The seal of the confessional and a conflict of duty

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.

Keywords:

• Seal of confession
• conflict of duty
• child abuse
• royal commission
• Australian Law
• Catholic Church

Introduction

This paper presents a case study relating to the seal (or secrecy) of the confessional in the Roman Catholic Church. It will study two different scenarios and their different outcomes and consider some of the theological, legal, canonical and communication issues involved. The first scenario led to a change in the civil law in Australia in favour of maintaining the seal. The second scenario, occurring some thirty years later, led to changes to that law in some jurisdictions, to override the seal of the confessional in situations relating to the sexual abuse of children.

Each scenario touches on the complex question of what precisely is covered by the seal of confession and the duty of the confessor not to betray the penitent nor act in a way that would cause a perception that the seal of confession has been broken.

There were different responses, both politically and in the mass media, to the two scenarios. The responses were influenced by certain preconceptions, stereotypes and misrepresentations of Catholic Church teaching and practice.

The paper concludes with a brief discussion of how the conflict of duty between the demands of the secular civil law, and preserving the seal of confession, might be resolved.

Scenario 1 – The Newcastle Murder

The newspaper headlines were dramatic. The Daily Telegraph (17 August 1988): ‘Murder Case Priest Refuses to Tell All’, and (18 August 1988): ‘Priest Should be “Held in Contempt”’. The Daily Mirror (17 August 1988): ‘Murder Case Witness: Priest Who Refuses to Tell’, and (18 August 1988): ‘Church Slams Law as Priests Risk Jail’.

In the local court in Newcastle (New South Wales, Australia) in committal proceedings in the case R. v Young¹ on 16 and 17 August 1988, a Catholic priest was called as a witness. Mrs Pamela Young had been charged with murdering her husband. She subsequently pleaded guilty to manslaughter and was sentenced to ten years imprisonment. The circumstances apparently involved domestic violence,

The police were questioning the accused at the Lithgow police station and, at her request, called the priest. He had officiated at the funeral of the deceased and was known to the family. It was common ground that he and Mrs Young spent some ten to twenty minutes alone. It was never revealed what she might have said to him, nor whether there was a religious confession.

Counsel for the accused, Mr Kenneth Horler QC, asked questions about what might have been said between them and the priest was reluctant to answer. After legal argument, the magistrate intervened, adjourned the court, and provided the priest an opportunity to seek advice.

When the court resumed the priest read a prepared statement saying he had provided pastoral care. He declined to explain what ‘pastoral care’ meant. Mr Kenneth Horler QC pressed the question. He said he was not asking for any information on the content of what may have been said. He asked, ‘did you take or receive a confession from this lady?’ The priest replied, ‘I refer again to the statement which I have already given this court that I am unable to answer that question’.²

The questions of law for the magistrate were whether the priest was entitled to refuse to answer and whether the priest-penitent privilege existed in the law of New South Wales. Mr Horler QC argued, ‘the better view seems to be that there is no basis in the common law in our secular legal system for a claim of privilege of the kind here asserted in respect of penitential communications’.³ He referred to Cross on Evidence (Cross 1979) as his authority.

Mr Kenneth Horler QC supported his argument by referring to an ancient case of R. v Hay (1860) 2 Foster & Finn 4; 175 ER 933, cited in Cross on Evidence (Cross 1979, 11.35). In this case the witness, a Catholic priest, was asked by counsel regarding an artifact that was relevant to the case, ‘From whom did you receive the watch?’ He declined to answer. His Lordship then intervened, ‘You are not asked at present to disclose anything stated to you in the confessional; you are asked a simple fact – from whom did you receive that watch which you gave to the policeman?’ The witness said, ‘To reply to that question would implicate the person who gave me the watch therefore I cannot answer it…. I should be violating the laws of the Church, as well as the natural laws’. The learned judge pressed the question again, making the point that the witness was not being asked to divulge anything said in the confessional. The witness again declined to answer and was adjudged guilty of contempt and committed to gaol.

In a similar way, the facts in the Newcastle case involved a distinction between the fact of a confession and the content of any confession. For the priest to admit that there was a confession, even without disclosing what was said, would risk betraying the penitent because of inferences that could be drawn.

The magistrate asked the priest if there was dialogue with Mrs Young and he declined to answer that question. This led to discussion about the law relating to contempt of court.

Mr Kenneth Horler, QC commented to the magistrate that the priest had ‘hardened in his misconceived attitude, and misconceived it is in a secular society’.⁴ ‘On express instructions’ he declined to press the magistrate to deal with the priest for contempt of court and reserved his position for the subsequent trial. The magistrate did not take the matter of contempt further and indicated this would be better dealt with in the Supreme Court, nor did he formally rule on the question of the priest-penitent privilege other than to note and affirm the opinion as set out in Cross on Evidence.⁵

Whether the privilege of the confessional existed in English common law was uncertain.⁶ Most legal text writers, prior to this trial, took the view that the privilege no longer existed: (for example, Best 1849; Badeley 1865; Phipson 1922; Hogan 1951; Wigmore 1961; Reese 1963; Stoyles 1967; Kuhlmann 1967–68; Cross 1979; Yellin 1983; Smith 1984). The uncertainty of the historical resolution of the problem led some to argue that it was an open question (Nokes 1950, 98). Halsbury 1976 had conflicting opinions.⁷ The issue has been canvassed in Canada (Doyle 1984; Ioppolo et al. 1988) and United States of America (White 1938; Bush and William 1989; Bevilacqua 1996).

