A very important book critically addresses proposals that statutes protecting the confidentiality of religious confession should be abolished.
by Massimo Introvigne
Article 1 of 5.
Religious Confession and Evidential Privilege in the 21st Century (Cleveland, Queensland: Shepherd Street Press, an imprint of Connor Court Publishing and The School of Law, The University of Notre Dame Australia, 2021), edited by Mark Hill, a distinguished British barrister, and A. Keith Thompson, professor and associate dean at the University of Notre Dame Australia School of Law, with a foreword by former Archbishop of Canterbury Rowan Williams, may well be one of the most important books on religion of 2022 (the year when it has been in fact released, although it bears a copyright date 2021). I will review it in a series of subsequent articles, divided by geographical focus. In this first article, I will concentrate on Australia.
The subject matter of the book is the claim, originated by horrific cases of sexual abuse perpetrated by Catholic priests and ministers of other religions, that laws protecting the confidentiality of Christian confession and similar practices in other religions should be eliminated. What Rowan Williams calls a “troubling legal attack” against a long-enshrined legal principle (9: quotes in this series refer to the Hill-Thompson book, unless otherwise indicated) is based on the idea that religions have protected sexual abusers by hiding behind the seal of confession. Religionists have countered, as Williams writes, that “the ‘seal’ of confession is not—as some critics would argue—a form of malign secrecy but an assurance that all kinds of destructive and damaging behaviour can be spoken out, named and acknowledged for what they are” (8). If courts of law would not recognize that confessions made to a religious minister are confidential, in the end they would not be made at all.
The book examines the situation, and the controversies, in six different countries: Australia, the United Kingdom, Ireland, Italy, Norway, and Sweden. It could have been expanded with other countries such as France, where similar problems have been discussed after a 2021 report commissioned by the Catholic Church on sexual abuse of minors perpetrated by Catholic priests suggested that the number of cases might have been much higher than it was previously believed. Collective books, however, have limits, and this is already a 300-page volume.
Australia is one of the countries where the problem was first raised, with the unsuccessful 2003 attempt by controversial Senator Nick Xenophon, who crusaded against both the Catholic Church and the “cults,” to compel religious ministers in South Australia to disclose the content of confessions in cases involving child sexual abuse.
The 2017 report of the Royal Commission into Institutional Responses to Child Abuse recommended that Australian state and territorial governments eliminate the confessional privilege in cases of child sexual abuse. Most Australian states and territories followed the recommendation, creating a conflict with the Catholic Church, which immediately answered that priests would go to jail rather than violate the sacred obligation connected with the confession. Those who would obey the Australian laws would be excommunicated, the Australian bishops said.
As Robert Netanek and Patrick Parkinson explain in their chapter, in 2020 some Australian Catholic Bishops, following a suggestion by the Royal Commission itself, tried to find a solution where the religious confession privilege would be maintained but priests would be instructed to withhold absolution until penitents who had confessed sins of child abuse had reported themselves to the authorities. However, the Bishops wrote to the Vatican, whose Apostolic Penitentiary, competent on the matter of confession, answered that “absolution cannot be made conditional on future actions in the external forum” (89).
In his chapter, A. Keith Thompson notes that the present situation of the religious confession privilege in Australia is not totally clear, as the new statutes that followed the Royal Commission’s report contrast with other norms that have not been abrogated. Thompson reports that statutes protecting the privilege were introduced in Australia and New Zealand since the 19th century, following controversial cases where the public opinion largely sided with the priests, while the Royal Commission’s position was “an under-theorised reaction to a moral panic” (58). His criticism of the Commission and of the new statutes is based on four arguments.
First, as Jeremy Bentham (1748–1832), the English philosopher who was no friend of religion nor of the Catholic Church, famously argued in the early 19th century, “the moment the constabulary were known to have harvested their very first confessional secret, the well of such secrets would dry up” (45). Criminals would not confess theirs sins to priests and ministers if they knew that what they confess would be reported to the police. Second, in practice very few perpetrators and victims confess sexual abuse incidents to priests and pastors, and when they do it they try to be vague on details, so that a hypothetical report by the minister would be of little use to the authorities. Third, mandatory report of information ministers have learned outside confession, which the Catholic Church and other Christian denominations do not oppose, is the real key to improve the protection of children, as the experience of several Australian states demonstrate. Fourth, the Commission’s argument that abrogating the religious confession privilege would not violate Article 18 of the International Covenant on Civil and Political Rights on freedom of religion or belief, because that provision allows for “restriction” justified by “public order” and “public morals,” is faulty and based on a “misinterpretation” of the article (60). In fact, not all restrictions are justified, the sphere of conscience (in this case, of the priests and ministers) should remain inviolable, and the Commission did not prove that the same results cannot be achieved without gravely violating religious liberty.
The Royal Commission, argue Netanek and Parkinson, also made factual mistakes (as it did, as Holly Folk demonstrated writing in Bitter Winter, about the Jehovah’s Witnesses). It did not believe the Catholic bishops’ argument that confessions almost never include material that would be useful to the police to prevent further child abuse and identify the perpetrators. The Commission relied on two main sources. The first was the claim by Australian defrocked priest Michael Joseph McArdle, which the Commission quoted from the book of British anti-Catholic journalist John Cornwell, The Dark Box: A Secret History of Confession (New York: Basic Books, 2014), that he had told other priests of his abuses some 1,500 times in confession. However, the Commission failed to consider that the judges of his case regarded McArdle as a pathological liar, and he tried to use the story of the alleged confessions to divert blame from himself to the Catholic Church.
The second source was a qualitative analysis of nine priests guilty of sexual abuse who accepted to talk to her by Irish psychologist Marie Keenan. The Commission relied on Keenan’s finding that eight of the nine priests disclosed their abuse in confession. However, Keenan also reported that they did so without disclosing details that might have lead to identifying themselves or the victims. Perhaps some members of the Commission were not aware that in Ireland and other countries, including Australia, in many Catholic churches penitents may go to confession hiding behind a grille. Those who do not want to be identified can also seek confession far away from where they live, a common practice among Catholics.
In 2019, Netanek and Parkinson add, a report of the Justice and Community Safety Directorate of the Australian Capital Territory had advised against eliminating the confession privilege by arguing that, if they knew that they may be reported to the police by the priest, perpetrators “will probably avoid confession altogether; or alternatively, they may exploit the potential under the rite of confession prevalent in Australia to confess anonymously and non-specifically” (104). Netanek’s and Parkinson’s conclusion is that the new laws against the confession privilege would not save a single child from abuse, although they do create a dangerous precedent that threatens religious liberty in general.