Church and State: Mandatory Reporting and the Confessional
On the 7th June, in the Australian Capital Territory Legislative Assembly, (and now in South Australia, starting on October 1st), it has been enshrined in law through the introduction of the Ombudsman Amendment Bill 2018 giving the State[s] power to compel ‘minister of religion, religious leader, officers of a religious body, an individual primarily in charge, or any person who provides services for the religious body’ to report ‘Reportable Conduct’ heard in a confession.
Confession, as outlined in the Explanatory Statement , as presented by Andrew Barr MLA, is not just within the Catholic Church.
Many of the religious institutions examined in Royal Commission case studies had an institutional culture that discouraged reporting of child abuse. This culture was often based on traditions and practices that acted as an institution-wide barrier to reporting abuse to an external authority. One of those traditions is the practice of religious confession, which is relevant to the adherents of Judaism, and other Christian churches including the Catholic, Anglican, Orthodox and Lutheran churches.
… In the Australian Uniform Evidence Act jurisdictions – the Commonwealth, Victoria, New South Wales, Tasmania, the Northern Territory, and the Australian Capital Territory – a religious confessions privilege operates so that clergy can refuse to disclose to a court the fact or content of a religious confession, except where the confession was made for a criminal purpose: section 127 Evidence Act 2011.
The importance here is that in some ways, nothing has changed. Yet the ACT Legislative Assembly has extended the ‘Reportable Conduct Scheme’ to include what is heard in Confession as it applies to the safe conduct of children. The reasoning, and the attitude, behind this are laudable. Yes, we must do all in our power to protect the most innocent, the vulnerable, and those without voice in our country.
However, the Bill has brought into being, not just the reporting of criminal behaviour, but the ‘reasonable grounds’ and ‘suspicion’ of ‘reportable’ behaviour, a lesser form of testimonial than ‘something that is criminal’. Andrew Marr Marr MLA in his Explanatory Statement explains what ‘reasonable grounds’ are;
Sections 863B, 863C and 863CA of the Children and Young People Act 2008 enable the head of a designated entity to request or provide reportable conduct information where they are satisfied on reasonable grounds that the information is relevant to the safety, welfare or wellbeing of a child or young person. This reasonable grounds limitation protects and restricts the sharing of information and is necessary to protect an individual’s right to privacy, as it ensures that information can only be obtained and disseminated in the interests of an individual’s safety, welfare or wellbeing.
I am not a lawyer, and yet, it seems to me that the Law is already set in the words above, in the Evidence Act ‘confession made for a criminal purpose’. What has been brought into being with the Ombudsman Amendment Bill in the ACT is that ‘reportable conduct’ becomes a subjective assessment of wrongdoing, or innocence, by the person hearing the confession.
For priests, and other ministers of religion, such reporting strikes at the heart of religious freedom. The ability to go to one’s Pastor, Minister, and priest, and be able to discuss things with them in camera without knowledge of what was discussed made public is fundamental to our religious freedoms. Taking away the confidential and inviolable nature of a ‘confession’ between a penitent and their Minister, strikes at the heart of religion itself. Who would go for spiritual counselling, confession, and aid if what you say can be reported? Who would go to counselling if what they want counselling for is a criminal act? Who would trust a priest to keep under the Seal what they have heard within confession?
Speaking as a Catholic, a priest cannot break the seal for any reason. A priest cannot divulge what is heard in the confessional even to save his own life, to protect his family, to counter a false accusation, or any other reason that people may think of, as reasons to divulge what is heard in a confession. Perhaps a look into the past may help. Historically, there have been priests who have been killed rather than reveal what they heard in the confessional: St. John Nepomucene, St. Mateo Correa Magallanes. Fr. Felipe Císcar Puig, Fr. Fernando Olmedo Reguera.
Confession, or the Sacrament of Penance as it is known to Catholics, is considered to be a central tenet of Catholicism. The Catholic Code of Canon Law states that ‘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: Can. 983 §1’.
In an article for the ABC, titled The Seal Cannot Be Broken: Priestly Identity and the Sacrament of Confession, Fr Richard Umbers, (now Bishop) stated that;
… mandatory reporting of crimes heard in confession would lead to an inevitable clash of Church against State. If, God forbid, a priest should ever be placed in the dock and inquiry made as to another person’s confession, the faithful priest will have no recourse but to be found in contempt of the very court he strives to uphold. Indeed, we have already seen this play out in the United States when a certain Father Kohlmann was asked to testify about a thief whom he had directed to restore stolen goods. The Protestant judge in the matter of People vs. Phillips (1813) described the dilemma as follows:
“If he tells the truth, he violates his ecclesiastical oath; if he prevaricates, he violates his judicial oath. Whether he lies or whether he testifies the truth, he is wicked, and it is impossible for him to act without acting against the laws of rectitude and the light of conscience.”
Of course, when confessions were made anonymously, in a confessional, behind a screen and curtain, all of the above would be a moot point. It is early days yet, and much has to be worked out between the Churches, and the States, on what is entailed, in the widening of the Reportable Conduct Scheme.
It is never easy being a Christian, and trying to follow the will of God. However, in the end, we must all come to the realisation of Who is in charge.
Fr. Ken Clark is a priest of the Personal Ordinariate of Our Lady of the Southern Cross. The personal ordinariate enables Anglicans to enter into full communion with the Pope while preserving elements of their distinctive Anglican spiritual and liturgical heritage. Fr. Ken was ordained in the Sale Cathedral, by Bp Christopher Prowse on the 19th October 2013.