by Richard Scorer
A mandatory reporting law imposes a legal obligation on specified individuals or groups, usually known as “mandated reporters”, to report known or suspected cases of abuse to the statutory authorities. We don’t currently have such a law in England and Wales, where it remains entirely legal, for example, for a priest to discover that a child or vulnerable adult is being raped, and to do nothing about it. IICSA (the Independent Inquiry into Child Sexual Abuse) said that this needs to change, and recommended that a mandatory reporting law be introduced to cover ‘regulated’ settings, including churches. IICSA’s proposal has been criticised as inadequate (in my view justifiably), but the principle of mandatory reporting is right, as Justin Welby agreed in his evidence to IICSA. However, a further question is whether there should be a religious exception to mandatory reporting to uphold the absolute seal of the confessional; this issue has provoked more controversy.
Some church groups have responded with a flat rejection of any exception to the confessional seal. In response to the recent government consultation on mandatory reporting, The Society (aka Forward in Faith, representing traditionalist, conservative Anglo Catholicism in the Church of England) argued that “Confidentiality is an essential ingredient of Confession because we regard the conversation to between Christ and the penitent and it must therefore remain ‘sealed’ by the sacrament. To qualify it in certain circumstances would be to undermine the sacrament altogether and would represent a major theological problem for us.……….We therefore regard the retention of the Seal of Confession to be a matter of religious freedom and conscience…..these are deeply held matters of religious faith and conviction, based on many centuries of practice throughout the world”.
Of course, clergy work in a pastoral role and as such, wish to be persons to whom confidences can safely be entrusted. The question is whether clergy should be entitled to claim absolute confidentiality, including in respect of information about abuse. This question has to be answered in the light of the known recidivism of sex offenders: a failure to act on information will frequently put others at risk. Professionals handling sensitive information do not generally enjoy absolute confidentiality. As a lawyer, my clients enjoy the protection of legal professional privilege in our dealings, and I have a duty to uphold this. However, this is not absolute. For example, if I know or reasonably suspect that a client might be engaged in money laundering, I have a legal duty to report this to the authorities, and I can go to prison if I don’t; this duty overrides client confidentiality. Similarly in many jurisdictions mandatory reporting laws apply to the medical profession, indeed the earliest mandatory reporting laws in the 1960s were specifically aimed at physicians. The question, then, is whether clergy should be treated as an exception if the religion deems that the seal of the confession applies.
There are numerous problems with Forward in Faith’s approach. To begin with, at least so far as the Church of England is concerned, an appeal to ‘centuries of practice’ is a rather doubtful basis for a defence of an unqualified seal. Historically, the confessional seal in the Church of England arises from Canon 113 of 1603. Canon 113 (‘Minister may Present’) concerned the suppression of evil-doing by the presentment to the Ordinary by parsons, vicars or curates of crimes and iniquities committed in the parish. The canon concluded with a proviso relating to the seal of the confessional:
“Provided always, That if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him: we do not in any way bind the said minister by this our Constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same) under pain of irregularity”.
As the ecclesiastical lawyer Christopher Grout has pointed out, the wording of the proviso to Canon 113 is important. The proviso applies only for the ‘unburdening of (the penitent’s) conscience, and to receive spiritual consolation and ease of mind’; this wording suggests that it applies only where penitence is genuine. Also, for the proviso to apply, the sins confessed to the minister must be ‘secret and hidden’. This suggests that the proviso may not apply if what was confessed to the minister was already known to him or – at least arguably – others. It also seems that the proviso may not have been legally binding upon the minister (‘we do not in any way bind the said minister by this our Constitution’), although a breach would result in disciplinary action (‘pain of irregularity’) . Most importantly, an exception to confidentiality exists insofar as ‘they be such crimes as by the laws of this realm his own life may be called into question for concealing the same’. Interpreted literally, this ‘high treason’ exception permits the minister to reveal what he or she has been told if it is the type of crime concealment of which could itself constitute a criminal offence for which the lawful punishment is execution. Because the death penalty has been abolished in the UK this exception is no longer applicable, but its inclusion in the proviso indicates that the seal of the confessional was not recognised as inviolable in 1603. This reflects the political reality of the time, in which Protestant England was under mortal threat from Catholic Spain. But if church law could accommodate an exception to the seal of the confessional in 1603 and for hundreds of years thereafter, because public protection required it, it can obviously do so again.