Keith Thompson, having reviewed the texts and original sources in his book Religious Confession Privilege and the Common Law, ‘developed a growing suspicion that several of the early revered text writers had simply quoted one another without independently verifying what the sources actually said’ (Thompson 2011, xxv). He concluded that the privilege continued to exist at common law notwithstanding contrary judicial and academic opinion (2011, 215).

The Young Case received saturation media coverage, leading to a political intervention by Mr John Dowd QC, then the New South Wales Attorney-General. He indicated that he would find a legislative solution (Hansard LA, 13 September 1989, 9990).

There was subsequent discussion in the media about the extent to which the law of evidence should be modified to accommodate such religious beliefs. This newspaper report by John Laws published in the Sunday Telegraph on 21 August 1988 summarised the practical problem:

What an awful quandary – for a priest and for the court. The priest is torn between his civic duty and his religious calling. The court has to decide whether or not his refusal to answer constitutes contempt of that court.

The simple truth is that we live in an increasingly secular age. The layman's respect for church law is eroding. But can’t you imagine the uproar if a priest was jailed for contempt of court for refusing to preach [sic] something he has vowed to uphold. Isn’t it time someone amended the Evidence Act to prevent that situation from arising…. And we haven’t really reached a stage where we want to throw priests in the slammer for their beliefs – or have we?’

After the sentencing of Mrs Young, there was further media comment. An editorial in The Daily Mirror on 3 April 1989 supported new legislation: ‘Mr Dowd’s proposed legislation is welcome because it will remove the risk of conflict and leave priests free to follow the dictates of their religion’.

Consistent with his promise to find a legislative solution, on 13 September 1989 Mr Dowd introduced The Evidence (Religious Confessions) Amendment Bill, to amend the Evidence Act 1898. In the Second Reading Speech, he summarised its intent (Hansard LA, 13 September 1989, 9898):

This Bill will amend the Evidence Act 1898 so as to entitle members of the clergy to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the member of the clergy.

There were two broad grounds for justification. One was pragmatic, as he recognised that irrespective of the law, clergy would not break the confidentiality of the confessional. The second was principled, as he regarded the Bill to be ‘a fundamental adjunct to freedom of religion’.⁸

The legislation had bi-partisan support in both Houses of the New South Wales State Parliament. Numerous members in both the Legislative Assembly and the Legislative Council spoke in favour of the priest-penitent privilege.⁹

Nearly ten years later the Young case was again the subject of media scrutiny. The dilemma facing the priest in the Newcastle court was presented by the media in The Sunday Telegraph on 19 October 1997 with another dramatic headline – ‘Church Faces Crisis of Trust’, in these terms:

In 1988 a chubby-faced bespectacled young priest became trapped between two of the most powerful institutions in the land. Under threat of jail [the priest] made it clear his first obligation was to the Catholic Church ahead of the criminal justice system.

What had changed in the intervening 10 years was significant publicity relating to child sexual abuse revealed during the Royal Commission into the New South Wales Police Service, which produced its final report in 1997.

The public debates included the question of whether information about child sexual abuse disclosed in confession should be revealed. In the face of that controversy the Synod of the Anglican Diocese of Sydney stepped back from insisting on the privilege and proposed to repeal an Ordinance prohibiting disclosure of the contents of a confession.

This issue became more acute another twenty years later during the investigations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

Scenario 2 – the Australian Royal Commission into Institutional Repsonses to Child Sexual Abuse

Following media reports of scandals in religious and other secular institutions involving the sexual abuse of children, the Australian Commonwealth and State governments established a Royal Commission.¹⁰ The Royal Commission into Institutional Responses to Child Sexual Abuse (hereafter cited as Royal Commission) began in November 2012 and ran for five years, with the final hearing on 14 December 2017. It involved 57 case studies and extensive examination of how institutions handled complaints of child sexual abuse. Case Study 50 involved a review of Catholic Church authorities (Royal Commission 2017a).

Among the issues canvassed, connected to the Catholic Church practice of confession, were three types of cases:

1. Cases where victims of sexual abuse referred to the abuse within the confession and it was alleged that the confessor did not take any steps to report what he had been told.

2. Cases where the confessional was the opportunity for grooming a victim and/or where the offending took place.

3. Cases where Catholic priests had allegedly confessed their crimes and no action was taken by the confessor to report them to the authorities.

Cases in the first category raise the question about the legal obligation of a confessor to report what is said and whether, and in what circumstances, this may conflict with the obligation to maintain the seal of confession. This was an issue in both scenarios.

Cases in the second and third categories above will be discussed below in the context of media responses and public perceptions.

Incidentally to the Royal Commission investigations, and involving the first category mentioned above, was the prosecution of the Catholic Archbishop of Adelaide, Archbishop Philip Wilson. This was based on an allegation that in 1976, a 15-year-old altar boy, Peter Creigh, confessed to Father Philip Wilson on two occasions that four years earlier he had been abused by a priest, James Fletcher (Wakatama and Millington 2018).

