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Abstract
This paper considers some of the theological, legal, canonical and communication issues involved in the relationship between the civil law in Australia and Catholic Church law and practice regarding the seal of the confessional. It does so by comparing two different real life cases and their different outcomes. The different responses to the two scenarios, both politically and in the mass media, were influenced by certain preconceptions, stereotypes and misrepresentations of the Catholic Church's teaching and practice. The Australian Royal Commission into Institutional Responses to Child Sexual Abuse raised the question of what precisely is covered by the seal of confession. It recommended the Australian Catholic Bishops Conference to approach the Holy See for clarification. The Royal Commission recommended that the Australian States change the law to remove the seal of confession as an exception to mandatory reporting of child sexual abuse. The Holy See response did not accept that proposition. The study concludes with a brief discussion of how the conflict of duty between the demands of the secular civil law on the one hand, and preserving the seal of confession on the other, might be resolved.
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No potential conflict of interest was reported by the author(s).
Notes
1 The case was widely reported in the press and electronic media, and the facts were cited by the Hon B. H. Vaughan in the New South Wales Parliament during debate on the Evidence (Religious Confessions) Amendment Bill (NSW) of 1989, cf. New South.Wales Parliamentary Debates Legislative Council (Hansard LC, 21 November Citation1989, 12829). See also the Sunday Telegraph, 2 April 1989, which reported the details of the subsequent Supreme Court hearing and the sentencing of Mrs Young.
2 Newcastle Local Court Transcript R. v. Young 17 August 1988, 2.
3 Newcastle Local Court Transcript R. v. Young 16 August 1988, 52.
4 Newcastle Local Court Transcript R. v. Young 17 August 1988, 6.
5 Newcastle Local Court Transcript R. v. Young 17 August 1988, 7–8.
6 In some Australian State jurisdictions from the early 20th century, there have been specific statutory provisions protecting the priest-penitent privilege. See Victoria, Evidence Act 1890 s.55; Tasmania Evidence Act 1910 s. 96(1); Northern Territory Evidence Act 1939 s. 12(1) also in New Zealand, Evidence Act 1908 s.8.
7 Halsbury (Citation1976, Vol. 17, para 237) deals with privileged communication and makes the statement: ‘Confidential communications other than those passing between a client and his legal adviser are not privileged from disclosure.’ However, there is a more guarded statement of the law in the article on Ecclesiastical Law (Halsbury Citation1976, Vol 17, para 1047): ‘The obligation of a priest to observe strict secrecy concerning what is communicated to him in the course of a private confession is enjoined by ecclesiastical authority; but whether the courts would recognise such a communication as belonging to the category of privileged communications remains uncertain (emphasis added).’
8 He said, ‘Most clergy will not testify about confessional communications, regardless of whether there is a statutory privilege…. People take for granted having the complete right to talk to their ministers penitentially in confidence – whether the law says they can or not (Hansard LA, 13 September Citation1989, 9900).
9 The shadow Attorney-General, Mr Paul Whelan took the view that irrespective of what might happen in the Parliament, clergy would not betray the seal of confession (Hansard LA, 16 November Citation1989, 12757). Mr Harrison (Kiama) said that he ‘could not be more complimentary of the legislation or of the Attorney-General for its introduction’ (Hansard LA, 16 November Citation1989, 12759). The Hon. Bryan Vaughan made reference to the tradition of St. Nepomucene and his martyrdom by drowning in the river Danube at the hands of King Wenceslaus the King of Bohemia (Hansard LC, 21 November Citation1989, 12809). The Hon. Franca Arena referred to her experience in Italy where she said, ‘this legislation would have been unnecessary’. She noted that ‘in our multicultural society we should learn to respect other people’s feelings and customs’ (Hansard LC, 21 November Citation1989, 12806).
10 This is a form of administrative inquiry with extensive powers to call witnesses and investigate alleged wrongdoing.
11 For an example of media coverage, see the article “Former Catholic archbishop Philip Wilson wins appeal, has conviction overturned” in The Sydney Morning Herald, 6 December 2018. https://www.smh.com.au/national/nsw/former-catholic-archbishop-philip-wilson-wins-appeal-has-conviction-overturned-20181206-p50knr.html.
12 Enclosure with Letter N. 484.110, of 26 February 2020 provided by the Australian Catholic Bishops Conference to the author. As of 1 February 2021, it can be found online in pdf here: https://www.catholic.org.au/images/Observations_of_the_Holy_See_to_the_Recommendations_of_the_Royal_Commission.pdf
13 This Instruction was never published in Acta but appeared in Razon y Fe, Vol 48 (1917), 89; The translation appears in Bouscaren, The Canon Law Digest I, 413–414 and is an appendix to Roos (Citation1960). See also Canon Law Digest 1: 413–14; Waters (Citation2017, 337); See also Note on the importance of the internal forum and the inviolability of the sacramental seal, published on 29 June 2019, by the Apostolic Penitentiary on the Vatican website: http://www.vatican.va/roman_curia/tribunals/apost_penit/documents/rc_trib_appen_pro_20190629_forointerno_en.html
14 ‘Dr Robinson told us that some of the perpetrators she assessed ‘would quite blithely say, “Yes, every time I offended, I went to confession”’.
15 ‘We also received evidence that perpetrators who confessed to sexually abusing children went on to abuse further children and to seek forgiveness again.’ In another place, The Final Report also contained this comment from a priest: ‘Not confronted adequately we experienced only a short duration of guilt and no sense of responsibility for how we hurt others, only the alleviation of our own guilt and shame’ (Royal Commission Citation2017c, Vol. 16 Bk. 2, 860).
16 See note 12.
17 Especially the chapter “A Reply to Critics” p. 187 and following, and the references cited therein.
18 Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. On the website of the U.N. https://www.un.org/en/universal-declaration-human-rights/
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Brian Lucas
Fr Brian Lucas is a priest of the Archdiocese of Sydney, Australia. He is the National Director of Catholic Mission (The Pontifical Mission Societies). He has post graduate qualifications in law, theology, general studies and religious education. He is a graduate of the Australian Institute of Company Directors and a Churchill Fellow (NSW 2002).