The Legislative Assault on the Seal of Confession

The McGowan Labor Government in Western Australia recently introduced the Children and Community Services Amendment Bill 2019. The principal aim of this proposed legislation is to introduce mandatory reporting of child sexual abuse, and this would be enforced by compelling clergy to break the Seal of the Confessional in the event an act of child sexual abuse was disclosed to a priest during a Confession. The bill, stated to be an implementation of one of the recommendations of the Royal Commission into Child Sexual Abuse states, in proposed new section 124BA

Section 124BA. Provisions for ministers of religion.   

In this section – religious confession means a confession made by a person to a minister of religion in the minister’s capacity as a minister or religion in accordance with the tenets of the minister’s faith or religion.

For the purposes of section 124B(1)(c)(i), a minister of religion who forms a belief on the basis of information disclosed to the minister in the minister’s capacity as a minister of religion is taken to form the belief in the course of the minister’s work.

… A minister of religion is not excused from criminal responsibility for an offence under section 124B(1) on the grounds that –
a.    the minister’s belief is based on information disclosed to the minister during a religious confession; or
b.    disclosure of the minister’s belief or information on which the belief is based is otherwise contrary to the tenets of the minister’s faith or religion.

The effect of this proposed provision would be that any information disclosed to a priest during the course of Confession which leads the priest to believe that a minor is being sexually abused must be reported to the authorities, irrespective of the wishes of the penitent. Thus abuse or suspected abuse must be reported. Failure to do so will constitute a criminal offence under the proposed amendment. Penalties for breaching this proposed provision range from fines to years in prison.[1]

Given our attention by and large has been focussed on COVID-19 over the last six months, coverage of this proposed legislation has received scant attention, which no doubt would suit the Western Australian State Government very well. The bill is currently the subject of a parliamentary inquiry by the Legislation Committee of the Legislative Council, the state’s upper house. When one applies proper scrutiny to this legislation, what emerges is that it is yet another unwarranted attack on religious freedom. Rather than “putting children first”, if the bill were enacted it would actually be most damaging on those it has been purportedly designed to protect, that is, the survivors of the heinous crime of child sexual abuse.

But first, before I go on, two things must be said. First, no-one who opposes this legislation denies child sexual abuse is one of the most horrible of crimes. Each recounting of such abuse by survivors makes me sick to the stomach, and their quest for justice and healing (the importance of the role of Confession in this regard I will outline later), is nothing short of admirable. Secondly, the Catholic Church, which seems to be the principal institution in the sights of this legislation, is not denying that too little was done to stop child sexual abuse by clergy and religious in the past, or that it was covered up. The Catholic Church has acknowledged the grave errors of the past in dealing with child sexual abuse that caused so much harm to so many innocent people.

However, over the last 20 or more years, the Church has actively reached out to survivors, offering support, as well as putting in place policies and practices to provide the safest environment possible for children. His Eminence, Cardinal George Pell, when he was Archbishop of Melbourne in the 1990s, was the first in Australia to enact a comprehensive redress programme for survivors of abuse at the hands of the clergy, an initiative now replicated across Australia and the world, and not just by the Catholic Church. Thus, as I hope this article will demonstrate, there is no reasonable or logical justification for such a blatant intrusion on religious practice by forcing clergy to violate the law of the Church.

The Confessional Seal and Church lore

Let me explore the last point made in the previous paragraph further. The Seal of Confession is a universal Church law that the Church in Australia does not have the authority to alter. As noted in the Catechism of the Catholic Church (paragraphs [1466], [1467]):

The confessor is not the master of God’s forgiveness, but its servant… Given the delicacy and greatness of this ministry and the respect due to persons, the Church declares that every priest who hears confessions is bound under very severe penalties to keep absolute secrecy regarding the sins that his penitents have confessed to him. He can make no use of knowledge that confession gives him about penitents’ lives. This secret, which admits of no exceptions, is called the “sacramental seal”, because what the penitent has made known to the priest remains “sealed” by the sacrament.

More importantly, the bill is in direct opposition to the Code of Canon Law, the Law of the Catholic Church. As Canon 983 states, explicitly:

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.

Therefore the Bill, if enacted, would require bishops and priests to violate the law of the Universal Church, causing them to be automatically dismissed from their office according to Church law. In other words, any priest who betrays the confidentiality of Confession would thus also be immediately suspended from his ministry as a priest.

No priest, bishop or cardinal can change the law of the Church; only the Pope can do that. Furthermore, the Pope has no authority to change what is understood by the Church to be Divine Law, and this includes the Seal of the Confessional. This is the firm belief of the Catholic faith, but not restricted to the Church of Rome. In fact, this belief is also a fundamental tenet of the faith of Eastern Rite Catholics, (such as the Melkite Church)[2], Eastern Orthodox Churches[3] and the Egyptian Coptic Church[4], to name but a few. To attack this belief, therefore, is an unwarranted infringement on the free practice of religion in Western Australia.