It was further alleged that the Archbishop failed to report this to the authorities as required by section 316 of the Crimes Act of New South Wales (R v Wilson 2018). His case was subsequently dismissed on appeal but there was significant media coverage and most of it quite negative in its attitude towards the Church.¹¹ The facts of that prosecution did not involve any issue about the seal of confession, since the Archbishop’s position was that he did not remember what was alleged.

The obligation of confessors to report knowledge of child sexual assault was discussed extensively in Case Study 50. The Royal Commission examined a panel comprising five Catholic archbishops. One of the hypothetical situations presented to the archbishops involved the story of the hypothetical ‘Sally’. A panel of canon law experts considered this example earlier in a discussion about what could and could not be disclosed.

Counsel Assisting the Royal Commission, Ms Gail Furness SC, in her opening address for this case study, set the scene (Royal Commission 2017a, Transcript 25017):

MS FURNESS: Father Ian Waters, a leading canon lawyer, is expected to give evidence that not every conversation in a confessional is a celebration of the sacrament and that some use it as a safe place for counselling. Both he and Father O'Loughlin are expected to tell the Royal Commission that the confessional seal applies to the confessing person’s own sins, not those of anyone else.

As the evidence unfolded another witness, Father Laurence McNamara CM, a moral theologian, expressed some reservations and raised the issue of how people would understand the secrecy of the confessional in practice (2017a, Transcript 25108):

FATHER McNAMARA: There’s the issue of the pastoral knock-on effect of some of these distinctions in practice. So I'm a bit uncomfortable – while I accept the intellectual distinctions, I'm not that comfortable in terms of how it's perceived within the community, which sees the inviolability of the seal as being sacrosanct.

Counsel Assisting subsequently presented the case of ‘Sally’ to the five archbishops in these terms (Transcript 26122):

MS FURNESS: Sally comes to confession and confesses having stolen lollies and tells the priest that she is being abused by a person – it might be a priest, it might be a member of the family. Is it the case that what Sally has said about stealing lollies is subject to the seal and therefore can’t be revealed, and what she has said about her own abuse is separate from that and therefore can be revealed?

It became apparent from the responses of the archbishops there was uncertainty and a sharp difference of opinion concerning the correct response.

Archbishop Anthony Fisher OP, Sydney, a practicing lawyer before entering the Dominican Order, replied first (Transcript 26123):

ARCHBISHOP FISHER: When a Catholic comes to a priest to confess, they understand they’re talking to God, and the priest is there to mediate that, to encourage that, to confirm that. But they think their conversation is to God. For a priest to repeat anything that has occurred during that confession would be a very serious breach of trust with them and contrary to our understanding of the sacrament. And I'd say even little children have spiritual rights, if they've come to confession and it all tumbles out, whatever's in their heart, that they know whatever they’ve said, they’ve said to God and it won't be repeated.

He explained how a confessor would deal with such a situation so that there was respect both for the seal of confession and the need to act in the best interests of the child (Transcript 26124):

ARCHBISHOP FISHER: So I’d say my job, then, with a child who has revealed this, is to persuade Sally that she has to tell me outside of confession, she has to tell mum, she has to tell her teacher. ‘How can I help you to bring that about?’ It’s not a choice of either I respect the seal and do nothing, or I don't respect the seal and I go straight to the police. I find a third possibility in terms of persuading her to come with me to mummy or to the teacher or to whoever she will talk to.

He was supported in this view by Archbishop Denis Hart, Melbourne (Transcript 26130).

Archbishop Philip Wilson, Adelaide, and a canon lawyer, accepted the premise that one might distinguish material covered by the seal of confession from other disclosures (Transcript 26125):

ARCHBISHOP WILSON: But since these questions have been asked in the Royal Commission, I’ve been talking to people and doing some study myself, and one of the points that some canonists make is that the seal of confession applies to sins that are confessed. If there’s other information that you’re given that is not a sin, it doesn’t get covered by the seal.

Archbishop Timothy Costelloe SDB, Archbishop of Perth, referred to the opinion given by the canonists, and distanced himself from the view that one could separate material covered by the seal from other material (Transcript 26126–7):

ARCHBISHOP COSTELLOE: I, like all of us, am grappling with this. The opinion that the canonists produced that has been tendered to the Royal Commission about the seal of the confession only covering the specific sins confessed isn’t what I was taught, and so this is a new area for me and I think, in the face of new ideas and new theories, I need to consider it carefully……As I've thought about it, this is the procedure that I would adopt. If, in the end, she said to me, ‘I don’t want you to tell anybody’, my hands would then be tied because of the seal. That would be my approach at the moment.

Archbishop Mark Coleridge, Archbishop of Brisbane, took a different stance as reflected in this exchange (Transcript 26129):

ARCHBISHOP COLERIDGE: I’m just trying to think of it in – yes, I can't think of any reason that might make me hesitate. Certainly not the seal in that particular case. But if I had handled it as a skilled and sensitive pastor working with the child, off the top of my head or in any other way, I can’t think why I wouldn’t go to the authorities.