A redrafted canon and proviso which removed the words in brackets and sought to strengthen the principle of the seal of the confessional was proposed in 1947 by the Archbishops’ Commission on Canon Law but was never promulgated. It appears that legal advice was received that a new canon in this form was unlikely to receive the Royal Licence, because the implication of this more absolutist canon was that clergy would now have the privilege of not being obliged to disclose information received in the confessional, if called to give evidence in court, and it is very doubtful that such a privilege ever existed under English secular law. Rather than risk a refusal, it was decided to retain the proviso to the old Canon 113, whilst repealing the rest of the code of 1603. Resolutions were passed in the in support of the seal of the confessional at the Convocations of Canterbury and York in 1959, but Acts of Convocation have moral force only, and are not law. Historians have observed that the canon of 1603 represents a watering down of pre Reformation Roman Catholic ecclesiastical law in which secrecy was seen as the essence of confession, and it clearly is. It is certainly a weak foundation on which to build an argument that in the Church of England the seal of the confessional has always been inviolable.
As Canon Judith Maltby pointed out recently in a letter to the Church Times, the Forward in Faith paper is also thin on evidence. As Maltby noted, it entirely fails, for example, to grapple with the evidence amassed by Dr Marie Keenan who worked with clerical sex offenders in Ireland; evidence which relates to the Catholic Church, but which has obvious implications for debates about the confessional seal in any religious context. Keenan spent decades interviewing clerical sex offenders and unpicking the cognitive distortions underpinning their offending, and the ways in which the culture of the Catholic Church itself contributes to the problem. Keenan found that eight of the nine clerical sex offenders who participated in her main study had disclosed their sexual abuse of children in confession. The confessional, it transpired, was their main place of respite and support from their “emotional conflicts and loneliness”. Several of them explained to her how they used the confessional to cope with their abuse of children, and thus to facilitate it. As one told her: “The only ones who would have sensed what I was going through were my confessors – they were carefully selected by me, and time and time again I recounted my temptations and falls, my scruples and shame. They after all were bound to a strict code of secrecy. I was known personally to them all. They were my lifelines.”
As Keenan sets out, for these clerical sex offenders, the confessional became a secret conversational space, not only of forgiveness but also of “externalising” the issues “in safety”. One said: “After each abusive occurrence I felt full of guilt and at the earliest opportunity I sought to confess and receive absolution… There were times of guilt, shame and fear that I would get caught but I used confession to clean the slate. I minimised everything in this area… convincing myself that I would never do it again, especially after confession.”
Tellingly, one recalled: “In all the times I confessed to abusing a minor, I can only remember one occasion when I got a reprimand or advice not to do this again.” Thus “in a strange way the sacramental Confession let us off the hook rather lightly, and perhaps allowed us to minimise what was actually happening… Not confronted adequately, we experienced only a short duration of guilt and no sense of responsibility for how we hurt others, only the alleviation of our own guilt and shame.”
Keenan observed: “Receiving confession played a role in easing the men’s conscience in coping with the moral dilemmas following episodes of abusing, and it provided a site of respite from guilt.” She concluded that these offenders’ stories “give rise to important observations regarding the function of confession”. It was “notable that only one confessor on one occasion, among the many times that the men disclosed their abusive behaviour in confession, pointed out the criminal nature of the sexual abuse”. Thus, Keenan concluded, “the very process of confession itself might therefore be seen as having enabled the abuse to continue not only in how the men used the secrecy and safety of the confessional space to resolve the issues of guilt, but also in the fact that within the walls of the confession, the problem of the sexual abuse of children was contained”. She also observed: “While the Catechism of the Catholic Church (1994) makes clear that the seal is a fundamental aspect of the theology of the sacrament of confession, and it is not the function of the confessor to judge the confessant, nonetheless no pathway existed for this important information of abuse by clergy, which was emerging in the confessional, to flow back into the system, to alert the church hierarchy to a growing problem… The fact that the problem was individualised at the level of the confessional is an important feature of abuse by clergy.”
Keenan’s research is multi-layered and nuanced, but it certainly suggests that far from creating an opportunity for abuse to be discussed and challenged, the confessional can operate as a forum in which abuse is forgiven and the slate wiped clean. Far from creating an opportunity to tackle clerical sex abuse, the seal of the confessional can be an enabler of it. This research, and the known cases in which a failure to act on disclosures of abuse in the confessional allowed further abuse to occur (I wrote about some of the Catholic cases in my book Betrayed) cannot be ignored; those who seek to defend an unqualified seal need at a minimum to engage with the evidence, something the Forward in Faith document entirely failed to do.
