The Report of the Independent Inquiry into Child Sexual Abuse (IICSA) published in October recommends “mandatory reporting” of child sexual abuse, explicitly including under this requirement the breaking of the seal of the confession: that is, revealing things disclosed during the Sacrament of Penance, something considered so serious for Catholic priests that it leads to automatic excommunication. The Report’s recommendation follows similar moves in parts of Australia: the states of Victoria and Western Australia have passed laws seeking to oblige priests to disclose the content of confessions if these include allegations of child sexual abuse.

It is difficult to avoid the impression that Australian state legislators and the IICSA, like the Australian Royal Commission before it, are more concerned with striking a pose than with the practicalities of child safeguarding. Their highlighting of the seal confession, implicated in precisely zero cases of child sexual abuse around the world, is reminiscent of their grandstanding demands during their gathering of evidence to see persons and documents from the Holy See, without bothering with official channels.

This will be music to the ears of sex abusers

As the IICSA Report acknowledges, the idea of a legal obligation of “mandatory reporting” of child sexual abuse encompasses a wide range of options. No jurisdiction imposes this obligation on everyone. Instead, it is attached to defined categories of persons, such as the police, social workers, those “working with children” or “in a position of trust”, however these might be defined. Then there is the question of the circumstances in which the obligation arises: from mere suspicion, the possession of clear evidence, or actual knowledge. Finally, there is the issue of to whom the report should be made. It should be noted at the outset, therefore, that there is no reason in principle why priests as a group, or confession as an institution, could not be excluded from the scope of the proposed law. 

Mandatory reporting, however it is specified, is a way of strengthening rules which already exist. Under existing legislation, as the Report explains, organisations such as schools must have safeguarding procedures which include reporting, but this does not add up to a legal obligation on individual members of staff. More generally — though the Report does not go into this — there are legal obligations to report crimes, failing to comply with which can make witnesses accessories to the crimes themselves.

Few would object to making the non-legal obligation to report child sexual abuse, as it applies to teachers, social workers and the police, into a legal obligation, even if it is not clear how much difference this would make. The difficulty arises in imposing an obligation of mandatory reporting upon those who receive information in a context strictly marked out as confidential. The Report acknowledges this:

85. In the delicate balance between the need to provide an individual child with confidential advice and support (whether medical, psychological, legal or social) and ensuring child sexual abuse is prevented, it is essential to recognise that there are some circumstances where privacy ought to be protected and some where prevention is paramount.

The Report goes on to perform a particularly delicate balancing act, by adding: “the Inquiry also recognises that sexual activity between children below the legal age of consent may be consensual or non-abusive.” This will be music to the ears of sex abusers everywhere, who will be wondering why, if the Inquiry thinks the rape of a 13-year old by (say) a 15-year old “may be consensual or non-abusive”, what principle in law or logic rules out the “consensual or non-abusive” rape of minors by adults?

On the other hand, when the Report comes to the seal of confession, questions of “delicate balance” are left far behind:

109. 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.

The idea that freedom of religion could be invoked to “justify the ill-treatment of children” is a remarkable rhetorical flourish. Who, exactly, has suggested this? Was it put forward by the “core participants” referred to? 

No — not, at least, according to the summary provided by the Report itself. The concerns they raised, it tells us, were of a practical nature: they told the Inquiry that removing confidentiality would prevent children from speaking freely in spaces in which, currently, they might be encouraged to do so confidentially. Surely, one might think, having such spaces provides victims of abuse with a chance to talk to someone, to clarify their feelings and receive advice about practical options for their next step, without feeling that they are immediately pressing the nuclear button. It is difficult to imagine how removing this potential stepping-stone to non-confidential disclosure is going to help them or assist the cause of justice.

Priests would never again be given such hints

Important though this may be for those involved in counselling, this kind of consideration is almost never at issue with sacramental confession. It is a remarkable feature of the Report that it hones in on sacramental confession as a form of confidentiality which should be compromised, without giving any consideration to its special nature. There is no discussion of its anonymity, for example: the vague nature of most of the things disclosed under the seal; the fact that those making confessions (“penitents”) are strongly discouraged from naming names and from confessing the sins of others; and of the place of sacramental confession in the spiritual lives of those who use it.

The idea that priests are more than once a lifetime given a fact about child sexual abuse (or any other crime) that would be remotely useful to the police or social services, is a complete fantasy. Then again, if the seal could be broken in such cases, priests would never again be given such hints, either by repentant abusers or by children frightened of the consequences of mentioning it in a non-confidential context.

