Child abuse and the seal of Confession

[GhostWriter16]

A little late, but who cares? We forbid religious practices all the time when they're sufficiently weird. This seems like an obtuse justification for extralegal considerations and privileges.

I thought you were supposed to be the one that supports liberty?

 

[Leoreth]

I thought you were supposed to be the one that supports liberty? [obnoxious smilies removed]

Sometimes liberty is a zero-sum game.

 

[Patroklos]

Let's push it to the other extreme: can I convert to Mesoamerican polytheism and sacrifice people without being prosecuted?

It's rather obvious that a balance has to be found.

I could be wrong, but I believe human sacrifice is outlawed across all lines. So far nobody here has advocated the same as far as confidentiality.

 

[warpus]

The problem with this is that if you make the laws strict enough then religious freedom becomes meaningless then. Which makes your country unfree.

1. Make everyone follow the same laws
2. Make exceptions for religious rituals on a case by case basis
3. Freedom

The laws in our society should apply to everyone equally. #2 is there because I admit that certain religious practices, while technically illegal, should be allowed.. Things like walking around with a ceremonial knife at all times, which IIRC Sikhs must do. (I am probably not remembering the religious denomination correctly here, but you get the idea)

If your religion asks you to perform grossly illegal acts, then perhaps it is time to find a new religion.

 

[warpus]

The stated motivation or removing the confidentiality is to catch child abusers, all other concerns be damned. The largest group of defenders and concealers of child abusers are lawyers.

I am all for figuring out a solution to this problem and enacting it equally across the board.

If the solution involves continuing some sort of a confidentiality privilege between person A and person B, under some circumstances (priest/confesee, lawyer/client, doctor/patient, etc.) then so be it. If it means removing that sort of confidentiality, then it should be done across the board - affecting all such relationships.

It just doesn't make sense to me to have laws on the books that apply to everyone in a country.. except a very specific subset of people. They should apply to everyone equally.

 

[Patroklos]

Well then at least you are consistent. I do however believe you are simply throwing the baby out with the bath water.

 

[GhostWriter16]

1. Make everyone follow the same laws
2. Make exceptions for religious rituals on a case by case basis
3. Freedom

The laws in our society should apply to everyone equally. #2 is there because I admit that certain religious practices, while technically illegal, should be allowed.. Things like walking around with a ceremonial knife at all times, which IIRC Sikhs must do. (I am probably not remembering the religious denomination correctly here, but you get the idea)

If your religion asks you to perform grossly illegal acts, then perhaps it is time to find a new religion.

It shouldn't be illegal to carry around a ceremionial knife. Ever. Problem solved

I agree with you that if your religion tells you to, say, murder or steal, that shouldn't be legal. But since I apply the non-aggression principle to pretty much everything I don't really have a problem here.

I'm not sure that simply not revealing certain information is "Grossly" illegal.

What's your opinion on, say, consciencious objectors when there is a draft?

 

[Leoreth]

I could be wrong, but I believe human sacrifice is outlawed across all lines. So far nobody here has advocated the same as far as confidentiality.

Oh, I wasn't trying to create an equivalence to confidentiality in confession here.

I was just countering GW's argument that religious freedom is always preferable no matter what the religious custom in question is, which he supported by constrasting excessive laws with unobjectionable customs. All I did was giving a scenario where a reasonable law meets an excessive religious custom.

 

[Camikaze]

I could be wrong, but I believe human sacrifice is outlawed across all lines. So far nobody here has advocated the same as far as confidentiality.

Well no, what is being proposed is precisely that; that the religious exemption be taken away so that mandatory reporting is applied across (to use your words) 'all lines', and concealment of knowledge is outlawed across all lines.

@Jehoshua - your post doesn't make a whole lot of sense. To take the second part first, I'm not sure what 'the commonweal clause would be relevant in what I have said around the specificity of what people such as yourself are proposing' means. It seems that you brought up s 116 of the Constitution, which is not going to be helpful for you, whether we're talking about Commonwealth or state legislation, but particularly with regards to the latter, which is what we're talking about, and then decided to backtrack on it when it turned out it is pretty irrelevant. Moreover, domestic law is paramount, and state legislatures essentially have plenary power.

