Confidentiality, Confession and the law

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In Victoria, confidentiality has recently been much discussed. Following the Royal Commission into the Sexual Abuse of Children the state government has promised legislation to force religious ministers to report the sexual abuse of children even if the information has been received in Confession. In Catholic practice the seal of confession has been sacrosanct.

Victorian Premier Daniel Andrews (Kelly Defina/Getty Images)More recently the Victorian government has called its own royal commission to deal with the public revelation that a lawyer had breached the professional duty of confidentiality to clients by cooperating with police. She had passed on to police the substance of conversations conducted under legal privilege.

The government has acted because the use in court of evidence gained in this way might invalidate the convictions of high profile criminals. The government has been careful to absolve the police leadership from blame in their decision to use evidence obtained in this way.

In each of these cases the confidentiality of privileged conversations with lawyer or priest, which those entering the conversation would once have seen as absolute, has now been breached once by legislation and once by the deliberate breach of a professional code by lawyer and police.

The two matters are, of course, different in their scope and the justifications offered for them, but together they suggest that in society authorities regard confidentiality as more negotiable than was once the case. For that reason the implications of these breaches of confidentiality deserve reflection.

In both cases the reasons given for weakening the protection of confidentiality were based on the relative consequences of respecting and of breaching it. To protect the confidentiality of confession within a religious context could result in crimes of sexual abuse against children continuing with impunity.

The Victorian police argued that they were involved in a war against crime in which many people were being killed. They were therefore justified in using lawyers as informers who could provide information by violating their professional duty of confidentiality to their clients. In any case, they argued that they violated no law in doing so. They did not, however, consider the possibility that cases brought against criminals trapped through the breach of confidentiality would be vitiated.

 

"This can be documented in many areas of Australian life over the last decade. Further down that path Stasiland looms."

 

Does it matter that confidentiality is infringed in these ways? The value of confidentiality is grounded paradoxically in the value of conversation which is central for human flourishing. We are social animals for whom free communication is essential for our personal growth and for the development of society. Through it we make connections, develop our sense of ourselves, explore the areas of fear, doubt and guilt in our lives, make plans for our future and consult on matters of vital concern to other persons and groups.

Good conversation demands mutual trust. When it is deep and about delicate relationships, it must be protected by a surrounding wall of silence. Whatever of the law, it is lacking in decency for participants to disclose what is understood among them to be confined to the conversation group. It would be similarly unethical to bug others' conversations, listen at keyholes, raid their wastepaper baskets for records, and to link the conversation to a loudspeaker blaring out over the town.

In conversation we normally expect a level of confidentiality, and our reputation for seriousness as human beings is rightly made dependent on our preservation of it. The expectation of confidentiality, however, depends on the seriousness of the conversation. To publicise the football allegiance of conversation partners would be trivial; to publicise an affair that they talked through with us, or to share with others outside a government committee secret information about a forthcoming major currency devaluation would be a gross breach of trust.

In the case of confession the argument for preserving its absolute confidentiality is based on the conviction that it is a conversation about the deepest realities, including discreditable behaviour, of people’s lives, and is understood by the partners to include God as the major partner in the conversation. That is why disclosure, voluntary or forced, of what is confessed in that conversation has been seen as a gross violation of trust and of religious duty.

The disclosure by a lawyer of what is said by a client in the course of privileged conversation has also been seen as a gross abuse of trust with potentially harmful consequences. The harm is not confined to the relationship between the client and the lawyer, but extends to society as a whole.

If confidence in this relationship is eroded by information damaging to the defendant being made available to the prosecution, and if police officers connive in breaches of fiduciary duty, trust in the fairness of the judicial system will be lost. Justice will no longer be seen as blind but as one-eyed, and all conversations will become guarded.

The erosion of confidentiality is serious because it can easily become incremental. Authorities in any organisation always find life easier when they can operate in secrecy and have access to information about those they supervise. It is natural for police to want access to confidential interviews and for governments to legislate to give themselves access to personal information. Once conceded, the demands become more extensive. This can be documented in many areas of Australian life over the last decade. Further down that path Stasiland looms.

Nevertheless, the right to confidentiality in serious matters is not absolute. It can be overridden by the certain threat of serious harm that will occur if it is maintained. But given the harmful social consequences that follow from breaches of confidentiality that threat needs to be established and not merely surmised. There should be a bias in favour of confidentiality: exceptions should be defined as narrowly as possible and should be regularly reviewed.