It makes a good story, of course: the murderer confessing to a priest who is then accused of the crime himself, in Alfred Hitchcock’s 1953 I Confess; the girl mentioning her father’s abuse of her, in Antonia Bird’s 1994 film Priest. Bird borrowed Hitchcock’s image of the priest’s burden of conscience played out in front of the Stations of the Cross. But has it ever actually happened? Historical examples are not easy to come by. Some Jesuits may have heard of the Gunpowder Plot in confession, but Henry Garnet knew enough outside the seal to attempt, in vain, to put a stop to it. The great martyr of the seal of confession, St John Nepomucene, on the other hand, was tortured and killed in 1393 for refusing to recount to the King of Bohemia his Queen’s (probably imaginary) infidelities. 

That problem, of priests being expected to disclose what they actually do not know, particularly exercises the Catholic bishops who have spoken out on the subject. As Cardinal Vincent Nichols noted to the Inquiry, and as happens in the two films just mentioned, priests could not defend themselves against libel, blackmail or in a court of law, if anyone for any reason should claim that something was told to them in confession.

As already noted, some kinds of reporting of knowledge of crimes is already obligatory. On the other hand, as things stand, because it is socially understood that priests can’t blurt out details from a confession, claims that they knew about crimes under the seal have little weight: even if it is true that a priest knew something and did not repeat it, few people would think less of him for it, and courts and prosecutors tend not to regard it as in the public interest to press the issue.

Their recommendations are vitiated by their ideological lens

The IICSA would like to overturn this attitude. Their claim that the interests of children would be served by this is not, however, made out at all in the Report. It notes “the Inquiry heard of many instances in which children who were being sexually abused made disclosures or presented information to someone within an institution, but no action was taken to inform the relevant authorities” (§47), but in the breakdown of why this happened, which follows, the issue of confidentiality is not even mentioned (§§47.1-47.4). Nor does the Report address the obvious objection, that things only said in a strictly confidential context will not be said at all if the confidentiality is removed. 

Rather than considering the matter solely from the point of view of the priest, the interests of penitents should also be considered. The question at issue is a form of confidentiality which protects the private spiritual lives of children and adults alike. Those who confess their sins to a priest have a right to absolute confidentiality; this right makes possible the spiritual practice of confession, and its violation harms the penitent. 

We may accept that certain things which make child victims of sexual abuse uncomfortable may be necessary to protect others, and therefore in the public interest, but that is not to say that victims should be deprived of all consideration. Retrospectively denying them, or anyone, of the protection of a form of confidentiality which was presented to them as a sacred trust, is an act of abuse directed at them. Victims of abuse have had their trust in all kinds of people broken. This is not a good reason to betray their trust even more profoundly, in the context of the most intimate spiritual sphere.

The IICSA has done much to shine a light into the murky world of child sexual abuse, but their conclusions and recommendations are vitiated by the ideological lens through which they consider the facts. The contrast between confession and under-age sexual activity illustrates the problem. It is clear from a mountain of evidence that the age of consent is a crucial legal tool for protecting children; that sexual activity among children is the context for all kinds of peer pressure and subtle coercion; and that the reluctance of prosecutors to get involved, even when one party is two or more years older than the other, is routinely exploited in the systematic abuse carried out by rape gangs. When this activity comes to the attention of teachers and social workers, however, as report after report has lamented, they regard their duty of confidentiality as so powerful that they will not even inform parents, let alone the police. As for the police themselves, the words of the Daily Mail (26/08/2014), reporting on the Rotherham rape gangs should live forever in infamy:

In two cases, fathers had tracked down their daughters and tried to remove them from houses where they were being abused — only to be arrested themselves when police were called to the scene. 

For the IICSA, as it has been for social workers complicit in industrial-scale sexual abuse of minors often including those under their care, the duty of confidentiality towards these wretched victims of rape and forced prostitution is sacrosanct and non-negotiable. Why? Because these victims are supposed to have consented to their abuse, despite the evident meaninglessness of the notion of consent in this context.

Were these same children to seek the spiritual consolation of the sacrament of confession, on the other hand, the Inquiry would like their most profound secrets to be dragged out, potentially for public display in court.

If a child’s spiritual life is not considered consequential, it is evident that we have some way to go before the crisis of child sexual abuse can be addressed effectively.