MELBOURNE, Australia — A far-reaching national inquiry into institutional child sex abuse in the Church in Australia is fueling debate on whether the law should be changed to force priests to divulge information received in the confessional.
The ongoing Royal Commission into Institutional Responses to Child Sexual Abuse has been examining what role, if any, the seal of confession played in the cover-up of child sex abuse within the Church, as well as issues such as celibacy, priest selection and Church governance.
The scrutiny of the sacrament comes after the commission sent shockwaves throughout the Church and Australian society last month by revealing that 7% of priests who worked between 1950 and 2009 had been accused of child sex crimes.
Since the royal commission’s establishment, politicians, including former Prime Minister Julia Gillard, have argued that priests should have to report information they receive about child sex abuse, even if it means breaking the confessional seal, considered inviolable under canon law.
“It’s not good enough for people to engage in sin of omission and not act when a child is at risk,” Gillard said shortly after announcing the inquiry in 2012.
The two main political parties in western Australia pledged in March to consider new mandatory reporting laws for clergy during their campaigns for the state’s most recent election.
At present, federal legislation exempts confessional evidence from the general evidence rules that apply in court. Mandatory-reporting laws, which are on the books in each of Australia’s seven states and territories, also exclude information heard during confession.
In the face of mounting pressure for change, Church figures have described the confessional-seal debate as a red herring. Although the royal commission has reported on two cases of a sexually abusive priest receiving absolution, prominent clergy have insisted that such confessions are exceedingly rare.
Jesuit Father Frank Brennan, who has publicly said he would go to jail to defend the seal if necessary, told the Register he had never once heard a confession of child sex abuse.
“In 31 years, no pedophile has ever come to confess their sins to me, and I don’t expect they will,” Father Brennan said. “That’s why I say it’s a red herring. I don’t think taking away the seal will save one child.”
In fact, Father Brennan believes it could do children even more harm. Without the guarantee of confidentially, he argues, child abusers would be even less likely to seek absolution, denying a priest the opportunity to try to convince the offender to turn himself in.
“If you take away the seal, there’s no way you can argue that would increase the chances of a pedophile confessing to a priest,” Father Brennan said.
Due to finish its work in December, the royal commission has yet to make recommendations on changing the law. In 2012, a similar inquiry in the state of Victoria advised information heard in the confessional should be exempt from mandatory-reporting legislation.
The discussion of the seal and law, however, has been complicated by differences of opinion and confusion within the Church itself. While Church figures agree that confessed sins can never be divulged, disagreement has emerged about whether all information heard in the confessional is confidential.
Last month, five of Australia’s seven archbishops — representing Sydney, Melbourne, Brisbane, Perth and Adelaide — offered contrasting views on the question during an appearance at the royal commission.
Archbishop Anthony Fisher of Sydney and Archbishop Denis Hart of Melbourne both told the inquiry that anything heard in the confessional — including, for example, a child’s account of his own abuse — must be considered confidential.
But Archbishop Philip Wilson of Adelaide suggested that the seal only applied to sins themselves — a view that has been echoed by some other prominent clergy.
“If there’s other information that you’re given that is not a sin, it doesn’t get covered by the seal,” said Archbishop Wilson.
Francis Sullivan, chief executive of the Truth, Justice and Healing Council, which is leading the Church’s response to the royal commission, said the leadership needs to do a better job of explaining the sacrament to the public.
“The debate in Australia amongst Church leaders, in a sense the confusion among the Church leaders in Australia, is that some say that all the information that is ever passed within the actual boundaries of the confessional — all that information — is sacrosanct,” said Sullivan. “Whereas most scholars would tell you it only actually applies to the confessing of the sin.”
Sullivan acknowledges that the Church’s defense of the seal has become unpopular with the public, but believes much opposition could be overcome if it was made clear that some information shared by abused children could be passed onto the authorities.
“If that distinction can be made and understood, then I think a lot of the community would say, ‘That’s right, you know,’” Sullivan said. “If a kid is coming forward and saying that it’s happening, then there’s no reason why the priest shouldn’t be going forward to the police about that.”
Canon and Civil Law
According to the Code of Canon Law, “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” (983).
“Any lay members who overhear a confession (example: a translator) are likewise bound by the seal” (983).
“Priests may not reveal what they have learned during confession to anyone, even under the threat of their own death or that of others. For a priest to break confidentiality would lead to a latae sententiae (automatic) excommunication, the lifting of which is reserved to the Holy See — in fact, to the Pope himself” (1388).
Asked about the clarity of Church law on the seal of confession, J.D. Flynn, canon lawyer and special assistant to Bishop James Conley of Lincoln, Nebraska, said the scholarship and cases he has seen on the matter confirm that everything that happens in confession is bound by the seal.
“The law says that you can’t reveal in words or deeds anything about what happens in the sacrament of penance, including the identity of the penitent or any factors related to the matters discussed,” he said, adding, “In fact, there is a separate canon that says the priest can’t use knowledge gained in the confessional in any other ministry.
“Anything the priest learns in confession, he is bound to keep in confession.”
If a victim of abuse comes forward in the confessional or a crime is confessed, Flynn explained, the ordinary practice is to ask the penitent to speak with the priest about that particular situation after the confession has ended.
The issue of the application of the seal of confession in cases involving sexual abuse also was the subject of a recent U.S. legal case in Louisiana, in which a woman alleged that she had told Father Jeff Bayhi of the Diocese of Baton Rouge in the confessional about sexual abuse she said she had suffered at the hands of an older parishioner when she was a teenager.
The woman, who was the plaintiff in a civil trial related to the abuse allegation, had sought to compel the priest to break the seal of confession and testify in the civil trial, on the grounds that he was obliged as a mandated reporter under state law to report sexual-abuse allegations.
The Louisiana Supreme Court ruled in 2014 that the seal of the confession did not automatically excuse priests from the state’s mandatory-reporting law and instructed that a hearing be held to determine whether Father Bayhi was obliged to testify in the civil trial. But a state judge subsequently ruled in February 2016 that the priest was not required to break the seal of confession.
“A foundational doctrine of the Roman Catholic Church for thousands of years mandates that the seal of confession is absolute and inviolable,” the Diocese of Lafayette asserted in a statement released after the earlier Louisiana Supreme Court decision that Father Bayhi might not be protected by the seal of confession from disclosing what he had heard. “Pursuant to his oath to the Church, a priest is compelled never to break that seal. Neither is a priest allowed to admit that someone went to confession to him. If necessary, the priest would have to suffer a finding of contempt in a civil court and suffer imprisonment rather than violate his sacred duty and violate the seal of confession and his duty to the penitent.”
John Power writes from Melbourne, Australia.
Register staff contributed to this report.