Last week, the Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Royal Commission’) made a recommendation, that the “seal of the confessional” within the Catholic Church no longer receive legal privilege where the matter confessed is related to the sexual abuse of a child.

The Royal Commission’s recommendation proposes to extend the same mandatory reporting of child sexual abuse requirements to clergy that now cover professionals who deal with children, such as doctors, psychologists and psychiatrists, youth workers, and so on.

There is no doubt the recommendation has the potential to polarise.

What the Commission said

According to the Commission’s report: there should be “no excuse, protection nor privilege”for priests who fail to alert police because the information was received in confession.”

“We are satisfied that confession is a forum where Catholic children have disclosed their sexual abuse and where clergy have disclosed their abusive behaviour in order to deal with their own guilt,” the report said.

The report went on to say that the Commission had heard of cases in religious settings where perpetrators who made a religious confession went on to re-offend.

The report says: “there should also be ‘no excuse, protection nor privilege’ for priests who fail to alert police because the information was received in confession.”

The backlash

Understandably, the recommendation has provoked an uproar, with the Archbishop of Melbourne, Denis Hart, declaring that he would be prepared to go to jail rather than break his vows to keep confessions confidential.

Another prominent priest, Fr. Frank Brennan told the ABC that: “The question for me would be whether or not such a law, in enacted, would actually protect children?”

He argued whether removing the seal of confessional would make it any more likely that someone would come forward to confess child sexual abuse? If the entitlement to anonymity was removed, it would be “almost inconceivable” that anyone who had offended would confess anything, he said.

“Take away the seal and you will take away the one slim, slim possibility that maybe someone may present and confess.”

The case for removal of special treatment

While it is important to recognise and respect the long standing traditions and importance of the confessional within the Catholic Church it is important also to consider the problem with the confidentiality of the confessional. That is, that it provides perpetrators with a forum in which ‘absolve’ themselves of the sin, without being held to account under the criminal laws that exist.

As the Commission also noted, it was not uncommon for predatory priests to confess in private, but then go on and continue to re-offend. It the offence had been reported by a priest, the offender would have been prosecuted and therefore have greatly lessened the possibly of reoffending.

Perhaps the most important consideration is that the existing legal situation puts the Catholic Church’s cannon law above Australian civil law. It allows a privilege to the Catholic faith that is not afforded to any other religions.

Allowing a subsection of society (the Catholic Church) to create its own laws sets a dangerous precedent.

The arguments made by senior figure heads of the church that laws such as these are not easily policed are valid. However, the laws would require clergy to make an active decision to break the law and the failure by a priest to disclose a child sexual offence may still be revealed  in the course of an eventual prosecution of the offender, or indeed the disclosure of the abuse by the survivor.

Enacting a law of this nature would be a declaration that we place the protection of children against sexual abuse above the claims to privilege of any group in society, including religious groups.