Australian Royal Commission recommends lifting seal of confessional

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}

Cite this article as: Frank Cranmer, "Australian Royal Commission recommends lifting seal of confessional" in Law & Religion UK, 14 August 2017, https://lawandreligionuk.com/2017/08/14/australian-royal-commission-recommends-lifting-seal-of-confessional/

9 thoughts on “Australian Royal Commission recommends lifting seal of confessional

  1. Thanks for another important post, Frank. Which jurisdictions currently, with respect to certain crimes, make it an offence not to report those crimes even if disclosed under the seal of the confessional?

    • Sorry, I haven’t the foggiest idea – but the same thought crossed my mind. In states that are parties to the ECHR, there would presumably be an Article 9 issue about the right of the confessor to manifest under Article 9, an issue about the penitent’s (?more questionable) right to privacy under Article 8 and even, perhaps, the more general question as to whether Churches, as institutional entities, have any right to protection for their views on the confidentiality of confession.

      But my impression is that the protections for human rights in Australia are somewhat less than the scope of the protections under the ECHR.

      • It is an offence under the Terrorism Act 2000 s 19 to fail to disclose to a constable one’s belief or suspicion that another person has committed an offence under the rest of the Act (there is no duty to report someone else for failing to disclose beliefs or suspicions). The only stated exemption is for professional legal advisers, but it may not apply to the seal of the confessional in any case, as it is specified that the belief or suspicion in question must, to fall within the Act, be based on ‘information which comes to his attention—
        (i)in the course of a trade, profession or business, or
        (ii)in the course of his employment (whether or not in the course of a trade, profession or business)’.

        I see that the UK did contemplate having a legal duty to report child abuse, but this seems to have been dropped:
        https://www.theguardian.com/society/2016/sep/04/mandatory-reporting-child-abuse-buried.

        Is it the case in England that there is no crime at all that carries with it a *universal* legal duty that it should be reported?

  2. The Commission is not proposing the removal of any existing legal protection for religious Confession since, so far as I am aware, there is no such legal rule in Australia and there is certainly no legal protection for confession in English law. The issue only arises in Australia because of the proposal that it should be an offence not to report known or suspected Child abuse regardless of how the individual learnt of it. Frankly l’m not too sure how practical or useful the proposal will be in practice.

    • Thanks Neil; I was pleased to see your confirmation that there is no legal protection for confession in English law – G. K. Chesterton has a lot to answer for. I normally refer to Rupert Bursell’s ‘The Seal of the Confessional’, Ecclesiastical Law Journal, 2 (1990), 84-109, but in undertaking a search re: Daniel’s question, came across Colin Podmore’s “The Seal of the Confessional in the Church of England: Historical, Legal and Liturgical Perspectives” written from the point of view of what Colin describes as “an experiment in what a diligent amateur with a reasonable library and internet access can produce over a couple of weekends”.

    • Thanks, Neil. Not knowing anything about Australian law, I was merely assuming from the Commission’s recommendation “that there should be no excuse, protection nor privilege in relation to religious confessions for the failure to report offence” that the courts were reluctant to inquire into the content of confessions – de facto if not de jure.

      And I’m not sure what practical difference it will make, either.

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