Ignorance of the Church’s position

Like most politicians these days, Mr McGowan and his ministers, in the face of (often warranted) criticism, are apt to respond with, at best, attention-seeking one-liners for their media cheer squads. At worst, the reaction will features insults and patronising responses. Witness the reaction to the High Court challenge to the WA Government’s insistence to keep the state’s borders closed. Irrespective of the important constitutional question to be determined, this challenge and those supporting it have been described by Mr McGowan as a “menace”, a “threat”, and as having “declared war” on Western Australia. He has added the borders will stay closed whether people like it or not.

As one can imagine, no censure of this bill has come from the mainstream media, whose lack of scrutiny of the McGowan Government is akin to a Pravda-like sycophantic support (to quote Quadrant‘s Professor James Allan)[5] . The condemnation has come, not only from the churches but, most significantly, from survivor groups. However, the WA Government’s response to such criticism has been more of the same impertinent condescension. The Minister for Child Protection, Simone McGurk, stated that by not supporting this legislation, the Catholic Archbishop of Perth, Timothy Costelloe, was not “making child safety the number one priority”. As explained above, if Archbishop Costelloe, or any prelate for that matter, were to express support for this legislation, he would immediately be suspended from office and not be able to exercise his ministry as a priest for having violated the Church’s universal law.

The attitude by the minister would seem to be yet another case of virtue signalling, deployed in this instance to demonstrate the commitment of the McGowan government in regard to child protection. While such a statement might be welcomed by the outraged anti-clerical mob, what it actually entails is something far more sinister, because it exploits, for squalid political purposes, the dreadful abomination of child sexual abuse.

What it also demonstrates is that Mr McGowan and his comrades do not understand the position of the Catholic and Orthodox churches in this regard, which, as outlined above, forces clergy to alter a law they do not have the authority to alter. In other words, it is symptomatic of a syndrome identified recently by the editor of The Spectator Australia, Rowan Dean, in many governments these days, that of “authoritarianism meeting ignorance”.[6] Bob Dylan once sang: “don’t criticise what you don’t understand”. Well, Mr McGowan and his ministers would be well served to take that advice because, to use their words, whether they like it or not, this is the law of the Church and it ill-behoves persons in their position to attack it, especially when one other crucial fact is conveniently ignored.

Not the royal commission’s recommendations

The Royal Commission, in fact, recommended mandatory reporting of child sexual abuse for five professions, including psychologists, school counsellors and ministers of religion. However, of these groups, as the minister stated in her Second Reading to the WA Legislative Assembly, only ministers of religion have been singled out for mandatory reporting.[7] Imagine the indignation if  WA’s government announced it would introduce legislation to abolish the professional privilege of psychologists in the name of “child safety” — or that of school counsellors, the majority of whom operate in government schools. The Church is obviously an easier and more convenient target, since attacking the Confessional Seal is not restricted to the WA Labor Party. It follows legislation enacted by the Andrews Labor government in Victoria and the (then) Hodgman Liberal government in Tasmania last year. The Commonwealth also has proposed to legislate this insidious attack on religious freedom in the name of “protecting children”, as have the governments of New South Wales, the Australian Capital Territory, South Australia, Queensland and the Northern Territory.[8] I am not aware that any of this legislation, enacted or proposed, forces psychologists and school counsellors to disclose episodes of child sexual abuse divulged to them in professional consultations.[9]

Further, the rationale for the Bill that it is an implementation of one of the recommendations of the Royal Commission into Child Sexual Abuse is fundamentally flawed. The Royal Commission did not, in fact, recommend that the Seal of the Confessional be removed outright in cases of child sexual abuse. In fact, it offered an opportunity for flexibility and discretion on the part of a priest when confronted with the revelation of child sexual abuse during Confession. The Royal Commission recommended that the Catholic Church in Australia seeks clarification from the Holy See on (emphasis added):

1/ whether information received from a child during the Sacrament of Reconciliation that they had been sexually abused would be covered by the Seal of Confession;

and

2/ whether absolution could and should be withheld if a person confessed to perpetrating child sexual abuse, until they report themselves to civil authorities”. (See: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Volume 16, Religious institutions Book 1, p 77).

