Religious freedom, the confessional and the Royal Commission

There may be a way to get around religious freedom concerns, Alex Deagon writes.

On 14 August 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse released an interim report containing 85 recommendations aimed at reforming the criminal justice system to provide a fairer response to victims.

Among these recommendations was making failure to report child sexual abuse in institutions a criminal offence. The recommendation extends to information given in religious confessions, arguing that there should be “no exemption, excuse, protection or privilege from the offence granted to clergy for failing to report”. In the Commission’s view, “clergy should not be able to refuse to report because the information was received during confession”. The recommendation drew a strong response from clergy, with many saying the privileged nature of confession should be protected as a matter of religious freedom.

In one sense, this is pretty simple. Even the most ardent supporters of religious freedom acknowledge religious freedom has limits. We must, for example, restrict religious rites which involve ritualistic human sacrifice. It seems outrageous that a child abuser can confess to a priest to obtain forgiveness without any legal repercussions. There is a compelling public interest, not to mention a moral obligation, to protect vulnerable victims of sexual abuse, especially children.

It is also true that a law compelling clergy to disclose what they hear in confession directly restricts their religious freedom by not allowing them to honour what they believe to be the sacred, private nature of the confessional as direct communion with God. According to the Catholic Catechism, the act of confession is an intrinsically private communion between God and the sinner, with the priest as mediator. The confession of sin to the priest allows the priest to exercise delegated divine power to forgive the sin on the condition of penance (acts demonstrating contrition and a change of heart).

More on this: Blurring the lines between church and state

For those of us who disagree with this position the objection might seem fairly thin, but as our own High Court has noted, ‘[f]reedom of religion, the paradigm freedom of conscience, is of the essence of a free society’.

There is great danger in allowing the state to abolish particular fundamental freedoms where it is deemed to be in the “public interest”. It opens the way for the state to categorise any freedom, religious or not, as “against public interest” — giving them full scope to restrict it. Part of living in a free, pluralistic, religiously diverse democracy is respecting the religious freedom of others even if we don’t necessarily agree with that freedom or that religion, and even if that religion is unpopular or inconsistent with prevailing social values. Freedom of religion is also protected as a human right under Article 18 of the International Covenant on Civil and Political Rights.

If implemented, this recommendation might even be unconstitutional. The confessional seal and priestly privilege is central to Catholic doctrine. A Commonwealth law compelling clergy to violate the seal is likely to breach Section 116 of the Australian Constitution, which provides that “The Commonwealth shall not make any law for…prohibiting the free exercise of any religion”.

Despite all this, leaving things as they are is clearly not satisfactory. The Commission received information indicating perpetrators of child sexual abuse in religious settings went on reoffending and seeking forgiveness.

This is intolerable, and as many clergy would no doubt acknowledge, a crass abuse of the confessional. So we need some kind of policy in this area which protects children, ensures those who commit such heinous acts do not go unpunished and retains religious freedom as much as possible. One option is to make disclosure of criminal offences to authorities one of the conditions of absolution, part of “penance”. This has support from clergy, removing complications regarding religious freedom.

So if a person came and confessed a child sexual offence to seek forgiveness, the person would be required to disclose that offence before forgiveness could be provided.

Maybe this might stop people from confessing and seeking absolution, meaning the crime would not be exposed. But exactly the same outcome would result from forcing priests to disclose what they hear during confession. So the better solution is to make disclosure to authorities by the confessor part of the condition for absolution and have practicing Catholics committing these crimes face the earthly consequences of their actions. This would enable exposure of these terrible acts and protect the religious freedom of clergy by not compelling them to violate the confessional seal.