In relation to exactly what information is covered by the confessional seal, in Case Study 50 witnesses provided divergent evidence. One matter on which there was significant divergence was whether a child penitent’s disclosure that they were being sexually abused by an adult would be subject to the seal or not. On the one hand, we received evidence from Archbishop Fisher that if a child penitent confessed their sexual abuse by an adult to him that, ‘I believe I’m bound by the seal of confession not to repeat it’. On the other hand, Dr O’Loughlin wrote in a précis of evidence to us that, ‘The confessional seal applies only to the confessing person’s own sins. Not to those of anyone else.’ Bishop Curtin told us that, in his view, a child telling a priest of their sexual abuse by an adult would not constitute a confession of the child’s sin and therefore not fall within the confessional seal.
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On the recommendation of the Doctrine Commission of the Anglican Church, in 2014 the General Synod of the Anglican Church of Australia voted to amend its Canon Concerning Confessions 1989 so that the canonical requirement of absolute confidentiality would no longer apply to religious confessions of serious crimes and other acts that have led, or may lead, to serious or irreparable harm. The Doctrine Commission of the Anglican Church has described this Royal Commission as having provided the context for the proposed changes.
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In respect of religious confessions, section 127 of the Uniform Evidence Act grants a specific privilege from the general requirement to give evidence in court proceedings. The privilege applies in the Australian Uniform Evidence Act jurisdictions – the Commonwealth, Victoria, New South Wales, Tasmania, the Australian Capital Territory and the Northern Territory.
Section 127(1) of the Uniform Evidence Act provides:
A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.
The privilege under section 127 is absolute.
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Mabey writes that the commonly held view is that there is no privilege for priests or penitents under common law in Australia. Also, in 1993, the Western Australian Law Reform Commission stated that it appeared there was no common law privilege for priests in relation to confidential information disclosed by a penitent, including in religious confession. There is no apparent basis for suggesting that the common law in Australia has developed such a privilege since then.
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Our inquiry has demonstrated the very grave harm caused by child sexual abuse, with the impacts of such abuse often reverberating for decades or even a whole lifetime. As noted above, child sexual abuse is a crime and should be reported to the police. Our inquiry has also demonstrated the significant risk that, if perpetrators are not reported to police, they may continue with their offending. Reporting child sexual abuse to the police can lead to the prevention of further abuse. In relation to the Sacrament of Confession, we heard evidence that perpetrators who confessed to sexually abusing children went on to re-abuse and seek forgiveness again.
In this context, we have concluded that the importance of protecting children from child sexual abuse means that there should be no exemption or privilege from the failure to report offence for clergy who receive information during religious confession that an adult associated with the institution is sexually abusing or has sexually abused a child.
In this respect, we note the reasoning of the Doctrine Commission of the Anglican Church in Australia to its General Synod in recommending the practice of absolute confidentiality be reconsidered for confessions of serious crimes such as child sexual offences and other acts risking serious and irreparable harm. The Doctrine Commission considered that the pastoral priority in all matters of abuse must rest with victims and potential victims of abuse.
We also note that the leadership of the Catholic Church, both in Australia and internationally, has publicly stated that protecting children from harm is an absolute priority. In its submission to Case Study 50, the Truth Justice and Healing Council included a statement of commitment by the leadership of the Catholic Church in Australia. The statement said:
The leaders of the Catholic Church in Australia recognise and acknowledge the devastating harm caused to people by the crime of child sexual abuse. ... The leaders of the Catholic Church in Australia commit ourselves to endeavour to repair the wrongs of the past, to listen to and hear victims, to put their needs first, and to do everything we can to ensure a safer future for children.
In his evidence to the Royal Commission in Case Study 50, the Bishop of Parramatta, Bishop Vincent Long Van Nguyen, gave evidence that, ‘if the Church is a good global citizen, then it has to show that the safety and protection of the innocent children must be of paramount interest, of absolute priority’.
In a statement on 22 March 2014 announcing the establishment of the Pontifical Council for the Protection of Minors, Pope Francis said that:
The effective protection of minors and a commitment to ensure their human and spiritual development, in keeping with the dignity of the human person, are integral parts of the Gospel message that the Church and all members of the faithful are called to spread throughout the world. Many painful actions have caused a profound examination of conscience for the entire Church, leading us to request forgiveness from the victims and from our society for the harm that has been caused. This response to these actions is the firm beginning for initiatives of many different types, which are intended to repair the damage, to attain justice, and to prevent, by all means possible, the recurrence of similar incidents in the future.
