On 23 May 2019, the Western Australian Government announced plans to expand child protection reporting obligations beyond the ‘seal of the confessional’. Under proposed new laws, ministers of religion will have to report to the Department of Child Protection any belief or suspicion that a child is being abused – even if they discover the information during confession. Failure to report could result in criminal charges and a $6,000 fine.

Similar changes have been made or are underway in the Australian Capital Territory, New South Wales, the Northern Territory, South Australia and Tasmania. Those changes were welcomed by some and criticised by others, and the same is true in relation to Western Australia. Some Catholic commentators have warned that the new laws will provoke a direct conflict between state law and the Catholic system of rules known as “Canon Law.” In this article, we explain the nature of this conflict and what it means for Catholic schools.

Secular Law vs Canon Law

According to a Western Australian Government media release, the proposed changes respond to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) and involve extending existing mandatory reporting laws to cover information conveyed to priests, including during the course of a religious confession.

Mandatory reporting laws exist in all Australian states and territories and require certain persons, such as nurses, teachers and police officers, to report to child protection departments any beliefs or suspicions that a child is being abused. Some jurisdictions also have laws requiring certain people to report their suspicions to police. Until recently, many of these laws did not apply to priests hearing confession, either because priests were not included in the list of “mandatory reporters” or because there was a specific exemption applying to the confessional.

The proposed Western Australian laws would eliminate both of these exceptions. The laws would extend mandatory reporting obligations to “recognised leaders within faith communities who are authorised to conduct religious worship, services and ceremonies.” This would include priests, ministers, imams, rabbis, pastors and Salvation Army officers. In addition to this, the Western Australian Government has explicitly said that the laws will cover information gained during confession.

In response, the Catholic Archbishop of Perth, the Most Reverend Timothy Costelloe, released a statement saying that the changes would “cause great concern and distress to many people of faith, including Catholics”. But what exactly is this concern? Why is the confidentiality of the confessional considered to be so important?

In the Archbishop’s words, “the Sacrament of Penance (also called Reconciliation or Confession) is an essential dimension of our faith … Put simply, a person does not confess his or her sins to the priest, but rather to Christ who is present in and through the ministry of the priest. The priest has no right to reveal anything he hears in the confessional because in a very real sense what is revealed is made known only to God.”

The Archbishop’s language here, particularly his reference to “rights”, resembles the kind of language used in legislation. And in many ways, it is a kind of legislation – one of the oldest continuously functioning forms in the Western world.

As we noted in a previous article, Canon Law is the system of laws and legal principles enforced by the Catholic Church and its authorities. The system has all the characteristics of a mature legal system, including courts, a legal code, interpretive principles and coercive penalties. Confession or ‘Penance’ is one of the Sacraments of the Church, which gives it a special status within Canon Law. Under this Law, it is “absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”

This suggests that if a Western Australian priest learned about child sexual abuse during confession, Canon Law would forbid him to talk about it with anyone. At the same time, the new state laws would require him to report the information to child protection authorities or police. On its face, this looks like a direct conflict. However, like all forms of law, Canon Law is complex and subject to varying interpretations.

Does Reporting Child Sexual Abuse Qualify as Breaking the 'Seal of the Confessional'?

During one of its hearings, the Royal Commission put the following scenario to the Council of the Catholic Church and each of the metropolitan Catholic archbishops: if a child discloses during confession that they have been abused, could and should the priest hearing the confession report this to authorities outside the Church?

Responses were mixed. According to the Royal Commission’s Religious Institutions Report, “the various responses we received revealed a significant level of confusion and disagreement about whether the disclosure of abuse by a victim is covered by the seal of confession.” Some respondents said that if the child came to the priest for counselling rather than to confess a sin, then the priest was permitted to report the information. Others said that the priest could not report the information, but within the confession he could urge the child to seek help.

This confusion, however, applies only to situations where a victim reports abuse. In situations where a perpetrator reports abuse, the consensus is that under Canon Law the priest is forbidden to report what was said.

How Significant and Likely is the Conflict Between State or Territory Law and Canon Law?

The penalty for violating the Seal of the Confessional is excommunication from the Church. This is the ultimate sanction for a priest. Some have said that they would rather go to prison than to break the seal and risk excommunication. It is clear that for priests, breaking the 'seal of the confessional' has serious consequences.

Still, some believe that with intervention from Catholic leadership, the conflict can be resolved. In a radio interview, Perth Catholic priest and director of the LJ Goody Bioethics Centre, Father Joseph Parkinson said he was “quite hopeful that we can get priests out of the current dilemma that this law would create, but that's not going to happen today."

More controversially, Father Parkinson questioned the likelihood of the conflict arising at all, saying "I don't know of anybody in 43 years of ministry who's been a paedophile and come in and confessed paedophilia.” Similar comments were made by Archbishop Costelloe in his statement: “It seems very unlikely that child abusers will come to confession to confess their sins, which are also of course crimes. You don’t come to confession unless you have recognised the sinful nature of your behaviour, are filled with sorrow and shame because of it, and are determined never to commit such sins again. It is often noted that child abusers are notoriously unrepentant and often convinced that their actions are neither sinful nor shameful.”

On the other hand, evidence published in the Royal Commission’s Religious Institutions Report showed that many victims and perpetrators did report abuse during confession. While acknowledging that attendance at confession appeared to be declining in Australia, the Royal Commission concluded that the 'seal of the confessional' still posed a risk to children, and arguments in favour of maintaining the seal were “insufficient to outweigh” that risk.

What Does this Mean for Catholic Schools?

State or territory and Canon Law are beyond a school’s control, but risk management and child safeguarding are not. Schools might consider seeking their priest’s views on any potential conflicts when deciding whether to allow students and staff to attend confession at school.

Meanwhile, there are many practical steps that schools can take to keep children safe regardless of debates occurring elsewhere. These include implementing robust recruitment screening processes, equipping staff with child protection skills and empowering children to speak up.

Above all, schools can embed a strong safeguarding program within the culture of the school so that good policy becomes an easy, normal part of everyday life. There will always be debates about the interpretation and application of laws, but this needn’t hamper the daily business of keeping children safe in schools.