As we know, in our Catholic understanding, the Seal of Confession is absolute, inviolate, held with the utmost sacred of trusts. Nonetheless, we have seen two State jurisdictions remove this privilege, South Australia and the ACT. The New South Wales Government has demonstrated maturity in deferring the question until a nationally consistent approach might be developed.
It is curious indeed that of the 409 Recommendations presented by the Royal Commission, and of the 336 accepted fully or in principle by the NSW Government, as an example of one jurisdiction, the one point on which media focus almost exclusively is the recommendation about the Seal of Confession (the Seal). This curiosity requires interpretation. Why might there be such a focus on the Seal when its actual practice suggests that its removal from legal privilege is such a tangential mechanism for the protection of children in Australia? Will the children of Australia, the overwhelming majority of whom are not at all affected by the Sacrament of Confession, be made safe because the law has removed the legal privilege of the Seal? Therefore, it must be asked how a State intrusion into the sacred trust at the heart of the Seal protects our children. The Royal Commission has detailed, most regrettably, incidents where the Seal did not work for the protection of children. However, are such instances sufficient justification for its removal? Do we say family life should not exist because for some children this has not been the most protective environment? No, because there is a good in family life that transcends the difficulties and occasions of harm in some family circles. It is the same with the Seal: there is a good present in its retention that transcends the potential for its misuse.
Notwithstanding this, we would not be in the current situation if crimes had not been committed, if children had been kept safe in our community, if there had not been such hubris in our Church about its own social and political status. Of course, what really lies behind the focus on the Seal is the power clergy have exercised in the past. Somehow, in the popular mind, the Seal is what most symbolises clerical power and immunity, and so it becomes very significant. Clergy have presented, all too commonly, as ‘above the law’, ‘a law unto themselves.’ This clearly has been harmful; the evidence of such misplaced status is clear and this historical position cannot be left unaddressed. The Royal Commission has unequivocally, and rightly, laid bare the disastrous exercise of clerical power, built on the premises of exception, entitlement and exemption. There have been children, especially, who have been irrevocably harmed in the exercise of this power. We must be ruthlessly honest here and everyone, including ourselves, is right to demand the end to such power. Changes to legislation can be of welcome assistance in this.
But, in the face of the rightful objection to clerical power, children will not be kept safer by laws removing the legal privilege of the confessional which is, at base, a forum of conscience – not only for the penitent but also for the confessor. The rights of a person, or group of persons, are not protected through a State-imposed violation of conscience on another group of persons. This may seem to be protective of children, but in the end, it erodes social trust and confidence – a direction which cannot ultimately be for the benefit of children and of society. In the end, we cannot be morally bound by civil laws that are antithetical to religious conscience. Civil law can never be absolute. To think this is to abandon conscience to the State and to spawn the worst forms of fascism.
And yet, society rightfully demands that Church communities, like any other, be fully protective of children. Clergy cannot be immune from that demand. But what will make children safe in the ministry of clergy are those mechanisms that hold us far more accountable in ministries where there is far more potential for children to be harmed. For this reason, I have argued the need for changes in legislation that demand national registration of ministers of religion, annual accreditation, mandatory professional development and professional supervision. These must be presented in the current debate as the real means by which children will be protected and I am at a loss to understand why Governments do not focus on these recommendations – all of which were presented in the outcomes of the Royal Commission. Perhaps because these innovations will cost money?
The practice and nature of Confession is grossly misunderstood by both media and lawmakers and also largely misunderstood by Catholics. The private form of Confession to which we are now used came into the practice of the Church in the Middle Ages. For a thousand years earlier the form of the Sacrament was quite different. It is the Sacrament that has undergone most change in its expression over the centuries. In the increasing privatisation of the Sacrament, there is now less than adequate understanding of the nature of sin and reconciliation. The current situation challenges us to a more serious catechesis about the nature of these. The Sacrament is not for the confession of crime, but for the admission of spiritual guilt. There is a time for the Sacrament to be celebrated, and, in respect to crime, its time is only after there has been public admission of wrong committed.
This is the advantage, and benefit, I believe, of the current scrutiny of the Seal of Confession. It forces us to address very significant questions about the nature and practice of the Sacrament: what genuinely constitutes the Seal? Does the Seal pertain only to the confession of sin, or does it envelop whatever is said between penitent and confessor, including small talk about the weather? In respect to the Seal, is the disclosure of abuse by another the same as the disclosure of one’s own crime? On what grounds can Absolution be withheld? How can the community be educated to a more mature understanding of the nature of the Sacrament? There are currently very mixed views about this amongst bishops, theologians and canon lawyers. This alone forces us to admit the complexity of the nature of the Sacrament.
However, the State also must address questions if it proposes changes to legislation that currently protects the Seal of Confession. What are the implications for the disclosure of crimes that are not child-related? If one disclosure is highlighted, why not others? Where do the requirements of reporting cease? Might any forum of trust disappear altogether? How is a confessor to be defended from entrapment? How is prosecution to be pursued when the priest is bound by ecclesiastical law to complete silence in the face of a charge of concealment brought against him? What evidence is required for a successful prosecution? How can a priest be held accountable for a confession made anonymously?
As the questions arise, let us take the opportunity that presents itself. As citizens, let us make our position known to lawmakers. This is the responsibility of each and every Catholic. And as a community of faith, let us use this moment not only to deepen the way in which we understand the nature and practice of our sacramental life, but also the importance of seeing ourselves as both citizens and disciples. We can be both.