THE CHAIR: Archbishop, I’m glad you came to that conclusion, because I was going to test you with a proposition: if a schoolteacher is told by a nine-year-old that they’re being abused by their father, uncle, stepfather, would you have any doubt that the schoolteacher is obliged to go to the authorities?

ARCHBISHOP COLERIDGE: Not at all.

THE CHAIR: Well, is there any difference, then?

ARCHBISHOP COLERIDGE: The only difference is the vast sensitivity that does surround the sacrament and the seal that attaches to the sacrament. That casts a somewhat different light. But in the case where it is not the confession of sin, in my own view, the seal doesn’t apply strictly and I would face the same kind of obligation, I think – not identical, but the same kind of obligation as a teacher.

One of the six Commissioners, Robert Fitzgerald, a well-known member of the Catholic Church and at one time president of the New South Wales State Council of the St Vincent de Paul Society, intervened with the following summary of the dilemma (Transcript 26132):

COMMISSIONER FITZGERALD: Could I just ask a question. It’s not going to be resolved today in this panel, and we’ve had various opinions. Isn’t the reality that you have two sacred obligations that are now in conflict? You have the sacred duty to protect children based on scripture, the Church’s teachings and its commitments to civil authorities. And you have an equally sacred commitment to the seal of confession. In a sense, the Church is in a dilemma, a dilemma that it equally wishes to protect children and equally wishes to maintain the seal of confession. From the Commission’s point of view, ultimately it's about recommending what civil requirements should be placed on institutions, religious or otherwise, and whether or not there should or shouldn't be exemptions for such things as the seal of confession. But for the Church itself, it is that twin dilemma that it now has, and it hasn't yet dealt with it. Would that be a correct statement, that it is yet to deal with the dilemma of its own theology, the theology around the child or the Christology of Christ the child and the notion of the sacredness of confession? If I'm correct from what you're saying, that is not a dilemma that has yet been faced and dealt with?

ARCHBISHOP WILSON: You’re quite correct, and you’ve said it better than I was able to say it. That’s exactly the point that I was trying to make, Commissioner. ARCHBISHOP COLERIDGE: If I could just say, too, I think you have given a very succinct summary of the question, the dilemma, that is before us.

The issue of the confessional seal as a barrier to reporting what a victim may have disclosed was discussed in detail in the Criminal Justice report (Royal Commission 2017b, Executive Summary and Parts I-II).

The Final Report (Royal Commission 2017c, Vol. 16 Bk. 2, 872) proposed that the Australian Catholic Bishops Conference (ACBC) refer the matter to the Holy See:

Given the unclear position within the Catholic Church in Australia as to whether the seal of confession applies to a disclosure by a victim that he or she has suffered child sexual abuse, combined with the possibility that priests will not comply with a civil law reporting obligation because they (correctly or incorrectly) assume that the seal precludes them from reporting such disclosures, we consider it important that the ACBC consult with the Holy See to clarify this issue.

In any event the Royal Commission was not sympathetic to allowing priests any exemption from general obligations to report (2017c, Vol. 16 Bk. 2, 872):

However, even if the Holy See’s position is that the seal does cover such disclosures, our recommendation remains that there should be no exemption from civil law or other reporting obligations on this basis.

It had already made a recommendation (Recommendation 7.4) that the confessional should not be exempt from mandatory reporting laws (Volume 16 Book 3 608). This was consistent with its recommendation (Recommendation 35) that the States and Territories introduce laws about reporting offences and that the criminal offence of failure to report should apply in relation to knowledge gained or suspicions that are or should have been formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession (Volume 16 Book 3 620).

The Australian bishops undertook to refer the matter to the Holy See for some guidance. This is the relevant section of the reply:¹²

With its Note on the importance of the internal forum and the inviolability of the sacramental seal, published on 29 June 2019, the Apostolic Penitentiary has furnished useful indications for arriving at a considered response to the questions raised in the present recommendation. It will be recognised at once that the question of the confessional seal is one of great delicacy and that it is related intimately with a most sacred treasure of the Church's life, that is to say, with the sacraments.

The aforementioned Note repeats the constant tradition of the Church with regard to the seal of confession, recalling that: ‘The confessor is never allowed, for any reason whatsoever, “to betray in any way a penitent in words or in any manner” (can. 983, §1), just as “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” (can. 984, §1)’. The Note helpfully clarifies the extent of the seal, which includes: ‘all the sins of both the penitent and others known from the penitent’s confession, both mortal and venial, both occult and public, as manifested with regard to absolution and therefore known to the confessor by virtue of sacramental knowledge’. The Note gives expression to the long-standing and constant teaching of the Church on the inviolability of the sacramental seal, as something demanded by the nature of the sacrament itself and thus as deriving from Divine Law. See for example: Fourth Lateran Ecumenical Council (1215), Cost. 21; Pope Clement VIII, Decr. Ad omnes superiores regulares (1593); Decr. S. Officii (1682); Pope Benedict XIV, Breve Suprema omnium ecclesiarum (1745).