If you had read what I wrote earlier about legal client privilege, you would know that I didn't dismiss it. Pat for some reason has decided to revert to his original point, despite me already responding to it, but here it is again so you don't have to flick back.

Legal client privilege is necessary for the justice system to actually work. Confessional privilege and doctor-patient privilege are not. They're apples and oranges. The idea is not to take away a privilege necessary for the functioning of justice (i.e. legal client privilege), but to take away a privilege that is an anomaly and is both not necessary for and is in fact actively preventing the functioning of justice.

Looking at confessional privilege and doctor-patient privilege, only the former is absolute. Doctors have an explicit duty to report child abuse. I'm not advocated that special treatment for doctors be taken away, because they don't have any when it comes to mandatory reporting of child abuse! The privilege enjoyed by Catholic priests is an anomaly, when other professional privileges would not protect them. I'm not even advocating the taking away of the general professional privilege, just making it the same for doctors and for priests, which would require priests to report child abuse, as doctors are.

Moreover, the argument that a requirement to report would be ineffective and therefore shouldn't be tried strikes me as saying that we shouldn't have laws against murder because people kill anyway. Or that a group should be able to avoid having to obey the law, or should maintain some sort of immunity, if they are stubborn enough. It's absurd to suggest that a law should not be in place because the people who break it won't like it. Priests refusing to obey the law that everyone else must follow is not so much a problem with the law as a problem with priests.

@GW - you say that omissions should not enliven negligence, but I'm not sure you've actually thought that through, seeing as omissions make up a large chunk of negligence cases, and are based on the concept of personal responsibility that you claim to champion. Should a water provider who fails to test the safety of their water not be liable for resultant illness or death? Should a driver who fails to stop at a crossing not be liable for the damage sustained by a pedestrian they run down? Should a soft drink manufacturer who fails to maintain basic bottling standards not be liable for the injury suffered by an individual who finds a decomposed snail in their drink?

And remember then that the conduct we're talking about can be framed as either a failure to report or as an act of positive concealment. After all, a priest may be forced to lie or mislead in order to maintain the seal of Confession.

I don't want to chase this in circles, so I'll cut to my point, which is that omissions are quite clearly worthy of legal sanction. A failure to do something that a reasonable person ought to have done is just the same as doing something that a reasonable person would not have done. It's just two different ways of framing the conduct. Personal responsibility extends not only to responsibility for your own actions, but also to responsibility for your own inactions. A failure to do anything to protect children to whom you owe a duty of care, when you have knowledge that they are endangered by an individual with access to them, cannot be described as anything less than negligent, and is deserving of legal sanction.

 

[GhostWriter16]

Driving is kind of a unique case, as you are already traveling on a public road and thus taking that positive action without taking other actions directly endangers other people. Same thing with taking the positive action of providing water without checking it and whatnot.

Simply saying "I'm not going to testify" isn't the same thing at all. Its a refusal to speak. That a reasonable person might have done it is irrelevant. Testifying in this case is more akin (no pun intended) to giving a starving child food. Certainly to be expected. You should be morally condemned if you don't. But you shouldn't go to jail if you don't. Simply saying "I'm not going to testify" is the same to me.

Outright lying is perjury and therefore a violation of contract. When you swear to tell the truth in court, that's essentially a contract. Lying is violating it.

 

[Farm Boy]

Legal client privilege is necessary for the justice system to actually work. Confessional privilege and doctor-patient privilege are not. They're apples and oranges. The idea is not to take away a privilege necessary for the functioning of justice (i.e. legal client privilege), but to take away a privilege that is an anomaly and is both not necessary for and is in fact actively preventing the functioning of justice.

The very absolute nature of confessional privilege is exactly what makes it work? I don't see where there is confusion on that grounds. If priests are required to report crimes, then crimes where the perpetrator is not ready to turn himself in are not going to be crimes that get confessed. This isn't a doctor's office where you might need to go in for treatment and suspected child abuse in an unintentional outcome or fortunate side effect of diagnoses process, its a confessional - you only go there to confess. Priests would still be compelled to report suspected child abuse if they encounter reason to believe it is occuring in other capacity. If anything all you are requesting is to take out an anomaly that may lead to increased functioning of justice. Perfect systems of human interaction that don't exist in real life excluded, of course. Just like abstinence-only sex education.

