Good intentions do not produce good outcomes – Why Catholic Priests should not have to break the Seal of the Confessional.

I am not and never have been a Catholic, I was raised a Protestant and would describe myself as an Agnostic. But as a believer in the rights and dignity of the individual, I do not support the proposal by the Royal Commission into Child Abuse that would force a priest on threat of criminal prosecution to break the Seal of the Confessional in cases where someone has confessed to sexually abusing a child. You might on face value be supportive of this as a way to help reduce occurrences of children sex abuse, but if we are to be intellectually honest we must judge any piece of public policy by its results rather than its intentions. I will provide three arguments why this proposal will not increase rates of conviction against child sex offenders and instead will only further undermine the constitutionally protected right for an individual to freely exercise their religious beliefs.

My first point grounds itself in common sense which is that the only result of this proposed change will be that those who have abused children will not attend or will not reveal it to a priest during confession. The Sacrament of Penance and Reconciliation known more commonly as ‘Confession’, is inextricably bound with the absolute confidentiality of the priest. If the confidentiality of the Priest-Penitent relationship is broken the priest faces the most severe punishment available to the Catholic Church, excommunication. Even in cases where information is obtained in a confession that reveals a danger to the priest’s own life, they cannot report this to the police. There are some situations where a priest can refer a particularly difficult situation heard in a confession to a higher authority as a means of seeking advice about the appropriate course of action for the Penitent. This can only be done with the explicit permission of the Penitent and the priest must not reveal any personal details about those involved.

My second point is to refute the comparison of function many have made between the role of the priest and psychologist/psychiatrist; as many have used the alleged similarities as evidence that we should force priests to report information heard during a confession. This argument suggests that because we already have laws in-place which requires a psychologist/psychiatrist to breach confidentially and report information heard from a patient which suggests that they are a danger to the well-being of others or themselves. I commence the counter-argument by firstly pointing out that the laws that we have in place for a psychologist/psychiatrist requires them to explain explicitly the system of confidentiality and when it can be broken to a patient in the first consultation. Issues that arise when the change to confession is applied retrospectively become still exist if a similar framework is introduced for a priest, as unlike a priest no possible situation exists where a psychologist/psychiatrist was privy to hearing confidential information and then was suddenly bound to report such information. A priest then would be bound to report information disclosed by an individual who at the time of confession could not have possibly been aware of the change in confidentiality which knowledge of undoubtedly would have influenced their decision to confess to a serious offence. Not only was the Penitent not aware of the future change the longstanding role of penance and/or confession in the Christian and Catholic faith would no doubt have led them to believe in its confidentiality. This change introduced retrospectively would represent an extreme act of defilement of the religious traditions of Catholicism and huge betrayal of trust of Catholic citizens.

The problems outlined if this change was introduced retrospectively reinforces my argument that you cannot faithfully compare the two professions and use this comparison to suggest that we need similar legislation. By virtue of their profession both psychologists and psychiatrists deal with severely mentally ill patients, and we accept as a society that due to the nature of these individual’s situations may arise when confidentiality should be breached to protect most commonly the life of the patient. We have laws in place to protect mentally ill individuals because by definition these they are suffering from mental processes that have been determined by a medical professional as unhealthy. A priest may hear confessions from people who are mentally unwell but when compared with the amount seen by a psychologist/psychiatrist, it makes up a far smaller proportion. People who attend confession may be individuals who have committed a breach of our legal system or of rules that being a Catholic requires you to follow. It would then be an accepted point that a priest would be exposed to more admissions of guilt or evidence about criminal offences than a psychiatrist or a psychiatrist. A more accurate comparison due to the high amount of criminal evidence exposed to would be with the legislation that makes up Australia’s Legal Professional Privilege. This system is designed to encourage full disclosure of information between client and their lawyer, which can normally only be waived at the discretion of the client not the lawyer. A far fairer argument by comparison then suggests there does not exist a strong precedent for the change and instead acts as good evidence against any change.

Mentally ill individuals may due to their illness unintentionally reveal information to a psychologist or psychiatrist that justifies reporting them and breaching confidentiality. They may also present symptoms that a professionally trained therapist concludes warrant revealing sensitive information to prevent severe harm to the patient or others. If a severely mentally ill patient reveals that they sexually abused a child to a medical professional, they can make an evaluation about the mental state of the individual and with that determine whether they need to be reported. If a mentally ill individual admits during confession to sexually abusing a child to a priest, who are not medical practitioners trained to identify signs of mental illness, are they required to report this person to the police despite their strong suspicion that the individual is most likely just mentally unwell? What if they decide not to report the individual but later they are found guilty of a separate case of child abuse, is the priest now liable for not reporting a confession that they determined was the product of mental illness or a religious cause not recognised by the law? We then put every priest in the precarious situation where confession transforms from a long established religious practice and into a legal minefield where one mistake can lead to criminal prosecution.

My third and final point focuses on the problems that will be faced when a court is trying to convict a priest for not having reported a case of child sex abuse. A psychologist/psychiatrist is required to take extensive notes during the consultation and these can be requested by the court. A priest does not take notes during confession and will not begin doing this even with the implementation of this proposed change. The court may then be in a situation where the guilt of a suspect relies upon a priest, who hears multiple confessions daily without any notes, to recall explicit details of a confession that may have been heard a considerable time before they were forced to report the crime to the police. It is common practice for a priest to ask an individual who has returned to discuss a previous confession to remind them of their previous confession, reinforcing both the confidentiality of the practice and the lack of anamnesis involved in the process.

A situation that will almost undoubtedly arise because of this change that highlights its flaws would occur when an individual who has been charged with sexually abusing a child had also regularly attended a Catholic Church. The priest would immediately be accused of having hidden evidence about the individual facing trial, and as well as having to without any evidence prove they were not aware, would no doubt face a media crusade and witch hunt. How does a priest determine when something said in a confession is related to the Penitent having sexually abused a child? Now we can see what could happen if they determine that the information is not relevant or related, but the reverse is also problematic. What if a priest, worried about being found criminally liable, reports confidential information from a confession to the police about an individual and this ends up unnecessarily revealing highly sensitive information about the Penitent. The priest has no written record of what is said in a confession, but the police undoubtedly certainly retain the sensitive information that the priest revealed to them. Police could much later use or misuse this confidential information, which would be a common and a significant violation of an individual’s rights if this change was implemented.

The proposal to compel a priest to report evidence of child sex abuse during confession is an overt attempt to manipulate the nature of confession, which is a process that constitutes the foundation of the Catholic Faith. This should be concerning to anyone who supports the freedom to exercise one’s religious beliefs; particularly as we maintain strict support for confidentiality under the similar client-lawyer relationship. If this change is introduced and applied retrospectively it would present an egregious corruption of the fairness that underpins our legal system, as well as a shocking misuse of the citizen’s trust in their government. Someone who admits to a priest that they committed a crime did so with the belief that the act of admission itself, not the crime committed, both complied with the legal system and that the priest was bound by strict confidentiality. This individual could now be prosecuted when they undoubtedly would never have admitted guilt if they were aware of the proposed change. Would a priest who heard such a confession be forced from the day this change is introduced to immediately report any potential evidence heard throughout a long career of conducting confession or face criminal prosecution for hiding evidence? As a society, we are united in wanting to eliminate any occurrence where children are sexually abused and failing that extensively punish those who are found guilty of doing so. But good intentions alone do not produce good outcomes, and analysis of this proposal suggests that it will not help convict child sex offenders but instead only further undermine religious rights of Christians in Australia.

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