However, even if the priest is bound to scrupulously uphold the seal of the confessional, he certainly may, and indeed in certain cases should, encourage a victim to seek help outside the confessional or, when appropriate, to report an instance of abuse to the authorities.

Since the publication of the recommendations of the Royal Commission, the various State and Territory jurisdictions have responded in different ways and at the time of preparation of this article, in some States, such as New South Wales, the issue is still under consideration.

The law covers three different scenarios. Firstly, there are laws requiring mandatory reporting, by certain people/professions, of suspicion of child abuse, and this may or may not include ministers of religion. Secondly, there is a general law requiring the reporting of criminal conduct. Thirdly, there is a special regime in some States relating to what is known as ‘reportable conduct’ which requires certain people in leadership positions in organisations to notify the civil authorities of behaviour by employees that falls within the prescribed definition.

A complete account of the various amendments to law since the Royal Commission and an analysis of the different circumstances that apply, and the terminology that is used, is outside the scope of this article (see Mathews 2019). From the information available it does not appear that any instances of prosecution of ministers of religion have arisen nor, is it known whether any ministers of religion have faced the conflict of duty this article describes.

The scope of the seal of confession

Both scenarios raise the question of the scope of the seal of confession. In the first scenario it arose from a line of questioning by that sought to distinguish the fact of a confession from the content of the confession. The second scenario involved the hypothetical case of ‘Sally’, a child who confessed to some wrongdoing but in the course of the conversation mentioned that she had been sexually abused.

The questions that arose in the Royal Commission concerning the scope of the seal of confession became the subject of considerable discussion within the Australian church. Archbishop Anthony Fisher (Fisher 2018) published a detailed analysis of the issues in an article in the Australasian Catholic Record. This article was a response to an earlier article by Fr Ian Waters (2017).

Fr Waters took the view (Waters 2017, 333) ‘that the prohibition and excommunication concern only the sacramental confession of the penitent's own sins’. He then offered this conclusion (Waters 2017, 343): ‘he should counsel the child/adult to notify the required civil authority and even offer to accompany or assist the child/adult to make the report or even offer to do this on the child/adult’s behalf. Naturally he should ensure that the child/adult is quite clear that the seal is not involved simply because the child/adult was not confessing his/her own sins in the administration of the sacrament of penance’.

What Fr Waters did not address is the predicament of the priest in the situation where the victim of sexual abuse by another perpetrator explicitly refuses to allow a report to the civil authorities. Where the person is an adult the law might recognise that the priest has a reasonable excuse not to report, but with the proposed changes to the civil law in Australia this may not apply in the case of a child.

Archbishop Fisher, in his reply to Fr Waters’ article (Fisher 2018, 132), ‘offers a different account on the theology, practice and law of the sacrament’. He referred to the case in Baton Rouge, Louisiana, where Rebecca Mayeux claimed that she was aged 14 when she told Fr Jeff Bayhi in confession that she had been fondled by a parishioner. Without admitting there was a confession, both priest and the diocese insisted there was no right, let alone duty, to report what he learned in the sacrament of reconciliation to civil authorities (Fisher 2018, 146).

There is a practical problem in the Waters’ approach. As Archbishop Fisher argues (Fisher 2018, 146):

[W]ere the Church to acquiesce in some ‘exception’ to the seal in such circumstances it would be open to all sorts of claims about what was or wasn't said by both penitents and confessors in confession, whether the particular matters were or were not sins of the penitent and which might rightly be repeated and to whom.

The Holy See, in its response, as set out above, essentially reflected the conclusion of Archbishop Fisher (Fisher 2018, 147):

[…] the confessor may make no use of what he has learned whatsoever let alone repeat it to the civil authorities. But a confessor may well, in such a situation, strongly counsel the young penitent to repeat what he or she has said to a parent, guardian, teacher or to the police or to the priest himself outside the sacrament of reconciliation, with a view to pursuing justice and ensuring the child’s safety going forward.

That Archbishop Fisher’s view is preferable to that of Fr Waters can be understood if one makes a slight revision of the facts of the hypothetical case of ‘Sally’.

Let one assume ‘Sally’ was 15 years of age and mentioned in confession a sexual relationship with her boyfriend also under the legal age of consent. According to the laws of the various Australian States and Territories, both are committing a criminal offence. However, this young person is confessing what she may consider to be a sinful act on her part. At the same time, she is implicating her boyfriend in a criminal act. Without doubt what she says about herself would be covered by the seal of the confession even on the most generous reading of the canonical opinion that sought to split sins and non-sins in the confessional encounter. It is not possible to make a distinction between her ‘sin’ (covered by the seal) and the boyfriend’s ‘crime’ (not covered) and make a report to the authorities without betraying her. Yet the position adopted by the Royal Commission would put this case in the same category as that of the hypothetical ‘Sally’ and reporting to the authorities would be mandatory.

Two other questions arise connected to the content of the confession. The first involves the competence of the penitent to release the confessor from the seal. This has relevance, for example, where the penitent may wish to use the confessor to corroborate remorse. The second is the situation where the revelation in the confession involves evidence of first complaint.