 

[warpus]

Well then at least you are consistent. I do however believe you are simply throwing the baby out with the bath water.

It would really depend on the extent of the changes needed. I mean, if my position were to be enacted fully, you would have to go through every single law on the books and ask this about each one:

"Does this law apply equally to everyone, or does it discriminate based on religion, gender, ethnic background, sexual orientation, or anything stupid like that?"

And then if someone says
"Oh wait, in this particular law lesbians are singled out and treated differently"

you change the law and make it all inclusive or you get rid of it.

But if it's more like
"Hey, these guys have been doing this weird thing with a hat for the last 5,000 years and feel it isn't really that big of a deal to let them continue even though it would be technically against the law. Plus they believe that if they are forced to stop doing the hat thing that they will die and their souls will rot in lava for all eternity"

then you go "hmmm, maybe in this case we can make a sensible exception"

Crap, that would take a LONG TIME. Okay, you're right, screw that

 

[Patroklos]

Well no, what is being proposed is precisely that; that the religious exemption be taken away so that mandatory reporting is applied across (to use your words) 'all lines', and concealment of knowledge is outlawed across all lines.

Nobody but warpus has openly supported applying this across all lines. Cam for instance quite clearly refused to apply it tolawyer client confidentiality even though that has by far the greatest potential to uncover abusers.

As to your part about utility, you again err. The justice system is not the sole responsibility of government, and as has already been explained the doctor-client, spouse-spouse and clergy-flock confidentiality exist because they are seen to be necessary for those particular things to function.

But that is all irrelevant because the main gist of the arguement is that nothing is more important than rooting out child abusers. Not religion, not the bond of marriage, not effective medicine, not...oh yeah there is that one thing...

Your one thing does not trump everyone else's.

 

[warpus]

What's your opinion on, say, consciencious objectors when there is a draft?

I have no idea, really. I don't see how it's related to anything we've been talking about, but my jerk reaction would be to support a person's right to say "screw you" to the government and the military, if asked to suit up.

Then again, my stance on the social contract and social obligations should overrule that. I suppose I disagree with it in principle because I am opposed to war and would not want to participate. Plus I don't want to die.

I am obviously conflicted about the issue. My therapist tells me it's because of repressed memories I might have from 'nam.

 

[Jehoshua]

is not going to be helpful for you, whether we're talking about Commonwealth or state legislation, but particularly with regards to the latter, which is what we're talking about, and then decided to backtrack on it when it turned out it is pretty irrelevant. Moreover, domestic law is paramount, and state legislatures essentially have plenary power.

Yes but your ignoring international treaty obligations, which such a law may put Australia in violation of. I know the states are not bound by the federal constitution in this area, but in regards to international treaty obligations they are. Case in point Tasmania was forced to repeal its law forbidding sodomy due to a legal case which determined it violated Australia's human rights treaty obligations.

Legal client privilege is necessary for the justice system to actually work. Confessional privilege and doctor-patient privilege are not.

The legal client privelege is necessary for the functioning of the justice system as it stands yes, thats why it should be protected. Likewise the seal of confession is necessary for the functioning of confession itself and that is one reason it is protected. Ergo the sanctity of those two seals are necessary for their purposes. Your argument that the former is somehow quantitatively different in purpose is irrelevant, obviously they are different because they are different things, but the latter is not an anomaly in the system when it comes to reasoning because they are both protected in order to protect the purpose of those institutions and due to the nature of what is involved in both things.

Furthermore you say the former furthers the course of justice whereas the latter does not and so should be abolished. Well then surely if a lawyer has strong evidence for child abuse he should report it since its a serious matter and for the protection of children. Is it not a perversion of justice if the client can get away with such a thing with the collusion of the lawyer under the veil of lawyer client privelege? You being particularly sophist I think in attempting to dismiss the broader point and say the lawyer client thing is perfectly fine but the seal just has to go. If you want the seal to go for the reasons you do, then the logical outcome is that it applies to the lawyer client area as well for precisely the same fundamental reasons, despite your pleas that there is some fundamental difference between the two. At the end of the day on the basis of the reason your proposing the abolition of protections for confession, the same principle applies to the legal-client privelege and yet for some reason your not advocating that.

Oh and I know the Docor Patient privelege is not absolute, I just added it for the benefit of foreign audiences where it may potentially be.

