Is the Confessional sacrosanct?

In August 2017 the Archbishop of Melbourne, Denis Hart, said he would risk going to jail rather than report what is said to him in the sacrament of confession, even if what is confessed is related to child sexual abuse. He made those comments in response to recommendations from the Royal Commission relating to the institutional responses to abuse to make the reporting of allegations mandatory, with a failure to report becoming a criminal offence.

Such an approach echoes the views expressed by Cardinal George Pell in 2012 that ‘what’s heard in the confessional stays in the confessional’.

It will be no surprise to learn the law does not subscribe to the same view, with an Amish Bishop in Lancaster County USA, pleading guilty last month to misdemeanour offences (initially being charged with a felony) of failing to report suspected child abuse to authorities, following an alleged confession of sexual abuse in 2012 or 2013.

IICSA published its final report concerning its investigation into the Roman Catholic Church on 10 November. The report considers the seal of the confessional. The sacramental seal is described in the Church’s teachings as:

“the church declares that every priest who hears confessions is bound under very severe penalties to keep absolute secrecy regarding the sins that his penitents have confessed to him. He can make no use of knowledge that confession gives him about penitents’ lives. This secret which admits of no exceptions, is called the ‘sacramental seal’ because what the penitent has made known to the priest remains ‘sealed’ by the sacrament.”

“Breach of the seal leads to ‘automatic’ excommunication.” Monsignor Read described it as “an ancient…. Doctrine.”

However can that ancient doctrine be maintained in today’s world given a number of victims and survivors of abuse have made disclosure of the abuse in confession and some perpetrators in Ireland and Australia have also disclosed their offences during confession?

Witnesses before IICSA had no personal experience of such confessions being made and whilst it seems it may be a rare occurrence, Monsignor Read said if a perpetrator confessed to him, he would:

“make them realise the seriousness of what has happened, that they have an obligation in justice, especially to the victim, but also society in general, to do what they can to remedy that, and that should involve reporting the matter to the police.”

Cardinal Nichols and other witnesses before the Inquiry agreed there was tension between the paramountcy principle (the Children Act 1989 requirement that the child’s welfare is to be the paramount consideration) and confidentiality of disclosure. However, they rejected any notion of a recommendation for mandatory reporting which they said would break the seal of the confessional. 

Whilst the Inquiry acknowledged improvements in the Church’s response to child sexual abuse, and made some recommendations for the Church to do more to embed a culture of safeguarding, (see our earlier blogs on the recommendations in this and the Church of England report) the Inquiry made no specific recommendation relating to the seal of the confessional and mandatory reporting. That is a matter to which the Inquiry is expected to return.

The conviction of the Amish bishop confirms the American constitutional right to the “free exercise of religion” does not trump other obligations. For the Roman Catholic church and other faiths which argue that the seal of the confessional remains sacrosanct, there is likely to be change ahead. It is hoped that in considering change an answer can be found without having to consider Cardinal Nichols’ comment to the Inquiry, when asked how the ‘paramountcy principle’ tension could be resolved that “The history of the Catholic Church has a number of people who have been put to death in defence of the seal of the confession. It might come to that…….”

Written by Jagdeep Hayre, Partner

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