An Instruction on the Seal of Confession was promulgated by the Holy Office as a private instruction to Ordinaries and General Superiors of Religious Orders on 9th June, 1915.¹³ This Instruction was directed to situations where comment might be made on material connected with the confessional even though the penitent was not in any way betrayed:

There are sometimes found ministers of this salutary sacrament who, though they keep silence about anything that might in any way betray the person of the penitent, yet are not ashamed rashly to speak, in private conversation or in public sermons, for the edification of their hearers, as they say, of matters which have been submitted to the powers of the keys in sacramental confession. Now, since in a matter of such gravity and importance not only a perfect and consummated injury but every appearance and suspicion of injury must be studiously avoided, everyone must see how thoroughly such a practice is to be condemned. For, even though it be done without substantial violation of the sacramental secret, it cannot fail to offend the ears of pious listeners and to produce in their hearts uneasiness and diminished confidence – a thing which is surely entirely foreign to the nature of the sacrament […].

It is the opinion of the author of the Canon Law Society of Great Britain commentary on Canon 983 of the 1983 Code that not even the penitent can release the priest from the seal (Canon Law Society of Great Britain and Ireland 1995). This is contradicted by the opinion of Rev. John Roos in his doctoral thesis on the seal of the confessional in considering the 1917 Code (Roos 1960, 64):

[T]he seal’s absolute inviolability does not mean that the penitent cannot release the confessor from the obligation. With the permission of the penitent, the confessor can speak of confessional matters to others. Canon 1757 §3 2° presupposes this fact.

Rev. Bertrand Kurtscheid’s (1927, 291) authoritative work, A History of the Seal of Confession supports this view:

Although the question here at issue was not touched upon at the Lateran Council of 1215 or in any general ecclesiastical law before the Code of Canon Law was published, the majority of canonists and theologians hold the penitent competent to release the confessor from the obligation of the sacramental Seal.

There is a serious risk that any discussion that is linked to the confession could be misinterpreted and bring the sacrament into disrepute. This is the rationale for the Instruction of the Holy Office. The management of perceptions about the possibility of the seal being violated is critical. This was the concern expressed in the evidence of Fr McNamara referred to above. Even if one adopts the Waters’ view that ‘non-sins’ are not covered, reporting such conversation to the authorities is a serious risk to the integrity of the seal.

The ambiguity of what is a sacramental confession was canvassed in the case Morales v. Portuondo (Woods 2002) where there was a revelation by Fr Towle, but the overwhelming weight of evidence supported the contention that there was no sacramental confession.

Media responses

The media responses to the first scenario were generally sympathetic to the plight of the priest who found himself caught between conflicting duties. There was an openness to resolving the conflict by supporting the priest’s commitment to the seal of the confession.

The second scenario played out in a completely different media environment. There had been five years of unrelenting media coverage of the Royal Commission revelations of child sexual abuse within institutions, including within the Catholic Church (Henderson 2017).

The second and third category of cases involving the confessional, mentioned above (grooming and offending within the confessional and confessions by priest offenders) were pivotal in the way in which the media and public reacted. They saw the Church’s defence of the seal of confession as indefensible.

The Royal Commission Final Report referred to evidence that some children had been abused during confession (2017c, Vol. 16 Bk. 3, 372) and it is likely that such appalling evidence may have had an influence on the general approach the Royal Commission took to the confessional.

The public and media opprobrium was directed at two issues. Firstly, there were the reports of offending by priests with lurid details of the most appalling behaviour. Secondly, there was extensive evidence that church authorities had information about offending and had failed to deal adequately with complaints, including failures to engage with the law enforcement authorities to enable the prosecution of offenders. This ‘cover-up’ was the prevailing narrative.

Against that background the suggestion that a priest might have confessed to child sexual abuse and the confessor was then constrained by the seal of the confession was reconstructed as a ‘cover-up’ by the confessor.

Keith Thompson (2017, 99) refers to a particularly notorious case mentioned in the book, The Dark Box. The author, John Cornwell, referred to the 1,500 confessions of child sexual abuse that defrocked priest Michael Joseph McArdle swore in his affidavit that he made to a variety of confessors weekly over thirty years when he was seeking mitigation of his sentence at the Brisbane District Court on October 8, 2003 (R v McArdle 2004).

An example of the media interpretation of that case is this headline from ABC News: ‘Catholic priest ‘confessed 1,500 times to abusing children’, victim says mandatory reporting could have saved him’. The story then went on to quote Archbishop Coleridge of Brisbane who ‘criticised the attempt at reform, saying lifting the confessional seal and enforcing mandatory reporting would do little to save young people’. This comment was set against a response, quoted in the same story, that conflated secrecy and cover-up with abuse:

Queensland’s Transport Minister Mark Bailey tweeted this week over the Archbishop’s stance: ‘I’m deeply disturbed the Brisbane Archbishop opposes new laws requiring priests to report child sexual abuse just like doctors/teachers/nurses’, he wrote.

The secrecy, cover-ups, abuse must stop via stronger laws in Qld backing the royal commission recommendations. (Agius 2020)

The idea of priests using the confessional to assuage their guilt reinforced an attitude in the mind of the public that the confessional was a subterfuge, that it compounded secrecy and cover-up, and facilitated offending, and there should not be any protection given to the seal whatsoever.