The bill in its current form, therefore, in insisting on mandatory reporting in all cases, including Confessions, does not offer clergy therecommended opportunity for flexibility and discretion. It is presently open to any priest —  and in fact, may be considered to be pastorally proper when faced with the confession of any serious crime — to invite the penitent to discuss the matter further outside of the confessional or consider whether to withhold absolution until the admitted miscreant has gone to the police.[10]

Lack of consultation – especially with survivors of child sexual abuse

What is more, the utter lack of consultation in the drafting of this bill would make any dictator proud. Naturally, the Catholic and Orthodox churches were not consulted on this legislation. More significantly and distressingly, neither were survivor groups! In fact, as confirmed by the Minister in the bill’s Second Reading, only a very limited consultation has been conducted, involving a number of Aboriginal organisations and 37 written submissions.[11]

Had the minister bothered to consult with survivor groups, what she would have heard is that, as opposed to “putting child safety first”, the very safety of these children will, in fact, be put at grave risk by this legislation. One need only hear or read the stories of survivors of sexual abuse to understand why this will be the case if the legislation in enacted. For these survivors, the Confessional is the only place a vulnerable child or adult can access, discretely, free of charge and without fear of reprisal, to recount their traumas, thus giving them the chance to heal. Non-Catholics, including Aboriginal people, have used the confessional to this end because it represented for them a desperately needed lifeline they could find nowhere else. Some of these stories of courage can be viewed in the clip below.

The common thread that emerges from the survivors’s accounts, as a result of this legislation, is that they are reliving that same pain (of abuse), only this time it feels like it is politicians who are abusing them. Further, the politicians’ attempt to pervert the only safe, secure and sacred place used by vulnerable children and adults will cripple victims’ journeys of recovery. Key witnesses are being re-traumatised.

Many survivors currently use the Confession as a safe space for counselling, support and healing. This bill, by removing the Seal of Confession, will cruelly deny those survivors an important first step in order to overcome the terrible harm they have endured, thereby further damaging the very people it has been purportedly designed to protect.

The bill will do nothing to stop abuse

Another detail that that appears to have been conveniently ignored by the WA State Government is that paedophiles very rarely confess their sin and crime in Confession. Indeed, all the anecdotal evidence demonstrates that priests have rarely, if ever, had the sin and crime of sexual abuse confessed to them. Criminologists would also attest that the criminal mind of the perpetrator, particularly in these cases, is such that he or she actually and incredibly believes nothing wrong has been done. Paedophiles are unlikely to confess something for which they feel no guilt. Furthermore, it is extremely probable that the forced breaking of the Seal of the Confessional will act, perversely, as a disincentive to paedophiles to confess their sin and crime in the rare cases they may be disposed to so do, thus removing the opportunity to reform such offenders. This point is made, tellingly, by one of the survivors in the video clips embedded above.

Rather than forcing the Church to implement mandatory reporting, which is beyond its power to do, the State Government would be better served to consult and work collaboratively with the Catholic and Orthodox churches to implement and improve practices that are within their power. Along with survivors feeling abandoned and traumatised once more, that is the saddest aspect of this unreasoned and unjustifiable intrusion of the state into religious practice.

Dr Rocco Loiacono is Senior Lecturer at Curtin University Law School

[1] See generally: http://www.perthcatholic.org.au/Our_Archdiocese-Archbishop-Latest_News-2020-Open_Letter_Inquiry_into_the_Children_and_Community_Services_Amendment_Bill_2019.htm.

[2] See the Easter 2019 pastoral letter of the Most Reverend Robert Rabbat, Melkite Greek-Catholic Eparch of Australia and New Zealand https://www.melkite.org.au/pascha-letter.

[3] See generally: https://neoskosmos.com/en/43333/breaking-the-seal-church-priest-confession-abuse-of-children/.

[4] See generally: http://www.copticchurch.net/topics/thecopticchurch/sacraments/3_repentance_confesstion.html.

[5] James Allan ‘One of the most colossal failures of the century’ The Spectator Australia, 8 August 2020, at: https://www.spectator.com.au/2020/07/one-of-the-most-colossal-failures-of-the-century/.

[6] ‘The Bolt Report’, Sky News Australia, 29 July 2020, at: https://www.skynews.com.au/details/_6176189041001.

[7] Second Reading Speech of Ms Simone McGurk, Children and Community Services Amendment Bill 2019, Hansard of the Parliament of Western Australia, at: https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/DB9BEB7FDC8906EE482584CB00175687/$FILE/A40%20S1%2020191128%20p9593b-9596a.pdf (‘Second Reading Speech’).

To quote from the Hansard: “Western Australia’s expansion of the scheme to ministers of religion has been expedited over the other reporter groups that were recommended to become mandated reporters to achieve minimum national consistency.”

[8] See generally: https://cruxnow.com/church-in-oceania/2019/09/australian-states-to-have-priests-report-abuse-disclosed-in-confession/.

[9] Second Reading Speech, above n 7.

[10] See generally: https://cruxnow.com/church-in-oceania/2019/09/australian-states-to-have-priests-report-abuse-disclosed-in-confession/.

[11] Second Reading Speech, above n 7. To quote from the Hansard: “In 2017, the then Department for Child Protection and Family Support reviewed the act on my behalf with the assistance of a review committee and legal working group with external representation. The review received 37 written submissions in response to a consultation paper. During the four-month consultation period, regional consultations were held with Aboriginal community members, service providers and Aboriginal community controlled–organisations.”