don't confess because they do not think that what they have done is wrong. Regretfully from being one who was most religious and considered the Priesthood for some considerable time but ultimately my sexuality could not be ignored and celebicy not an option.The final position position for me is man invented god we were not created and there is no life hereafter. One must be god like towards mankind in any event.
michael lillas | 24 January 2017


Several commenters show a very worrying ignorance of Catholic doctrine and/or practice. To take one seemimgly technical but actually very important mistake by Bob Munro, the promise "I will try not to sin again" or as some say it "I will not sin again" refers to the penitent's intent at the time of THAT confession. It is not an ABSOLUTE guarantee not to commit any particular sin again. If a man does commit the same sin again and goes to confession again to the same priest, and in the unlikely event that the priest recognises him from last time, he has no right to deny absolution just because the man promised last time to try not to sin again! Absolution can be withheld only if the priest has very well-founded reasons for believing that the penitent does not CURRENTLY intend to try to avoid that (and any) sin in future.
Peter Kennedy | 13 February 2017


A criminal would hardly be the one to be found in any confessional, confessing any sin. They are usually very clever actors and cunning at avoiding drawing any attention to their evil deeds. If priests were to be required to "break the seal of confession" then, it would be also required from lawyers and doctors, etc (who are currently required to live by Hippocratic Oath and thus also to maintain complete privacy of the patients/clients). Is this what a democratic society seriously wants?
Law and justice must prevail | 14 February 2017


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