This comment is typical of the understanding in the popular press:

The confession box forgiveness gave him basically a clean slate, which allowed him to reoffend. If his crimes had been reported, so many children would have been saved from a lifetime of pain and suffering. (Morris-Marr 2018)

A psychologist employed by the Catholic Church in Australia in its treatment programme Encompass, Dr Gerardine Robinson, gave evidence that there were instances where priests would use the confessional to deal with their guilt (Royal Commission 2017b, Parts III-IV, 203).¹⁴ This reinforced evidence given by an Irish psychologist Marie Keenan, who had interviewed some priests who told her they used the confessional to deal with their guilt (Royal Commission 2017c, Vol. 16 Bk. 3, 481). ¹⁵

The Royal Commission asked the Australian Catholic Bishops Conference to seek advice from the Holy See whether:

If a person confesses during the sacrament of reconciliation to perpetrating child sexual abuse, absolution can and should be withheld until they report themselves to civil authorities. (2017c, Vol. 16 Bk. 1, 77)

The Holy See replied:

Concerning absolution, the confessor must determine that the faithful who confess their sins are truly sorry for them and that they have a purpose of amendment (cfr. CIC, can. 959). Since repentance is, in fact, at the heart of this sacrament, absolution can be withheld only if the confessor concludes that the penitent lacks the necessary contrition (cfr. CIC, can. 980). Absolution then, cannot be made conditional on future actions in the external forum.¹⁶

Since the publication of The Final Report of the Royal Commission a number of the Australian States and Territories have amended the child protection legislation to make it clear that the recommendation of the Royal Commission would be implemented and that there would not be any exception for priests to refuse to disclose to the authorities information that came to their attention through the sacrament of confession. This would apply both to the hypothetical case of a victim who made some disclosure as well as to the disclosure perhaps made by an offender.

Against that backdrop and the narrative of coverup, media coverage has been unsympathetic to any arguments that Catholic Church authorities presented in the various State and Territory parliamentary debates about implementing the Royal Commission recommendations concerning mandatory reporting to include matters revealed in confession.

Surprisingly, the Archbishop of Perth, Timothy Costelloe SDB, in a pastoral letter of 2 July 2020 presented a contrary view by a victim of child abuse (Costelloe 2020). The context was the debate in the Western Australian Parliament and an inquiry into the Children and Community Services Amendment Bill 2019.

James Parker, a child sexual abuse survivor led a survivor group and in a series of videos one young survivor said: ‘One of the safest places I could turn to was my local priest under the Seal of Confession. If I’d thought the priest would ever tell anyone what I shared with him, then I’d never have gone to him. It feels as though politicians are now attacking me when I am the one who was wronged and hurt’ (Bowling 2020; Cramsie 2020).

Resolving the conflict of duty

The case referred to in the first scenario was timely. At a theoretical level, this issue had been considered by the Australian Law Reform Commission during an investigation into the law of evidence only the year before (ALRC (Australian Law Reform Commission) 1987). While the problem of the confidentiality of the confessional had not arisen often, if at all, now there was a high-profile case and intense media and political agitation.

The difficulty of the issue is evident in the way the Australian Law Reform Commission approached the matter. There was a division of opinion in its final report. The learned President Justice Francis Xavier Connor, in a dissenting opinion, agreed with Church submissions that ‘an important question of principle in Church-State relations is involved’. Furthermore he accepted the point that ‘at a time when law reform is being proposed the issue should be dealt with in accordance with proper principles even though it has not hitherto given rise to any problems in practice’ (ALRC (Australian Law Reform Commission) 1987, 207).

In response to the objection that confidential communications between a person and a minister of religion should not be given any special treatment as against other confidential relationships, the President made the point that ‘the answer lies in the special treatment given by the Australian Constitution to the free exercise of religion’, which, he argued, would be hampered if the absolute privilege was not granted (ALRC (Australian Law Reform Commission) 1987, 211).

In the Parliamentary debate connected to the first scenario above, the Hon. Marie Bignold approached the debate from the perspective of civil liberties and cited an article from the Canadian jurisprudence written by Denise Doyle (1984) who had set out three basic arguments in support of legislation giving a priest-penitent privilege (Hansard LC, 21 November 1989, 12832).

Firstly, it was advantageous for society that a person makes a frank admission of wrongdoing and for the religious adviser to promote good, persuade the wrong doer to repent, admonish him and convert him to right.

Secondly the court would be reluctant to stand in opposition to one who was bound by ecclesiastical laws. Placing a priest in an insoluble dilemma whereby he would not comply with the law even at the cost of penalising himself, would achieve nothing and lead to misunderstanding and even loss of respect for the court.

Thirdly, that compelling the use of confidential information received in confession or some other form of religious interview may be tantamount to demanding self-incrimination. The law recognises that the court must prove a suspect guilty, not force him to confess.

The relevance of religious freedom as a justification for making an exception to a general law about mandatory reporting of child sexual abuse or, failing that, justifying disobedience of a law demanding the revelation of a confession goes to the heart of the resolution of the conflict of duty.

