The sanctity of the criminal confession

The Gillard Government’s move to launch a Royal Commission into institutional responses to child sexual abuse has been met with overwhelming congratulation. However in the weeks since, the Commission has been clouded by the much battled and loaded question of whether Catholic priests have the right to confessional silence (Julia Gillard has called this a ‘sin of omission’).

While the Royal Commission is not a criminal investigation, in the wider scheme of things it seeks to better enable institutions to prevent and respond to child sexual abuse. Of the Commission’s listed objectives, ‘identifying impediments within institutions and organisations to the proper notification, investigation and prevention of child sexual abuse’ has indeed struck a chord with the Catholic Church and its followers. Under this recommendation, confessions of child sexual abuse by the penitent would have to be reported to the police. At present, a priest’s ‘confessional seal’ is unbreakable: the inviolable confidentiality exercised by the priest in the name of God goes hand in hand with the religious absolution granted to ‘sinners’ in the confessional box. This right is guaranteed by freedom of religious belief as promised in the Australian Constitution.

At the heart of this discussion lies a choice that must be made between the conflicting human rights in this situation: the right of the victim to better protection from sexual abuse, and the right of the priest to his fundamental religious beliefs.

Voices in politics and media have been quick to turn the Catholic Church on its head, with Independent Nick Xenophon slamming the confessional seal as ‘a mediaeval law that needs to change in the 21st century’. It’s easy to see how easy it is to condemn a religious practice in a secular, politicised environment, especially when there are factors such as horrific child crime involved – but that’s because religion is one of the biggest dividers known to man. It is almost impossible for the secular to understand the motivations and fears of those who are deeply faithful: breaking the confessional seal means excommunication for priests, that is, complete exclusion and exile from the Catholic Church – the priest’s institutional connection to God. And even if you don’t believe in that kind of stuff, it can be dangerous to forcibly take it away from other people, with unintended consequences.

Sarah Joseph from the Castan Centre for Human Rights Law at Monash University reminds us that these religious ‘rights cannot be simply dismissed as irrelevant, out-of-date, or irrational. Notions of freedom of religious would have little meaning if they only apply to manifestations of rational beliefs shared by the majority: the very nature of religion is to buy into leaps of faith beyond the objectively provable. The human right to do that is an important one.’

While debating this issue, it’s important to remember that everyone in society wants the prevention of child sexual abuse (except for the perpetrators). It is useless to think that members of the Catholic Church belittle child abuse because they resist these laws. Rather, I imagine that it is because that they believe that for criminals who confess, the availability of religious absolution given by God matters more than penal justice given by men.

But does this amount to one institution selectively isolating itself from common law? Absolutely. The law is written by and for everyone: to challenge its universality is to challenge the legitimacy of the entire judicial system and the original social contract that binds us to it. Prison exists as a deterrent for crime and therefore helps prevent future crimes from being committed. So theoretically, priests should be subjected to the same statutory duties as say, teachers or therapists who hear of crime (but not lawyers or journalists yet, it seems).

But we aren’t working with theories here. We’re here to work with what works. And rational voices emerging out of the cloaked stigma of the confessional box are suggesting that criminal confessions are better than nothing at all. To take a crime to a priest requires a modicum of remorse and conscience. If a priest is able to take advantage of this to persuade the paedophile to take up treatment or turn himself in, then the outcome is better than no criminal confession at all, is it not?

If, on the other hand priests are forced to report all confessions of this nature, and it is unclear whether or not the identity of the paedophile or victim would be known, it will dissuade other paedophiles from confessing in the future, beyond certainty.

Says NSW auxiliary bishop Geoffrey Robinson of a treatment centre run by the Catholic Church, ‘If you ask me whether the number of new offences will be significantly less if 100 offenders receive serious [religious] treatment, then yes, I can give that guarantee.

This is a question that society must face. Do we wish to adopt only a single solution of punishment for all cases of sexual abuse? Or do we wish treatment as another option? If we can have both, so much the better, but on many occasions that is not possible. Sometimes we have to choose between punishment and prevention.

In gaining information on one single client that may or may not have been useful in securing a conviction, the price to be paid would have been that no offenders in the future would receive any treatment.’

Whether or not to grant absolution is up to the religious discretion of the priest, but Bishop Robinson stresses that absolution is conditional on a ‘firm purpose of amendment’ given by the penitent, that is, the intention not to offend again. But how can a priest have the confidence to as such? If every priest can ask for ‘serious and concrete practical steps to ensure that [he] would not offend again’, such as seeking out treatment, this could go a long way in preventing further abuse – albeit in an unconventional way that circumvents the legal system in place. But as I said, it’s better than nothing.

Satellite issues that have been raised such as the albatross of Catholic paedophile priests (5-7 percent of priests in Victoria are estimated to have sexually abused children) are irrelevant in discussing the sanctity of the confessional. Paedophile priests simply not go to confession. Bishop Robinson puts this down to the ‘distorted thinking’ of these priests, in that ‘they have convinced themselves that what they are doing is not wrong.’ Another disincentive to confess is the fear of a harsh absolution if identified as a priest.

All things considered, there simply seems to be disagreement on how prevention of child sexual abuse ought to be achieved. This is a moral challenge that we must talk about and address openly and honestly.

Forcing priests to break the confessional seal for the sake of extracting tenuously useful investigative information will dismantle the religious faith of the Catholic institution, and avoids the problem of preventing child sexual abuse in the first place. This is us scrambling for, but failing to focus on the right enemy.

Further reading:

The Age Full Coverage

PM Media Release

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