Laws Forcing a Breach in the Confessional Seal Are in No One’s Best Interest


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What can a person do when put in an impossible position, when caught between the demands of the state on the one hand and God and his Church on the other?

In some jurisdictions Catholic priests are finding themselves on the horns of this very dilemma. The contested terrain is that most mysterious and distinctive of Catholic sacraments: confession.

Lawmakers and campaigners are increasingly demanding that priests be required to breach the seal of the confessional in cases of sexual abuse. But Catholic lay faithful and clergy alike point out that such a breach in the seal is impossible without far greater damage to the priest, the penitent and the Church as a whole.

The sacrament of penance is the most private of spaces; the penitent confesses sins to a priest who is acting in persona Christi (in the person of Christ). The seal of the confessional is absolute and guaranteed by the succession of multiple interlocking padlocks and tightly worded turnstiles within the Church’s own laws.

For instance, Canon 983 of the 1983 Code of Canon Law says:

“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.”

Further, the penalty for breaching the seal is the most severe in the Church’s armory. Canon 1388 states:

“A confessor who directly violates the sacramental seal incurs a latae sententiae excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.”

And the seal even extends to those who may overhear the confession.

Canon 983 continues:

“The interpreter, if there is one, and all others who in any way have knowledge of sins from confession are also obliged to observe secrecy.”

And Canon 984 provides that “a confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded.”


History and Mystery

As the character in Greek myth who set free from her box all the troubles in the world, Pandora would be the first to admit, anything secretive fascinates humans. It is no surprise, then, that the secrecy of the confessional, which is guarded with such seriousness by the Church, has long excited controversy among the Church’s critics.

Protestant reformers in the 16th century depicted the confessional as a license to sin, in which sins were gabbled off by penitents and automatically absolved by priests.

In a similar way, paranoid French republicans in the 19th century were given to charging that priests manipulated flighty women in the confessional, turning them against their husbands and possibly worse.

But today’s threat to the seal is arguably of a far greater magnitude than that expressed by the anti-clerical polemics of yesteryear and is a direct outcome of the Church’s abuse crisis.

In 2006, claims were advanced by Father Thomas Doyle, a U.S.-based canonist, that an obscure Vatican document, Crimen Sollicitationis, amounted to “an explicit written policy to cover up cases of child sexual abuse by the clergy” and “to punish those who would call attention to these crimes by Churchmen.”

The claim was a strange one, as the document, freely available online in English translation, in fact obliged a penitent who had been propositioned by a priest in the confessional to denounce the offender to a bishop within a month on pain of excommunication.

Father Doyle has since rowed back from his claims, but the linkage of the confessional box and clerical sexual abuse remained in the public mind.

Critics now charge that the seal of the confessional has been used as a pathway to clerical abuse and insist that the seal must be breached in abuse cases as a matter of necessity, so as to protect children and vulnerable adults from harm.

Laws requiring priests to override the confidentiality of the confessional typically come in the form of so-called mandatory-reporting laws. These kinds of laws require specific mandated persons, such as teachers and medical practitioners, to report incidences of suspected child abuse or neglect to the authorities.

The Church counters that breaching the seal would be counterproductive and ultimately pointless. Unrepentant sex abusers are hardly likely to confess their sex crimes, after all. But against the roar of intense emotion, reason has difficulty making itself heard.

The seriousness of the threat to the sacrament can be shown by the juxtaposition of two events: first, the papal summit on child abuse in Rome; and, second, the introduction of a bill to force priests to breach the seal in California. Bill 360 was introduced in the California Senate by Democrat state Sen. Jerry Hill just the day before the summit opened.

Hill said: “The law should apply equally to all professionals who have been designated as mandated reporters of these crimes — with no exceptions, period. The exemption for clergy only protects the abuser and places children at further risk.”

Extreme though it is to Catholics, Bill 360 is the latest in a wave of legislative campaigns around the world to breach the seal.


Criminal Justice Act

In 2012 the Republic of Ireland passed the Criminal Justice (Withholding of Information on Offenses Against Children and Vulnerable Persons) Act, which made it a criminal offense to withhold information on specific offenses from the Garda Siochana (Irish police), with criminal sanctions of up to 14 years’ imprisonment for its breach.

The rationale for such a drastic step, Alan Shatter, then the minister for justice, explained, was the prevention of the kind of child abuse that had been detailed in the Ryan, Murphy and Cloyne reports into clerical abuse.

Shatter said: “It is clear from these revelations and the various published reports that if those who had knowledge in the past of sexual offenses committed against children had informed the Garda, many children who subsequently became the victims of abuse may have been protected from clerical sexual predators.”

He told the Seanad: “There are no defenses in this legislation which would specifically apply to information received in the confessional box.”

For its part, the Church in Ireland has ordered priests to uphold the seal of the confessional — what else could it do? — and thereby garnered yet more bad publicity for itself.

Whether legislation that forces a breach in the seal of the confessional would make any qualitative difference to abuse prevention is a moot point. Leading British abuse lawyer Richard Scorer argued that “by definition” overriding the seal would help prevention. But he concedes that it is not easy to quantify the difference it would make.

Ireland’s mandatory-reporting law is in its infancy, but, so far, no priest has been prosecuted under it.

“I doubt if any priest will break the seal of confession,” said David Quinn, director of the Iona Institute.

The Iona Institute, an Irish think tank, which promotes marriage and religion in society, spoke out against the law on the grounds of religious freedom.


Challenges Down Under

The next country to challenge the Church in the confessional would be Australia, where developments have followed a very similar trajectory to those in Ireland.

As was the case in Ireland, such proposals followed a vast judicial inquiry — a Royal Commission into institutional responses to child sexual abuse. The commission issued its final report and recommendations in December 2017.

It recommended that state and territory governments should include people in religious ministry as mandatory reporters and that “laws concerning mandatory reporting to child-protection authorities should not exempt persons in religious ministry from being required to report knowledge or suspicions formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.”

The commission itself was not without critics of its methodological rigor. Replying to the commission’s finding that 7% of Australian priests were abusive, it was pointed out that this number was based on accusations, falling some way short of a criminal standard of proof. Furthermore, the figure was out of kilter with the authoritative John Jay Report from 2004, which found that approximately 4% of American priests were abusive.

But few critics of the commission were willing to press the point against a background of understandably emotional testimonies from adults about the abuse they experienced in childhood.

Australian states have scrambled into action, with South Australia becoming the first state to pass a law — effective last October — forcing priests to disclose child abuse revealed in confession.


Not So Merry England

Mandatory-reporting laws have been rejected in the U.K. amid opposition from teaching unions. But the ongoing Independent Inquiry Into Child Sexual Abuse (IICSA) could crack the issue back open. Abbot Martin Shipperlee of Ealing Benedictine Abbey resigned Feb. 8, after he told the inquiry that he had not reported an allegation of abuse against the former abbot, Laurence Soper, who was dismissed from the monastery in 2011 and later jailed.

Even worse, a diplomatic row has brewed about the papal nuncio’s alleged refusal to cooperate with the inquiry.

“Literally every session of IICSA proves why mandatory reporting is so necessary,” Richard Scorer tweeted.

Damaging allegations of abuse continue to pile up on the ongoing catastrophic revelations of cover-up. The Church is ill-equipped to defend its position. The price for its failure to protect children and vulnerable adults may yet be paid by individual priests — and by secular assaults on the sanctity of the confessional.

Catherine Lafferty is a journalist and writes from London.