These are tough times for the confessional privilege, i.e. the legal protection of the secret of the Roman Catholic confession and similar practices in other religions. Laws compelling priests and pastors to report information obtained in confession about child sexual abuse have been passes in Ireland, in almost all states and territories of Australia, and in some states of the US. Earlier this year, Bitter Winter devoted a series of articles to this theme.
Now, in its final report, the Independent Inquiry into Child Sexual Abuse in England and Wales states at paragraph 109 that “neither the freedom of religion or belief nor the rights of parents with regard to the education of their children can ever justify the ill-treatment of children or prevent governmental authorities from taking measures necessary to protect children from harm. The Inquiry therefore considers that mandatory reporting as set out in this report should be an absolute obligation; it should not be subject to exceptions based on relationships of confidentiality, religious or otherwise.” In fact, the Inquiry is proposing to eliminate the confessional privilege in cases of child sexual abuse.
The Church of England had already set up a Seal of Confessional Working Party. It has reacted to the Inquiry’s report by stating it is seriously considering to instruct its pastors to report to the police information on child sexual abuse obtained in confession. The Archbishop of Canterbury is said to be personally favorable to mandatory reporting in all cases.
The Jehovah’s Witnesses, also mentioned by the Inquiry, have now a policy under which their elders are instructed to report to the police credible instances of sexual abuse even if reporting is not mandatory under local laws (while they may still rely on the confessional privilege, where such privilege was protected by the laws, when sued for old cases that happened before the new policy was instituted).
The situation is, however, different for the Roman Catholic Church and the Eastern Orthodox Churches. As explained in the Bitter Winter series, they have reacted to similar recommendations and laws in Australia, Ireland, and the US by reiterating that they regards as a divine mandate the principle that the seal of confessional can never be broken, that their priests would go to jail rather than reporting information obtained in confession (not to be confused with what they hear in conversations outside the sacramental confessional relationship), and that priests who would obey human over divine law will be excommunicated. The Church of England always allowed for exceptions to the confessional secrecy, and confession among its devotees, although theoretically still existing, has in fact become rare.
The current attack on confessional secrecy is premised on the public outcry against sexual abuse of minors by priests and pastors. This is indeed a horrific crime, and one whose perpetrators have been shamefully protected in many cases by their churches, although even the Inquiry’s report acknowledges that the Catholic Church and other religious organizations have substantially improved their policies in the last decades.
However, defenders of religious liberty object that the case of child sexual abuse would act as a Trojan horse. Suppose that in the future some countries would be targeted systematically by terrorist attacks whose perpetrators will be Catholic or Orthodox. Wouldn’t the public outcry also call for compelling priests to disclose information obtained in confession? What about organized crime, drug dealing, rape (of adults)? What if serial killers confess their crimes to priests?
Eliminating the confessional privilege in one case would lead to eliminate it altogether, which would obviously be a violation of Article 18 of the International Covenant on Civil and Political Rights on freedom of religion or belief, considering that (secret) confession is an essential part of Catholic and Orthodox religious practice. So is auditing in the Church of Scientology, and countless similar practices in other religious organizations.
Destroying the secret of confession would also be detrimental to the cause of fighting the plague of child sexual abuse, rather than protecting it. Jeremy Bentham (1748–1832) was an English philosopher who was no friend of religion and certainly not of the Catholic Church. Yet, in the early 19th century, well before the Inquiry into Child Sexual Abuse and at a time when voices where heard against the confessional privilege, Bentham wrote that “the moment the constabulary were known to have harvested their very first confessional secret, the well of such secrets would dry up.” Criminals would not confess theirs sins to priests and ministers if they knew that what they confess would be reported to the police.
Assuming that today some guilty of child abuse go to confession and disclose information that, if reported, would allow the police to arrest them—a controversial issue, since the Catholic Church insists these instances are extremely rare—, the priests and pastors have a unique opportunity to try to persuade them to repent and report themselves to the police. If perpetrators knew that what they tell the priest would be reported to the authorities, they will simply not go to confession, and that opportunity will be lost.