The Australian Royal Commission into Institutional Responses to Child Sexual Abuse has published its final recommendations on Criminal Justice. One is of particular interest: the section entitled Failure to report offence recommends “the introduction of a new criminal offence of failure to report targeted at child sexual abuse in an institutional context (recommendation 33)”. In particular, it proposes that clergy should no longer be permitted to refuse to disclose offending on the grounds that they came by the information in the course of a confession:
“Removing the exemption for religious confession
We recommend that the failure to report offence should apply in relation to information disclosed in or in connection with a religious confession, and that there should be no excuse, protection nor privilege in relation to religious confessions for the failure to report offence (recommendation 35).
We understand the significance of religious confession – in particular, the inviolability of the confessional seal to people of some faiths, particularly the Catholic faith. However, we heard evidence of a number of instances where disclosures of child sexual abuse were made in religious confession, by both victims and perpetrators. We are satisfied that confession is a forum where Catholic children have disclosed their sexual abuse and where clergy have disclosed their abusive behaviour in order to deal with their own guilt. We heard evidence that perpetrators who confessed to sexually abusing children went on to reoffend and seek forgiveness again.
We were told in submissions that any intrusion by the civil law on the practice of religious confession would undermine the principle of freedom of religion. In a civil society, it is fundamentally important that the right of a person to freely practise their religion in accordance with their beliefs is upheld.
However, that right is not absolute. This is recognised in article 18 of the International Covenant on Civil and Political Rights on the freedom of religion, which provides that the freedom to manifest one’s religion or beliefs may be the subject of such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The right to practise one’s religious beliefs must accommodate civil society’s obligation to provide for the safety of all and, in particular, children’s safety from sexual abuse. Institutions directed to caring for and providing services for children, including religious institutions, must provide an environment where children are safe from sexual abuse. Reporting information relevant to child sexual abuse to the police is critical to ensuring the safety of children.
We have concluded that the importance of protecting children from child sexual abuse means that there should be no exemption from the failure to report offence for clergy in relation to information disclosed in or in connection with a religious confession.” [emphasis added}