Moreover, the argument that a requirement to report would be ineffective and therefore shouldn't be tried strikes me as saying that we shouldn't have laws against murder because people kill anyway.

This is not particularly relevant since were talking about a currently existing protection, and also because actual acts themselves are quantitatively different. Child abuse or murder are crimes which affect a victim and thus demand justice. Removing the seal or requiring reporting for priests however is aimed at finding those crimes to ensure the criminals responsible come to justice, something which what your proposing is exceedingly unlikely to see as a result. That should be self-evident even if one is looking at this through righteous indignation or if one is Anti-Catholic or against religion and wants to crack into the seal for that reason because they don't like the protection because its for something religious. The fundamental reality of what such a proposd law wants still remains, and what it wants simply would not be well achieved by that law if it was implemented.

 

[Arakhor]

The question then is how the Catholic Church is going to move past the sex scandals and restore faith in the seal of the confessional.

 

[Jehoshua]

I don't have an answer for that, the Church in Australia undeniably has failed massively, definitely in the past and perhaps even today, in ensuring not only that clerical crimes are dealt with appropriately once they are found out about according to the law, but also in ensuring that such persons are not ordained in the first place.

Fortunately things in both these areas have improved over the last decade, often over the top of local bishops due to higher level intervention, but there is still a lot of work to do at all levels, and a lot of recalcitrant idiots still have to be pushed out of the way of appropriate reform in this area before trust in the hierarchy and the institutional structures of the Church, both amongst faithful Catholics (who generally distrust the structures of the institutional hierarchy for other reasons, God knows I don't trust or look with favour upon my dioceses chancery and its administrative apparatus) and the public at large is restored. Hopefully the royal commission will serve as a catalyst of positive reform in these matters within the Church at large, and in particular in regards to particularly problematic areas, Newcastle-Maitland comes to mind.

 

[civ_king]

I don't have an answer for that, the Church in Australia undeniably has failed massively, definitely in the past and perhaps even today, in ensuring not only that clerical crimes are dealt with appropriately once they are found out about according to the law, but also in ensuring that such persons are not ordained in the first place.

Fortunately things in both these areas have improved over the last decade, often over the top of local bishops due to higher level intervention, but there is still a lot of work to do at all levels, and a lot of recalcitrant idiots still have to be pushed out of the way of appropriate reform in this area before trust in the hierarchy and the institutional structures of the Church, both amongst faithful Catholics (who generally distrust the structures of the institutional hierarchy for other reasons, God knows I don't trust or look with favour upon my dioceses chancery and its administrative apparatus) and the public at large is restored. Hopefully the royal commission will serve as a catalyst of positive reform in these matters within the Church at large, and in particular in regards to particularly problematic areas, Newcastle-Maitland comes to mind.

Some areas are tough to deal with, the Archdiocese for example has Archbishop Cordileone who seems rather orthodox, but the archdiocese itself has many problematic people (if a potential scandal is a mine than the archdiocese is a minefield), the only bit of good news is that none seem to have involved children.

 

[Camikaze]

Firstly, the argument with regards to consistency with other privileges. Framing the object of removing confessional privilege as being simply to 'catch more child abusers' simplifies in such a way as to miss the main point that is being sought - justice. Achieving or obtaining justice is the central aim, with protecting children being a particular instance of that aim. It is absurd to suggest that you achieve the aim of justice by undermining it! That's why the legal client relationship is a completely different creature. In the justice system, the 'one thing' of justice does trump everything else.

In comparison, the sanctity of the seal of Confession is not on the justice system's priority list. It's quite odd to suggest that the justice system should be concerned with maintaining the sanctity of the seal as equally as it should be concerned with maintaining justice. The justice system is far more concerned with protecting justice than with protecting Catholic canons of conduct, and to suggest that the legal client privilege is equivalent to the confessional privilege because they both protect something ignores the point that the justice system is not equally concerned with what they protect. Taking away one is not the same as taking the other, as is suggested, because the justice system should clearly not give nearly as much of a damn about the seal of Confession as they should about, you know, justice. Justice is kinda the justice system's thing.