The commitment to the safety of children is also set out in the Statutes of the Pontifical Commission for the Protection of Minors, Article 1§2 of which says that ‘The protection of minors is of paramount importance’.
As set out in section 16.6.2 above, in our consultations and public hearings, a number of organisations and individuals argued in favour of exempting or privileging communications in religious confessions of child sexual abuse from reporting obligations.
We have carefully considered these arguments and have concluded that they are insufficient to outweigh the risk to children of granting an exemption from the failure to report offence.
Arguments presented to us include that:
• requiring clergy to report information disclosed during confession would be in breach of the principle of freedom of religion
• the religious confessions privilege is similar in nature to legal professional privilege and should operate similarly to protect communications between a priest and a penitent
• there would be little utility in imposing a reporting requirement, as religious confession is infrequently attended and the practice of confession is such that information given about child sexual offences would not be of use to the police
• perpetrators of child sexual abuse are unlikely to attend religious confession anyway; however, in the face of a reporting requirement, perpetrators would cease to attend confession and would be unable to access a source of guidance and contrition
• priests would be unlikely to adhere to a reporting requirement, and there may be subsequent damage to the reputation of the legal system
• a reporting requirement is inconsistent with the privilege contained in the Uniform Evidence Act.
Freedom of religion
Submissions to the Royal Commission argued that any intrusion by the civil law on the practice of religious confession would undermine the principle of freedom of religion.
We heard that the Sacrament of Confession and the confessional seal are matters of very serious importance to the Catholic faith in particular and that disclosure by clergy of the content of a confession would interfere with a person’s inner thoughts and private communication with God.
We acknowledge the submissions and evidence we received that a civil law duty on clergy to report information learned in religious confessions, even of child sexual offending, would constitute an intrusion into the religious practice and that complying with that obligation would raise serious issues of conscience for Catholic clergy. We accept this would be the case for any faith in which clergy are required by that faith’s teachings or particular laws to keep religious confessions confidential.
However, the Royal Commission does not accept that, as a consequence, communications of sexual offences against children made in religious confession should be protected by the civil law.
When considering whether clergy members should be exempt from the failure to report offence, the recognition of the right to freely practise one’s religious beliefs must be balanced against the right of children to be protected from sexual abuse.
In a civil society, it is fundamentally important that the right of a person to freely practise their religion in accordance with their beliefs is upheld. However, that right is not absolute. This is recognised in article 18 of the International Covenant on Civil and Political Rights on the freedom of religion, which provides that the freedom to manifest one’s religion or beliefs may be subject to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
Although it is important that civil society recognise the right of a person to practise a religion in accordance with their own beliefs, that right cannot prevail over the safety of children. The right to practise one’s religious beliefs must accommodate civil society’s obligation to provide for the safety of all. Institutions directed to caring for and providing services for children, including religious institutions, must provide an environment where children are safe from sexual abuse. Reporting information relevant to child sexual abuse to the police is critical to ensuring the safety of children.
The Royal Commission has learned that people who commit sexual offences against children are often repeat offenders. We heard of many instances where, if adults who learned of sexual offences being perpetrated against children in an institution had informed police, further children within the institution may have been protected from sexual abuse.
If clergy are exempt from reporting information they learn in religious confession that an adult associated with their religious institution is committing child sexual offences, civil authorities may not receive information enabling them to intervene and remove an abuser’s opportunity to abuse in an institution that provides them with access to children. We are satisfied that carries a risk to the safety of children.
Religious confessions privilege and legal professional privilege
We heard arguments that the religious confessions privilege is similar in nature to legal professional privilege and should operate similarly to protect communications between a priest and a penitent.
Specifically, we heard that, under legal professional privilege, clients can obtain advice free of fear of prejudicial treatment, whereas in the confessional the penitent seeks forgiveness without fear of social stigma.
We do not agree that the bases for the legal professional privilege and the religious confessions privilege are comparable. There is a fundamental difference.