 

 

Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street.

 

Main image: Victorian Premier Daniel Andrews (Kelly Defina/Getty Images)

Topic tags: Andrew Hamilton, confidentiality, seal of confession, royal commission, clergy sexual abuse

 

 

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Existing comments

Andy's points are well-taken. Unfortunately, I fear that we have lost the sense the human rights are universal and have replaced it with the insidious concept that they are just favours extended to the "deserving". In such a world, protections once extended to all are eroded by excluding unpopular people until they protect no-one. The justification that "Lawyer X's" clients were "wrong uns" meant that they didn't deserve protections which the law extends to everyone finds a ready echo in the claim that "illegals" deserve to be detained indefinitely and tortured in island concentration camps because they picked the wrong mode of transport to flee their persecutors. While the abuse and cover ups which took place within the Church are horrific, there was little, if any, evidence that the sacrament of confession (as opposed to clericalism, abuse of power and poor formation) had anything to do with it. Nevertheless, the sacrament was collateral damage of the justified sense of outrage at the Church. Similarly, we are quite happy to deny Julian Assange the liberty to publish traditionally extended to journalists because his crusade for transparency included the "wrong" targets. Provided the "wrong" people are taken away first, we will welcome the police state.
Justin Glyn SJ | 12 December 2018


Thanks Andrew! I think the right to confidentiality of a paedophile confessing child abuse is not as great as the right of an abused child to have this abuse reported to police. In my opinion, the right of politicians to remain in office is not as great as the right of refugees to be treated compassionately, which is not happening under the largely bipartisan policies of the federal Coalition and Labor, so I couldn't put any of these politicians first on my ballot paper. At least Australia is a democracy, with separation of powers, unlike the official Catholic Church, whose policies and practices must change radically if it to be taken seriously as a Christian church, even though there are many very Christian clergy and laity in its midst.
Grant Allen | 12 December 2018


I once prepared a group of children for their first reception of the Sacrament of Penance. At one point, I explained the 'seal' of the confessional to them. "Father won't tell anyone about what you talk about. Even if Mummy or Daddy ask, he won't tell. It's just between you and Father and God, always". I don't know whether they remembered this, but one of the little siblings did. She'd been sitting at the back of the room with her mother, because she was much too young for the Sacrament. A few weeks later, in the church for her brother's First Confession, she asked her mother if she could go and talk to Father where he was sitting on the sanctuary hearing the confessions. Mum asked me, I asked the priest, and the five year old went up and had a little chat. Later her mother told me her daughter had been really interested in the idea of a confidential conversation. The priest told me nothing. Of course. It wasn't 'the sacrament' the little girl received, but he surely regarded her trust in him as sacrosanct, and rightly so. Even her action in coming forward was not referred to. That's the nature of the sacramental relationship, and it only works if trust is established and maintained, for a five year old child or a hardened criminal. I absolutely trust that our priests, even the worst of them, will not break the seal, whatever the law says.
Joan Seymour | 12 December 2018


Fr Andrew, I applaud the principles of confidentiality you aim to uphold, but would you afford the same legal protection to a pastoral carer of a non-catholic religious denomination or a lay catholic pastoral care worker listening to a potentially litigious confession from someone in their care?
Aurelius | 12 December 2018


There’s one big difference between the reason for the secrecy of the confessional and the secrecy between lawyer and client. The lawyer is also a servant of the court and has a duty to uphold the integrity of the court. Part of that duty to the court is to ensure a fair trial.
Ginger Meggs | 12 December 2018


"Good conversation demands mutual trust". I agree, Andy. And of course both people in the conversation have to agree about confidentiality and the value of their association. Mutual trust isn't pulled out of thin air, it is built over time.
Pam | 13 December 2018


It is curious. One of the issues raised many times during the Royal Commission was how the actions of those accused of abuse was the breaking of trust in the relationship. Yet now we are hearing demands that trust in the seal of the confessional be broken.
Joanna Elliott | 13 December 2018


They say hard cases make bad law and that you can have an exception to a rule but not a principle. Having dictated a breach of confidentiality between a penitent and a confessor for one caterory of offences why not homicide or other sexual assaults or offences of violence or serious fraud? Once the wall has been breached what other bricks may fall? On the other hand, these principles and rules are man made and are changeable by us.
Kimball Chen | 13 December 2018