It's inaccurate to describe the purpose of mandatory reporting as solely to prevent other crimes. Concealing knowledge of a serious indictable offence, or failing to report, is reprehensible behaviour in itself. If a priest heard about child abuse outside of the confessional, then we'd all agree that a failure to report is morally repugnant. Failing to report is deserving of punishment, and mandatory reporting laws apply criminal sanctions not simply as a means to coerce reporting in the hope of lessening crime, but to punish morally repugnant behaviour.

The most important point I want to make with regards to consistency however, is that even if legal client privilege is also an anomaly, or even if it is of the same character as confessional privilege, it is still more consistent to remove confessional privilege than to leave both intact. If you leave both intact, you have two exceptions to the rule (maybe there's a third, but the point is that you have a finite number of exceptions to the rule). If you take away confessional privilege and leave legal client privilege, you have one exception to the rule. The law is applied more consistently if there is one exception to it rather than two. So the argument against confessional privilege is the more consistent argument, whether it be aiming for perfect consistency, or merely greater consistency, as is suggested by the argument that legal client privilege is of the same character as confessional privilege.

Secondly, the relevance of international law (or the lack thereof). Jehoshua mentioned Tasmanian anti-sodomy laws, which were declared by the UNHRC in Toonen v Australia to be in contravention of Australia's obligations under the International Covenant on Civil and Political Rights. Crucially however, this did not make the laws repugnant and void. It was simply an embarrassment that the federal government addressed by passing legislation that did overrule the Tasmanian anti-sodomy laws. The state law was not void due to inconsistency with the treaty, but due to inconsistency with a federal law introduced in response to the UNHRC ruling.

Let's go through some case law again. As a starting point, Kioa v West (1985) 159 CLR 550, 570:

Treaties do not have the force of law unless they are given that effect by statute.

An international treaty that Australia has signed does not in itself place any limits on anything. The signing of a treaty is essentially a symbolic act. Any obligations under the treaty only become relevant when they are enacted as domestic law. Even if it is argued that customary international law is incorporated into the common law (see Brennan J at 42 in Mabo (No 2) or Kirby J at 443 in Tofilau v The Queen (2007) 231 CLR 396 for the preferable view), the common law is overridden by statute, and whilst a relevant interpretative presumption may be raised, legislative intent is supreme.

A restatement of essentially the same thing, in Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1, 70-1:

[Despite ratification, the Genocide] Convention has not at any time formed part of Australian domestic law...[71] t is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. Where such provisions have not been incorporated they cannot operate as a direct source of individual rights and obligations.

To swing back to the point about legislative intent, there is this from Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286:

The fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.

So if there is some sort of treaty that Australia is party to that for some reason would prevent mandatory reporting laws applying to Catholic priests, though being a party to it would inform statutory interpretation, that obviously wouldn't be relevant if the special exemption of Catholic priests was removed, evincing a clear intention to not abide by such a treaty.

The point about international law that might be more relevant when talking about State legislation is s 51(xxix) of the Constitution; the 'external affairs' power. The basic point of this section is that the Commonwealth can legislate in areas not otherwise within their purview if they are doing so to give effect to an international obligation. See e.g. Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (regarding the Racial Discrimination Act 1975) and Commonwealth v Tasmania (1983) 158 CLR 1 (the famous Tasmanian Dam Case). The former would probably be particularly relevant, in that the decision was based on the idea that human rights are of international concern, and so fall within the ambit of the external affairs power (the overarching point being that the external affairs power only applies when the treaty is truly international, and not just a way to work around the Constitution). So if there were some treaty preventing mandatory reporting laws for Catholic priests, and if the Commonwealth gave effect to that treaty through legislation (not simply through ratification), then the States would most likely have to act in accordance with that legislation.

To summarise, Australia can do pretty much whatever it likes with the seal of Confession. As already discussed, s 116 of the Constitution is not helpful. The States may under certain circumstances have to act in accordance with the Commonwealth if the Commonwealth has actually incorporated international obligations into the domestic law, but given what we're talking about is a national Royal Commission, that potential difficulty is pretty irrelevant to this discussion.

So unless some relevant treaty can be pointed to, alongside legislation that the Commonwealth has implemented under its s 51(xxix) powers, the point about international law seems pretty misplaced.

 

[JollyRoger]

The Church should hire Chris Hanson and randomly assign him to hear confessions Would make some great tv.