Two questions suggest themselves as the proper approach to the resolution of the dilemma. How does Catholic theology understand the obligation to obey civil law and how does it resolve a conflict between that obligation and some other moral duty? Is civil law which requires disclosure a violation of the right to freedom of religion and, therefore, not a just law?

These quotations from the literature give a flavour for the issue:

‘It isn't a question of whether it was legal or illegal. That isn’t enough. The question is, was it morally wrong?’ – Richard Nixon, cited by Smith (1973, 50).

‘Americans are free…to disagree with the law, but not to disobey it. For in a government of laws and not of men, no man, however prominent or powerful, and no mob, however unruly or boisterous, is entitled to defy a court of law’. – John F. Kennedy, in the New York Times, 1 October 1962, cited by MacGuigan (1971, 260).

The moral literature betrays a difference of opinion as to whether there can be real moral dilemmas. James Keenan (1995, 721) in his own assessment of ‘virtue ethics’, allows the possibility that virtues may be distinct and, at times, opposing each other in a dialectical tension. The exploration of that question is outside the scope of this article, but the human experience of a moral dilemma is generally understood and accepted.

The following comment of Chief Justice Harlan Stone is illustrative of how significant the right understanding of the meaning of conscience can be in resolving serious issues of public policy:

Morals and sound policy require that the state should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep is its significance and vital, indeed, is it to the integrity of man’s moral and spiritual nature that nothing short of self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process. (cited by Coleman 1985, 27)

Gerald Coleman (1985, 26) makes this claim:

Since society is pluralistic, and since the state cannot judge the tenets that support conscience claims, the state has the duty to respect any reasonable claim of conscience.

Two points need to be made about this contention. Firstly, the whole issue is left begging by the qualification that the claim of conscience should be ‘reasonable’. After all, this is the very point that needs to be investigated. The approach taken by the Anglican Diocese of Sydney to the way a conflict should be resolved, as outlined above, is illustrative of the fact that there might not be a clear consensus on what is reasonable and what will limit the rights of conscience. Secondly, the assumption, that within the context of pluralist society all points of view given the title of a conscience claim are equally legitimate, needs to be questioned if there is to be any meaning in the notion of truth.

How then does Catholic theology understand the obligation to obey civil law and how does it resolve a conflict between that obligation and some other moral duty?

The issues can be identified by taking as the starting point the following statement from the Catechism of the Catholic Church:

2242. The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel. Refusing obedience to civil authorities, when their demands are contrary to those of an upright conscience, finds its justification in the distinction between serving God and serving the political community. ‘Render therefore to Caesar the things that are Caesar's, and to God the things that are God’s’. (Mt 22:21) ‘We must obey God rather than men’: (Acts 5:29). (Catechism of the Catholic Church 1994, para. 2242)

The resolution of the debate about whether one can righty assess ‘good’ and ‘bad’ law is beyond the scope of this article and has, in any event, been thoroughly argued elsewhere (Fuller 1964).¹⁷ It involves as well a consideration of the notion of natural law and natural rights, and the connection with positive law (Finnis 1980, 148).

John Courtney Murray, who had a significant influence on the developments on freedom of religion that were expressed in Vatican II (Dignitatis Humanae), held the view that the provisions of the First Amendment in the United States of America Constitution ‘are the work of lawyers, not theologians or even of political theorists. They are not true dogma but only good law’ (Murray 1960, 56). There is, however, more at stake here than simply expediency. Tolerance and the liberal democracy protect the inherent dignity of the human person.

The freedom to practice one’s religion is enshrined in Article 18 of the United Nations Universal Declaration of Human Rights.¹⁸ The violation of the seal of the confessional is an intrusion into the rights of a Catholic priest on the practice of his religion as well as the rights of the penitent. This was a point made eloquently, and contrary to the usual flow of public opinion, by a child abuse survivor, Jamie Parker, in his approach to the Western Australian legislation as mentioned above.

The priest faced with the dilemma is well advised to keep foremost in mind the essential element of the sacrament: that the penitent is entering into a relationship with God and that relationship is outside the scope of any human scrutiny. The prudent confessor will use all available means to ensure that the victim of abuse is able to find support in making a complaint to authorities so that steps can be taken to bring an offender to justice and prevent further abuse.

Conclusion

There were two different responses by lawmakers to the two scenarios. In each case priests faced a dilemma – on the one hand an obligation to uphold the seal of the confession and on the other hand a civil law requirement to disclose information. However the different outcomes suggest that the approaches of the lawmakers were pragmatic and reflective of public opinion rather than principled and based on a proper assessment of the competing values of the right of a person to practise their religion and ensuring children are protected and offenders are brought to justice.

The most telling pragmatic argument supporting the preservation of the seal of confession is the reality that if the seal was not protected, offenders would not come and make any disclosure anyway, so there would be futility in passing the legislation. The most telling principled argument, as reflected in the approach of Justice O’Connor from the Australian Law Reform Commission, is the right of citizens to the free exercise and practice of their religion.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

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).

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 1989, 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 (1976, 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 1976, 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 1989, 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 1989, 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 1989, 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 1989, 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 1989, 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 (1960). See also Canon Law Digest 1: 413–14; Waters (2017, 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 2017c, 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/