Thank you for grounded and informing article. I particularly valued the comment re: trusting, free communication/conversations so necessary for our human development and growth. Freedom to be in safe trusted environment. Thank you Andrew
Jennifer Callanan | 13 December 2018


Thanks, Andy, for a very helpful reflection on the confidentiality principles common to both the professional duty of lawyers and the sacramental duty of confessors. As you conclude, the right to confidentiality in serious matters is not absolute and “can (must?) be overridden by the certain threat of serious harm that will occur if it is maintained”. The Royal Commission recommendation on the seal of confession does not question the principle or the general application of confidentiality to matters confessed in the sacrament but concludes, after substantial examination and analysis of evidence, that the seal of confession should not be accepted by the civil law to excuse a confessor from a general requirement in society to report knowledge of paedophiles at large to the police. The distinguishing factor is your “threat of serious harm that will occur if (confidentiality) is maintained”. Even without the requirement under proposed civil laws, it would seem consistent with the spirit and purpose of the sacrament that a penitent who constitutes a grave danger to children should be required to accompany the confessor to the police as a condition of absolution.
Peter Johnstone | 13 December 2018


The application of omerta in lawyer's interactions with their client in the lawful pursuit of justice is essential. This is not unrelated to vacuous, contradictory arguments re justification of 'torture' in some circumstances. Torture is never justified. In Northern Ireland over 1,000 'political' murders during the attempted putsch by fascist-light 'armed struggle' viz. murder and mayhem (1966/98) remain un-investigated by police - justice for the slain cries out and the unconvicted 'killers in our midst' live out their deceitful, duplicitous lives, infecting everyone in society here and elsewhere with the stench of their hypocrisy. The kind of omerta that protects these killers from justice cannot be justified. I'm not convinced about the need for the 'seal of the confessional'. Penitents need not identify themselves to a confessor to achieve 'God's' forgiveness. Confessors do not check up on a penitent's 'purpose of amendment'. Anyway individual confession was a control device formerly deployed in the church's desire for power, beneficially and otherwise, over their members. It is not needed and can readily be replaced by communal confession that does not require anyone other than 'God' to hear the gory detail of a penitent's misdemeanors.
Dr Philip O'Keeffe | 14 December 2018


The justification for the violation of professional duty by breach of confidentiality in a war against crime, rather begs a question of the unintended consequences of collateral revenge. War against crime lends itself to an “all bets are off” scenario and an increasing risk to professionals in general of being enveloped in a fog of suspicion. Short term gain by the dissolution of professional boundaries may well result in more people, not less, being killed.
Peter Griffin | 14 December 2018


Dr Philip O'Keeffe. You make a very interesting point re communal confession - the third Rite of Penance - which is accepted as valid in the case of emergency such as war or an imminent plane crash. One of the charges brought by conservative members of the diocese of Toowoomba against Bishop Morris was that he promoted the Third Rite over individual penitence as a means of alleviating falling priest numbers in the diocese. I agree with you that to approve the Third Rite in all instances would seem to solve the problem of the seal very simply. And after all, the Third Rite is still the valid sacrament. Perhaps to adopt it as the norm erodes hierarchical power which seems to be threatened by simplicity - attested to by the created language of the theologians which only they have invented and only they can thus understand!
john frawley | 14 December 2018


How disturbing to read in the comments of the description given to a child"Father won't tell anyone about what you talk about. Even if Mummy or Daddy ask, he won't tell. It's just between you and Father and God, always". Described as a "sacramental" relationship it was this power that "even the worst of them" used against thousands of children when they were being sexually abused. We must remember the threats that were made in God's name so that these children also wouldn't tell anybody "even Mummy and Daddy". I never gave any priest the right to put my children, or indeed anyone else's children at risk. My firm belief is that Christ never gave them the right either. Mandatory reporting when abuse is revealed in the confession will make children safer. My trust lies with the Royal Commissioners who made this recommendation after five years of listening to the evidence from those who were brave enough to speak.
Patricia Hamilton | 16 December 2018


The Third Rite is meant to be exceptional because talking to an invisible God who does not respond in a sense that is material and proximate is like talking to yourself. It is the listening human agent who can provide the accountability of shame, but only imperfectly so when the identity of the penitent is veiled from the confessor. Rather than a generalised Third Rite, perhaps Catholics should have the courage of their convictions and expose their defects to a priest who can look them in the eye.
roy chen yee | 18 December 2018


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