Next week the Royal Commission into Institutional Responses to the Sexual Abuse of Children is scheduled to deliver its final Report. From what we have heard it seems likely it will recommend that the seal of confession should no longer be regarded in law as inviolable.
If, either through the confession of a perpetrator or the report of a victim, a priest becomes aware in the sacrament of reconciliation that the sexual abuse of a child has taken place, that priest will be obliged by law to bring the incident to the notice of the police and to identify both perpetrator and victim. The seal of confession will therefore not be protected by law in such circumstances.
The possibility of this recommendation from the royal commission has caused not a little consternation. In most contemporary western jurisdictions, the seal of confession has been legally exempt, and quite a number of films in particular have centred around this exemption, especially where a murder has been committed and confessed.
But the horrific revelations of the royal commission and the realisation of both the long-term effects of the sexual abuse of children and the addictive nature of paedophilia have led to a reassessment of the legitimacy of this exemption. Not only the royal commission but also many members of the community — and not only those hostile to religion — now think that such an exemption from the onus of reporting should no longer be accorded to priests, the perpetrators and their victims.
First, let me say that I have been a priest for almost 50 years, and I have never heard the confession of a paedophile. Paedophiles are notoriously extraordinarily secretive, and it is unlikely, even with the seal of confession still being operative, that they would expose themselves to the remotest possibility of being identified through the sacrament of reconciliation. I further suspect that, if the seal of confession is no longer exempt in law, paedophiles are even less likely to reveal themselves as perpetrators in confession.
Secondly, let me say that, unless the penitent takes steps to show who he or she is, the priest rarely has any idea of the identity of the person confessing. That's why most confessionals are dark and obscure, why there is a veil of some sort between the priest and the penitent, why most priests turn side-on when hearing confessions. It is precisely to protect the identity of the penitent.
The belief which surfaced at the royal commission that priests normally know who their penitents are and could reveal their identities to the police is naïve. Only when confessions are conducted in a public space or face-to-face would it be possible for a priest to identify a penitent. I doubt whether paedophiles, even if they were to go to confession, would do so in any other but a dark and non-identifying context.
"If a small child comes to the sacrament of reconciliation and says she has been sexually abused by her uncle, precisely because it is not her sin it does not fall under the seal of confession."
Thirdly, and this is very important and frequently misunderstood: the sole subject of the seal of confession are the sins of the penitent and only those other circumstances which are integral to the nature of the sin. So, if a small child comes to the sacrament of reconciliation and says she has been sexually abused by her uncle, precisely because it is not her sin it does not fall under the seal of confession. She is not the sinning perpetrator or accomplice, she is the innocent victim of the abuse. The priest would not be breaking the seal if he reported such an incident to the police.
Because of the common misunderstanding that everything that happens in the confessional falls under the seal of confession, the priest would probably be well advised to ask the child to repeat outside the confessional what she has said inside the confessional. But whether said inside or outside the confessional, the report that one has been the victim of sexual abuse does not fall under the seal of confession.
Of course, if there are matters other than sin that are revealed in the confessional, they would also normally be regarded as strictly confidential. The priest, as with any other professional counsellor, would only in very exceptional circumstances reveal the details of these private non-sinful confidences. One of these exceptional circumstances would be when a child reveals that she (or he) has been the victim of sexual abuse.
Fourthly, what to do if it is a paedophile who confesses child sexual abuse in the sacrament of reconciliation, particularly if he or she expresses sorrow and a sincere purpose of amendment? This is very difficult. Recent studies indicate that, because of the addictive nature of paedophilia, even perpetrators with the sincerest purpose of amendment are likely to re-offend unless confined and removed from children. I believe, therefore, that a priest would have no alternative but to defer absolution of such a penitent until the perpetrator has surrendered himself to the police.
Some moral theologians claim that such a policy is unnecessarily severe. They say it should be sufficient to defer absolution until the penitent has handed himself over to treatment and is confined in a psychiatric or similar institution. I am doubtful if such an alternative will be effective. I doubt whether it will sufficiently guarantee the security of other children from the likelihood of further offences at the hands of even the most contrite self-confessed paedophiles. I suspect that it is only the legal system that can guarantee sufficient security and protection from future offences and, of course, provide some solace for the previous victims.
Of course, you may ask: Why is the Church as severe in deferring absolution with paedophiles and compelling self-surrender to the authorities when it is not so demanding with other penitents — for instance, murderers? Well, there are other precedents for deferring absolution. For instance, absolution in cases of significant theft is normally conditional on restitution of the stolen goods. And if some other innocent person is liable to be convicted and imprisoned for a crime which I have committed, when I come to the sacrament of reconciliation and confess that I am the real perpetrator, I will expect absolution to be deferred until I have handed myself over to the authorities and the innocent defendant is released.
Finally, however, does the seal of confession still bind the priest if the paedophile confesses his sins but refuses to hand himself over to the authorities? Then, certainly, absolution should be deferred or even denied. But does the seal bind the priest not to reveal the identity of the perpetrator and his/her sin?
I'm afraid that the seal does bind the priest to absolute secrecy, even in such horrific circumstances, and even granted the likelihood that the perpetrator will re-offend. The subject of the seal is the sins of the penitent, and this is what the paedophile has confessed. He has confessed in the sacrament asking forgiveness not just of the priest but of God. Unfortunately he is not willing to take the only reliable steps to ensure he will not reoffend by handing himself over to the law, and so without this commitment absolution will be denied — as an incentive to take the step which he is currently refusing.
But he is still entitled to the inviolability of the seal. He has come freely to the sacrament in a spirit of penitence on this understanding, and it would be a devastating breach of trust not to honour the seal. The priest, of course, will counsel him to surrender himself to the authorities and to seek psychiatric treatment, but even if refuses, he will be protected by the sacramental seal.
As regards the sins which the penitent confesses the sacramental seal is absolute. If exceptions were to be made to identify paedophiles, it would be only a matter of time before exceptions would be sought for other crimes where recidivism is endemic: e.g. mafia-style murders, domestic violence, serial infidelity, serial rapists etc. And then the inviolability of the seal will be shattered.
I know this is very difficult, particularly when we have come to realise both how widespread and devastating child sexual abuse is and how some perpetrators have exploited the seal of confession to obtain absolution, and then, because of the addictive nature of paedophilia, have gone on to reoffend. I suspect that the royal commission will recommend that, for these reasons, the seal of confession should no longer remain absolute.
But I also know that all priests of my acquaintance will rather go to jail than violate the seal. I cannot then see that no longer exempting the seal will be anything but unproductive. Perpetrators will be less likely to go to confession and priests will go to jail.
Fr Bill Uren SJ AO is Rector of Newman College at the University of Melbourne.