Recent years have seen a worldwide increase in the reporting of child sex abuse. With it has come a comparable increase in the horror expressed in the media and in the general public at this largely hidden cancer eating at the innards of even healthy-looking societies. The media have unsurprisingly given headline treatment to the position of Christian ministers in relation to such abuse, not so much because they may be abusers (a matter for a very different study), but because their commitment to observing the highest degree of confidentiality in spiritual counselling has been widely suspected of leading to concealment of matters which, if exposed, would be subject to prosecution. This carefully documented symposium traces the legislative trends (and conundra) of recent decades in various Western nations and across a variety of denominational provisions. It is published in Australia, from where one of its co-editors, Keith Thompson comes; and his editorial partner, Mark Hill is a QC and is eminent as an ecclesiastical lawyer in England.
The tightest requirement of confidentiality obtains within the Roman Catholic Church in the use of the confessional. The canons allow no breach of confidentiality in respect of information imparted to a priest under the ‘seal’ of the confessional, and in principle a Roman priest, even under oath in a court of law, must opt to go to prison rather than reveal anything learned ‘under the seal’. While there seems to be little evidence from around the world that priests are often facing this dilemma in the courts or during prior investigations, there has burgeoned a conviction that safeguarding requirements in secular states ought not to allow any claim to privilege before the law for clergy in possession of vital information relating to child sexual abuse.
As the ‘seal’ appears to be most rigorously imposed and honoured in practice in the Roman Catholic Church, a large part of the symposium exposes how various countries with a substantial Roman Catholic population have dealt with this by law: namely, Australia, Italy, Ireland and the USA. Australia occupies a third of the volume and, although there has undoubtedly been some practice of the confessional in the Anglican dioceses there, these are not mentioned and the spotlight falls entirely on the Roman Catholic Church. The Royal Commission of 2013–2017 recommended that the separate states should abolish any religious confession privilege (RCP), and Keith Thompson’s own chapter opposes this move – ‘Can RCP be intellectually justified in modern secular Australia?’: answer: ‘yes’. In the next chapter Robert Natanek and Patrick Parkinson provide data to demonstrate that abolishing RCP, now implemented in ‘most jurisdictions across Australia’, does not make children safer; and they state the resultant stark dilemma for priests: ‘In short, when faced with a confession of child sexual abuse, the priest’s subsequent action will either lead them to criminal punishment or excommunication.’
What then of the USA? The three final chapters explore the position. The key background is, as Gregory Zubacz writes in his chapter 8: ‘Between 1828 and 1991, all American states had enacted some kind of legislative provisions concerning the privilege’. He reports widespread concerns expressed in the face of a horrific scale of child abuse, not least at the hands of priests, but is confident that removing the privilege would do no good, and echoes the Australians’ conclusion: ‘By forcing the confessor to make the invidious choice between excommunication and prison for contempt, it would likely be seen as bringing the administration of justice into disrepute.’ He interestingly gives three pages to a sketch of how the English atheist philosopher Jeremy Bentham surprisingly defended the privilege for Roman Catholic priests in Britain in the early nineteenth century.
Two more distinctively Roman Catholic countries, Italy and the Irish Republic, have a chapter each. In Italy the legal protection of the clergy from having to disclose anything learned in the confessional is total – for the standing of the Roman Catholic Church is guaranteed by an international agreement, that is, one between the Italian State and the Vatican City State, which cannot therefore be amended unilaterally by parliamentary fiat. Mario Ferrante even informs us that ‘the obligation to confidentiality is taken so seriously that there are also provisions within the Criminal Code which make the disclosure of anything learned during confession a crime’. In the Irish Republic, where until recently over 90 per cent of the population was actively engaged with the Roman Catholic Church, the seal of the confessional was honoured by all. Thus, as was the tendency in other countries also, that respect meant that priests were not cross-examined about communications made under the seal, and thus no case studies exist. Stephen Farrell does note a couple of obiter dicta by judges saying that, had some particular issue raised the issue of confessional privilege, they would of course have respected the seal. However, widespread concern about child abuse has in recent years raised questions as to the propriety of a total seal, and two Acts in recent years have apparently undermined any attempted reliance upon the seal for a priest under examination on oath in such cases. There have, however, been no cases reported in which this apparent clash between the law of the Republic and the law of the Church has been tested.
In order to do justice to a range of denominations, Andreas Aarflot, the adviser on law to the General Synod of the Church of Norway describes the legal situation in the Scandinavian (Lutheran) Churches of Norway and Sweden. The confessional with its concomitant of absolution is defined and accepted in both Churches, though in Norway a lay person may exercise the ministry to another layperson. Both Churches have recently been in transition from being ‘state Churches’ (owned and governed wholly by state machinery) to being ‘free’ in ways differing from each other. The upshot in both cases is that there now exists a church law distinguishable from civil law. The duty and privilege of confidentiality is still stated as absolute in civil law, but in fact there are exceptions, differing between Norway and Sweden, but focused in a duty lying upon those who hear confessions to breach the seal if that is necessary to avoid the execution of planned crimes. There does not seem to be a recorded case of this happening.
It is inevitable that an English Anglican reviewing for an Anglican journal should home in on the centre-piece chapter, written jointly by Mark Hill and Christopher Grout, on ‘The Seal of the Confessional, the Church of England, and English Law’. While they cite one instance of a Roman Catholic priest being committed for contempt in relation to a theft, they too acknowledge that there is no comparable case of an Anglican cleric invoking the seal and risking the penalty for contempt of court – but they view the seal as sustained by the civil law as well as by canon law in the case of Church of England clergy. Their case rests almost entirely on the unrepealed proviso to Canon 113 of 1604 (which they date as 1603), a text which still stands in today’s canons, though the entire 1604 body has, with this exception, been abolished. They cite the Guidelines for the Professional Conduct of the Clergy (2015) and the Report of the Seal of the Confessional Working Party (2018) and their own recent writings, and the 1604 proviso runs like a backbone through the body of argument. This reviewer, however, opines that there is more to be said about the meaning and the standing of that proviso, and, as noted, it has never been tested. The country may be up in arms about child abuse (not least sexual abuse); there may be ever more persons and regulations devoted to ‘safeguarding’; but, in the instance of the feared struggle over the seal of the confessional, it is not so much that the stable-door has been shut at the wrong point in time, but that what the parties have closed with force proves to be only the top half of the stable door and the horse was not seeking to escape by it anyway.
So, as in many parts of the world, the issue remains hypothetical. Mark Hill writes in his chapter on England, ‘Where canon law is in conflict with civil law, the latter prevails’, but soon after says ‘…few commentators recognize the exceptional position of the seal of the confession within the Church of England arising, as it does, from the express duty of non-disclosure being a matter of English law’. The apparent difficulty of harmonizing these two statements seems to be the ground for his acknowledging that his co-editor here parts company with him. There will, I judge, be few ecclesiastical (or criminal) lawyers reading this who will not be grateful that the issue remains so obstinately hypothetical, and is unlikely to disturb their practice.