Legal professional privilege operates within the context of the civil law system to protect communications between legal advisers and their clients from being disclosed without the permission of the client. The purpose of the privilege is to sustain the rule of law, in that the fair operation of the civil legal system requires that all citizens should have access to legal advice.
The confessional seal obliges a clergy member not to reveal what a penitent tells them in religious confession, the primary purpose of which is to obtain forgiveness or absolution for sins confessed. A religious confession privilege protects the practise of those who hold particular religious beliefs from the operation of the civil law.
We acknowledge that one of the elements of religious confession in the Catholic Church is contrition, or sorrow for the sin committed, along with the intention of not sinning again.
However we received evidence, specifically from psychologists who have worked with perpetrator priests, of perpetrators confessing to child sexual abuse, receiving absolution and then proceeding to offend again. We heard that the process of attending confession itself may have enabled their offending to continue. In this manner the confessional may facilitate breaches of the civil law rather than enhance its operation.
Given the fundamentally different purposes of these privileges, we do not accept the argument that the religious confessions privilege should operate in a similar manner to legal professional privilege.
Declining attendance at confession and the practice of confession
We also received evidence that, at least in the Catholic Church, the practice of attending religious confession is declining. The implication is that disclosures about child sexual abuse in religious confession is a marginal issue and that any obligation to report such information will have limited practical effect.
The practice of religious confession is not limited to the Catholic faith. We do not accept that the declining practice of attending confession in the Catholic Church should determine this issue.
We have heard evidence and received submissions that the concepts of repentance and forgiveness as practised in the rite of confession remain central to the Christian tradition and the practice of the Catholic faith.
We have also heard evidence from a psychologist who studied clergy perpetrators in the Catholic Church that the Sacrament of Confession was a key forum that they used to resolve the guilt that arose from their offending, by obtaining forgiveness.
Based on the evidence before us, we consider that, for a perpetrator of faith, religious confession remains a forum in which abuse may be disclosed. The non-reporting of such information presents an unacceptable risk of harm to children. Further, we received a submission from the Truth Justice and Healing Council that confirmed that children continue to participate in the Sacrament of Reconciliation in Catholic archdioceses and dioceses through parishes and schools. We have also received evidence that children have used the confession to disclose their experiences of abuse.
It does not follow that a generally declining attendance at confession in the Catholic Church means that there is no utility in requiring clergy to report information about child sexual abuse received in religious confession. It remains possible that information regarding child sexual abuse could be disclosed during religious confession, and in our view such information should be subject to reporting requirements.
We also considered the argument that information provided in religious confessions might not be useful to police in light of the practice in some faiths of confessors not knowing the identity of the penitent and that a penitent may not provide the details of when or where their offence was committed.
We are satisfied these concerns are addressed in the targeted application of the failure to report offence. Where the elements of the reporting obligation are met, reporting serves the purpose of enabling police to consider the report in the context of all the information they know rather than relying upon a religious confessor’s determination of whether it is useful to them.
Perpetrators’ attendance at religious confession
We also received submissions to the effect that requiring clergy to report information learned during confession would have limited utility, as perpetrators of child sexual abuse are unlikely to attend confession.
Those submissions are not supported by the evidence before us. As addressed above:
• We heard of perpetrators confessing their offending against children and, in some cases, obtaining absolution and abusing again.
• Dr Robinson’s evidence was that of the 60 to 70 Catholic clergy child sex offenders she treated at Encompass Australasia, a significant number told her that they confessed their offending.
• For Catholic clergy perpetrators of abuse in particular, Dr Keenan concluded that her research demonstrated that the confessional was a key forum used to resolve guilt in relation to offending, as its secrecy enabled perpetrators to externalise the issue of their abusing in safety. Dr Keenan concluded that the act of confessing played a role in enabling some of those perpetrators’ abusing to continue.
We were also told that perpetrators would not attend religious confession if there was an obligation on clergy to report information received about child sexual abuse during religious confession, so imposing such an obligation would deny perpetrators a source of guidance and contrition as well as reduce opportunities for perpetrators to be persuaded to report themselves to police.
However, in our work we have learned that perpetrators of child sexual offences are often repeat offenders and that the intervention of civil authorities is required to prevent their offending. We accept and acknowledge that religious confession serves a fundamentally important purpose for those who practise it. However, we do not accept that the guidance or encouragement to self-report that may be offered by confessors during religious confession is sufficient to protect children from the risk of harm presented by child sexual abusers seeking absolution for their actions.
