Circumscribing the seal of the confessional
In November 2016, I was asked about the seal of the confessional and told the Australian: 'If a law is introduced to say that a priest should reveal a confession, I'm one of those priests who will disobey the law.' On 3 December 2016, I had the opportunity to explain myself, writing in the Weekend Australian: 'A priest should never be required to disclose anything heard under the seal of the confessional.
'The state has the same right to regulate matters for a priest outside the confessional as to regulate matters for all other citizens outside the confessional. Not one child will be saved by abolishing the seal of the confessional. With the seal intact, the occasional paedophile might find a listening ear to assist with the decision to turn himself in.'
This brought me to the attention of Justice Peter McClellan's royal commission. He called me to appear before his commissioners on 9 February 2017 alongside the respected canon lawyer Fr Ian Waters who explained that the seal of the confessional covered the sins of the penitent, but not other matters. I agreed with Fr Waters.
I gave the example of a little girl Sally who comes to confession and tells me that she stole the jelly beans and that her stepfather did something nasty to her. I said that I could never reveal or act upon Sally's confession of having stolen the jelly beans, but I could act on Sally's assertion about her stepfather in the same way as I could if the assertion were made outside the confessional. It would be a matter of pastoral prudence and care for Sally and her family.
There was a difference of opinion on the panel, with the one bishop in attendance, Bishop Terence Curtin, who was chair of the Bishops' Commission for Doctrine and Morals, varying his testimony to agree more with the position put by Fr Waters. I put a suggestion:
FATHER BRENNAN: Could I suggest the appropriate course would be to have Bishop Terry's committee of the Bishops Conference put in a particular submission to you articulating what is the received theological view of the Catholic Church in Australia on the seal of the confessional?
BISHOP CURTIN: Yes.
THE CHAIR: Will we get one view?
BISHOP CURTIN: Yes, you would.
FATHER BRENNAN: That's the advantage of a hierarchy, your Honour.
A panel of the most senior archbishops was then to appear before the commission on 24 February 2017. Like many, I expected that by then the bishops would have worked out a clear united position on the limits of the seal. They did not; they publicly disagreed. I then urged our bishops to have their Commission for Doctrine and Morals (perhaps in consultation with the Bishops Commission for Canon Law) provide the royal commission with a timely, succinct statement on the limits of the seal. They did not.
"They had no intention of providing the royal commission with a clear statement on the limits of the seal of the confessional. They were simply unable to do so. "
The bishops then discussed the matter at their regular plenary assembly in May 2017. They resolved nothing but issued a breathtaking media release: 'The discussion was pastoral rather than tactical ... The bishops were not simply responding to the royal commission but pursuing a broader pastoral discussion about how to help and support our priests and our people to reassure them about the practical application of the Sacrament of Penance at times when the seal of the confessional comes up.'
They had no intention of providing the royal commission with a clear statement on the limits of the seal of the confessional. They were simply unable to do so. They met again at their next plenary meeting in November 2017 and once again left the matter unresolved. One of them, Archbishop Philip Wilson, decided to seek formal guidance from Rome. By the time the royal commission reported to government in December 2017, neither our bishops nor Rome had provided any clarification on the limits of the seal of the confessional. They still haven't.
The royal commission was remarkably constrained in recommending that 'the Australian Catholic Bishops Conference should consult with the Holy See, and make public any advice received, in order to clarify whether information received from a child during the sacrament of reconciliation that they have been sexually abused is covered by the seal of confession' (Recommendation 16.26).
Since then, the community, the faithful, and priests are none the wiser. Fr Waters published an article in July 2017 stating that 'it is simply quite incorrect to say, "Whatever I tell a priest in a confessional will never by revealed by him to anyone." More accurately, canon 983 states that whatever sins of a penitent confessed by the penitent to the priest during the celebration of the sacrament of penance must never be revealed by the priest to anyone — a very different matter.'
In April 2018, Archbishop Anthony Fisher, Archbishop of Sydney, published an article disagreeing with Fr Waters and asserting that 'the clear teaching of the church is that no priest may report to the civil authorities or anyone else what he has learnt from a penitent in confession. Any priest who did so would automatically be excommunicated and subject to further ecclesiastical penalties.' Taken to its logical conclusion, Archbishop Fisher's claim would render me liable to automatic excommunication if I were to reveal that it's raining in Melbourne today and I know this because Sally told me in confession.