What should the Church of England do now? IICSA has recommended mandatory reporting, and the government has endorsed the idea in principle, although its insistence on a further consultation after an 8 year public inquiry suggests a desire to delay implementation. The Labour Party has long been committed to mandatory reporting, as has Keir Starmer personally since his Victim’s Law report in 2015. So mandatory reporting is almost certainly coming. And IICSA was categorical in rejecting any religious or confessional exception to it. As its final report observes:
“Some core participants and witnesses argued that a mandatory reporting law ought to provide exemptions for some faith-based settings or personnel and, in particular, in the context of sacramental confession. As the Inquiry has already noted, the respect of a range of religions or beliefs is recognised as a hallmark of a liberal democracy. Nonetheless, neither the freedom of religion or belief nor the rights of parents with regard to the education of their children can ever justify the ill-treatment of children or prevent governmental authorities from taking measures necessary to protect children from harm. The Inquiry therefore considers that mandatory reporting as set out in this report should be an absolute obligation; it should not be subject to exceptions based on relationships of confidentiality, religious or otherwise”.
This is right. As the Australian Royal Commission also concluded, the free practice of religion is not an absolute right and can be reasonably abridged to protect the “fundamental rights and freedoms of others”; and mandatory reporting is a paradigm case of protection of the vulnerable needing to take precedence over a religious right (and rite).
In this context, rather than a die-in-the-ditch approach, the Church of England and other religious organisations need to think creatively about reforming church law on the confessional to accommodate the reality and necessity of mandatory reporting. In IICSA some senior Church of England figures seemed open to this, others not. The most sensible position was articulated by Canon Dr Rupert Bursell, a distinguished ecclesiastical lawyer who also happens to be a child abuse survivor. He pointed out that reporting requirements already exist in relation to terrorism and money laundering, with no exemption for information imparted in the confessional and, as he put it, these duties exist “whether the Anglo Catholics (ie in the Church of England) like it or not, and whether they are aware of it or not”. The same principle, he argued, should apply to child abuse. Church of England guidelines on clergy conduct published in 2015 state that if the penitent discloses a serious crime, but refuses to report it to the authorities, the priest should withhold absolution. This approach is sometimes presented as a solution by those seeking to preserve the confessional seal in the face of mandatory reporting of child abuse, but of course it is no solution at all, since mandatory reporting means exactly that: the priest has to report, irrespective of whether absolution is granted or not.
A more progressive approach is the one adopted by the Anglican Church in Australia, a country which has strong secular mandatory reporting laws in most states and territories. In 2014 and 2017 the General Synod of the Anglican Church of Australia passed new canons, the first of which created an exception to the principle of confessional confidentiality in relation to a “grave offence” (meaning child abuse) by providing that the church minister
“is obliged to keep confidential the grave offence so confessed only if he or she is reasonably satisfied that the penitent has reported the grave offence to the police and, if the person is a church worker or a member of the clergy, to the Director of Professional Standards or other relevant Church authority”.
The second canon expanded the definition of “grave offence” to include abuse of a vulnerable person, and expanded the exceptions to confidentially to include non-criminal conduct that is reasonably believed to put a vulnerable person at risk of significant harm. The canons are only effective at diocesan level if passed by diocesan synods; my understanding is that all Anglican dioceses in Australia have adopted the first one, and most have adopted the second. Personally I am not entirely persuaded by the language of the canons which leave the decision on reporting to the minister, albeit with the benefit of legal advice if required. In IICSA I criticised Church of England safeguarding procedures which were insufficiently directive in requiring reporting, using the word ‘should’ in relation to reporting instead of ‘must’. The same point could be made about these canons, which are designed to leave the reporting decision to the conscience of the minister. But the bigger point is that these canons disapply the seal when it comes to knowledge and reporting of child abuse, and as such remove any direct conflict between church law and secular mandatory reporting.
This is to be commended, and I hope that other religious organisations will follow suit. The idea that the seal of the confessional is sanctified and justified by centuries of tradition entirely misses the point. Clerical sex abuse of children has been going on for centuries too, but has only recently been exposed. Its exposure means that centuries of tradition – if it can even be characterised as such, which in the Church of England is doubtful – are no longer a reliable guide to future action. When the seal of the confessional stands in the way of action to protect children, this is simply a religious privilege too far; churches would do well to recognise that reality, and engage sensibly in a process of change.