In reaching this conclusion, we have given weight to the evidence before us of psychologists working with clergy perpetrators that the act of attending confession was, for some of them, part of a pattern of continued offending, because after confessing they would feel a degree of absolution. One of those psychologists, Dr Robinson, told us that in her experience she saw that pattern in older rather than younger clergy. However, it is possible that a clergy perpetrator of any age may attend confession, seek absolution and subsequently reoffend.
Our conclusion is also informed by the evidence of a clergy member that he would be constrained from taking action if a penitent perpetrator did not report themselves to authorities after he made absolution dependent upon self-reporting. That witness conceded that this would likely mean the abuse of a child would continue.
The risk to children of perpetrators of child sexual abuse going unchecked, or religious confession enabling a pattern of ongoing offending, is not displaced by the uncertain gain of perpetrators receiving guidance or possibly being persuaded to report to the authorities in religious confession.
It is important to note that our recommendation is not limited to communications about abuse made by perpetrators in confession. Clergy should also report information they learn in religious confession from children being sexually abused or from third parties, where the elements of the failure to report offence are enlivened.
Priests’ adherence to the confessional seal
A number of individuals and organisations told us that Catholic priests would not break the confessional seal even in the face of a reporting obligation. Several individual priests told us that they would not break the confessional seal even in circumstances where they held information that indicated that abuse might be ongoing. The protection of children from sexual abuse requires that communications made during religious confession are not exempt from the obligation to report to police. The suggestion that a group of people who would be subject to a reporting obligation may not comply with that obligation is not sufficient reason to exempt them from that obligation.
We are not persuaded by the argument that the potential prosecution and conviction of a Catholic priest for failing to report to the police information relating to child sexual abuse received in religious confession would undermine respect for the court system. We do not believe that the reputation of the courts would diminish by their enforcing such a law regardless of the occupation of the defendant.
The Truth Justice and Healing Council submitted that it would be futile for the Royal Commission to interfere with the seal of confession, as the Catholic Church in Australia has no power to change the seal of its own volition. We note that our recommendation that no exemption be made for religious confessions from the failure to report child sexual abuse offence is made to state and territory governments rather than the Catholic Church.
We acknowledge that if this recommendation is implemented then clergy hearing confession may have to decide between complying with the civil law obligation to report and complying with a duty in their role as a confessor. It is a matter for each faith within which a confessional seal operates to consider whether that practice could or should be changed. As noted above in section 16.4.2, the Anglican Church in Australia has already taken some steps to alter the operation of the confessional seal in the context of the Royal Commission’s work regarding the sexual abuse of children.
The evidentiary privilege
As set out above, some categories of communications are exempt, or privileged, from disclosure by compulsion in courts of law. These are evidentiary privileges created both under legislation and by the common law.
In some Australian jurisdictions, a religious confessions privilege or exemption has been created by legislation and operates so that clergy can refuse to disclose to a court in evidence the fact or content of a religious confession. This privilege applies in the Australian Uniform Evidence Act jurisdictions – the Commonwealth, Victoria, New South Wales, Tasmania, the Australian Capital Territory and the Northern Territory.
Previous inquiries, including the Cummins Inquiry and the inquiry of the Victorian Parliament Family and Community Development Committee which led to the Betrayal of Trust report, have concluded that the evidentiary privilege is appropriate. In particular, the Cummins Inquiry concluded that communications about the content of a religious confession should be exempt from failure to report offences, as the treatment of such information should be consistent.
We are not persuaded that it is necessary to provide an exemption from a failure to report offence because of the existence of an evidentiary privilege. We note that reporting obligations in respect of child sexual offences seek to prevent future harm to children, whereas evidentiary privileges prescribe how matters are to be dealt with in court proceedings.
While we believe that there should be no exemption for religious confessions from the operation of the failure to report offence, we make no recommendation beyond this in relation to the religious confessions privilege in Uniform Evidence Act jurisdictions more generally. To do so would go beyond our Terms of Reference. Some state or territory governments could, if minded, remove that privilege so that the fact and content of religious confessions is compellable as evidence in proceedings against, for example, perpetrators of child sexual abuse.