There is no way I would want to defend a seal of the confessional so widely drawn. However, I do think there is a case for respecting the seal of the confessional tightly defined as done by the canonist Fr Waters. But to do that, the Church would need to get its act together.
So, let me offer a rationale for maintaining a circumscribed seal of the confessional. Given the history of child sexual abuse and the past institutional failures to safeguard against it, the state has a legitimate interest in including church workers and ministers of religion in the class of persons required mandatorily to report to authorities when they suspect on reasonable grounds that a child is, or may be, at risk when that suspicion is formed in the course of the person's employment. I fully support all proposed state and territory laws which would extend mandatory reporting to anyone who works for a church organisation in any role, in the same way as it applies to teachers, social workers and police officers.
In Australia, at the Commonwealth and state level, we have laws in relation to the admission of evidence in legal proceedings. All jurisdictions extend a privilege of non-disclosure to three classes of evidence: evidence of discussions between lawyers and their clients in preparation of their cases; evidence of information shared with a journalist by a protected source assured anonymity; and 'a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination'.
"I still think the issue is a red herring ... a tenth order issue when it comes to reform of the Catholic Church to ensure the safety of children. Those who focus on it strongly tend to be people with little understanding or experience of how confession is actually practised."
When it comes to child abuse, is there a case for maintaining the first two privileges at the discretion of the client or source while abolishing the third regardless of the views of the penitent?
We know from the royal commission that paedophiles tend to be manipulative and deceptive. They are expert at flying under the radar. A person coming to confession can choose to attend at any church, including one where he is not known. He can choose whether to confess anonymously behind the grille or openly in front of the priest. In 33 years as a priest, I have never had anyone confess child sexual abuse to me. I think the prospect of that happening will not be increased by removing the privilege in relation to the confessional seal.
It is far more likely that a criminal lawyer or family lawyer will learn of child sexual abuse from their clients than will a priest in confession. It is far more likely that an investigative journalist would learn of child sexual abuse from an undercover source than a priest sitting behind the confessional grille unable to identify the penitent. Deciding to maintain the privilege between clients and their lawyers and between journalists and their sources, the state makes an assessment about conflicting goods. It's the only way that citizens can get their legal advice. It's the only way the media can get their stories necessary to protect our fragile democracy.
I readily concede that many non-religious citizens have little sympathy or understanding of the religious worth of a personal confession under the seal. But such a practice to date has been an integral element of freedom of religion for some citizens. States like South Australia without any human rights act have blithely legislated to take away this aspect of religious freedom without assessing whether its abolition does anything other than assuage the outrage of people in the community towards anything distinctively Catholic or religious.
At least the ACT with its human rights act has instituted a process for determining whether this proposed interference with religious freedom is warranted, offering to engage in a dialogue with the church about whether the proposed restriction is reasonable and demonstrably justified taking into account the nature of the right affected, the importance of the purpose of the limitation, the nature and extent of the limitation, and the relation between the limitation and its purpose, ensuring that the proposed law is the least restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
I still think the issue is a red herring. I still think it is a tenth order issue when it comes to reform of the Catholic Church to ensure the safety of children. Those who focus on it strongly tend to be people with little understanding or experience of how confession is actually practised.
If the states and territories do ultimately legislate to abolish the seal of the confessional, I hope our bishops will have the good pastoral sense to resurrect the third rite of reconciliation which replaces individual confession with a communal rite of contrition and forgiveness. This would still be a loss to religious freedom, especially for those who crave the rare opportunity to make a clean slate of their life before God and to put out before a priest their sins and assurance of God's forgiveness. But in the present Australian climate, I don't expect too many of our lawmakers to lose sleep over that.
I do however confidently assert that the abolition of the legal protection of the seal of the confessional will not render one child safer and might just take away the occasional opportunity for an offender to come forward seeking God's forgiveness with a firm purpose of amendment, including the desire to turn himself in. I continue to assert that you can 'get it' in relation to child sexual abuse and still espouse the sanctity of the seal of the confessional properly understood and applied.
Frank Brennan SJ is the CEO of Catholic Social Services Australia