This is the second part of a two part series exploring the link between religious confessions and child protection reporting. Part one considered responses to the Royal Commission's recommendations concerning religious confessions, and assessed how they are dealt with under the laws of Australian jurisdictions. Part two analyses how Australian law interacts with Church law, and outlines how the Royal Commission's recommendations may be reconciled by religious institutions and schools.

The Dual Legal System for the Clergy

Child protection reporters are, generally speaking, protected from civil or criminal liability, or potentially professional breaches, that result from making a report in good faith. To the broader secular community, this protection may be considered sufficient to easily integrate the obligations of the clergy with those of the child protection system. But a separate system of law – Canon Law – presents a different view of such a change.

Canon Law is the system of laws and legal principles enforced by the Catholic Church and its authorities. It is one of the oldest continuously functioning legal systems in the Western world, and has all the characteristics of a mature legal system, including courts, a legal code, interpretive principles and coercive penalties. Laws are based directly or indirectly upon divine law or natural law, and derive their authority from the Pope or a delegated legislator depending on whether they are universal or particular laws.

The Sacrament of Penance (confession) is one of the sacraments of the Church. Everything that takes place within confession is considered secret, which is known as the Seal of the Confessional. Within the scope of Canon Law, confessors are not allowed to reveal what someone said during the confession, or even if the person had been to confession at all. It is also stipulated that anyone else who happens to overhear a confession, such as an appointed interpreter, is also required to maintain the seal.

The Code of Canon Law states that it is “absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason”. The penalty for violating the Seal of the Confessional is excommunication (expulsion from the Church). This is the ultimate sanction for a priest, and reportedly would only be reversible by the Pope himself. Penalties for breaching the seal have existed for many hundreds of years, with priests previously commenting that they would rather go to prison than to break the seal and risk excommunication.

However, differing views on the scope of the confession, and the Seal, have been presented to the Royal Commission, suggesting a lack of uniformity in individual understanding of its practical boundaries. When asking a religious panel if they would be able to break the Seal if a child making confession told them that they were being abused, two said that as the sin was not that of the child making confession, it would not fall within the Seal of the Confessional. Others took the view that the Seal bound them to not repeat the disclosure, but that within the confession, they can urge the child to seek help.

As discussed in the Economist, the Church has faced a dilemma around the world on whether to retain religious immunities or commit fully to child abuse investigations by state authorities, a dilemma which in many ways has played out differently between countries. It was suggested that whatever is decided by the Vatican "about the future of its legal system, it won't be a one-size-fits-all answer".

Where To From Here: Reconciling the Confession

Federal Attorney-General Christian Porter has stated that all states and territories are urged to follow the lead of SA as part of their response to the Royal Commission, with Prime Minister Malcolm Turnbull specifically pressuring churches to make child safety a priority. Mr Porter has commented that SA’s legislation would be “a potential model for state harmonisation through the Council of Attorneys-General”. This may suggest that other jurisdictions may soon also adopt child protection reporting laws which create a legal compulsion for the clergy.

In response, Archbishop Mark Coleridge said there had been “no compelling evidence” that the legal abolition of the Seal of the Confessional would help to protect children, and stated that protecting children and upholding the integrity of sacraments were not “mutually exclusive”.

The significance of this dichotomy between the two legal systems may come down to how religious institutions themselves respond to the Royal Commission’s recommendations. One of the recommendations was that the Australian Catholic Bishops Conference clarify whether:

• information received from a child during the sacrament of reconciliation that they have been sexually abused is covered by the Seal of the Confessional
• if a person confesses during the sacrament of reconciliation to perpetrating child sexual abuse, absolution can and should be withheld until they report themselves to civil authorities.

Another recommendation states that religious institutions with a rite of religious confession for children should implement a policy that requires the rite only be conducted in an open space within the clear line of sight of another adult. This policy would specify that, if another adult is not available, the rite of religious confession for the child should not be performed.

Each jurisdiction that has acted upon the Royal Commission’s recommendations has stated that this recommendation is outside the scope of their response, placing the responsibility for action squarely upon religious institutions.

The extent to which the Catholic Church will implement the recommendations of the Royal Commission may be made apparent by the release of the Truth Justice and Healing Council’s Royal Commission assessment report, which was delivered to bishops in March 2018. The Catholics for Renewal group has urged bishops and Catholic leaders to regard this report as a “white paper” for reform. It appears that the Church leadership is yet to make a decision on whether this report will be publicised.

However, the Vatican itself may also be considering whether universal laws could be made or adjusted in response to the Royal Commission.

Former Melbourne Archbishop Denis Hart has suggested that Australia's bishops have asked the Holy See - the government of the Roman Catholic Church - to clarify the extent of the Seal of the Confessional and what it includes. The Vatican has also released a statement commenting that the Final Report "deserves to be studied seriously". Any Vatican response may relate to the work of the Pontifical Commission for the Protection of Minors, instituted by Pope Francis on 22 March 2014, whose main purpose is to propose initiatives to protect children from child sexual abuse within the Church.

What Does All This Mean for Schools?

Schools and their staff are already subject to child protection reporting laws, with many jurisdictions also imposing an organisational duty to protect children from abuse. The creation of a child safe environment and introducing a comprehensive child protection training regime for staff are two crucial ways in which schools can ensure they are continuously complying with child protection laws.

These legal requirements also exist for schools that have a religious or spiritual focus, in particular Catholic schools; they will have additional obligations if the clergy are uniformly added to the list of mandatory reporters. But as stated by Archbishop Coleridge, child safety and sacramental integrity need not be mutually exclusive concepts.

The best approach for these schools will be to assess and determine where their obligations lie with respect to both Australian child protection laws and Canon Law, and implementing a Child Protection Compliance Program that accounts for all compliance requirements (both Canon and statutory) and clearly identifies the scope of employee obligations. By taking these steps, such schools may be better positioned to respond to the recommendations of the Royal Commission, increasing their capacity to uphold both child safety and religious sanctity.