Confession Under Pressure


Is the seal of confession above the law? It’s a question that’s been asked over and over again, in one crappy TV movie after another. The answer – if any final answer there can be – is no of course not, don’t be stupid.

Characterizing this as some sort of revolutionary break with church domination is the sort of nonsense we can leave to others. A priest who, to take a fiction-friendly example, knows that a murder has been committed cannot escape criminal charges by saying he was told about it in confession. He escapes criminal charges because failing to volunteer information is not a crime. It’s up to his own sense of right and wrong. That’s why you can get a good hour and a half out of it.

So this measure is revolutionary, but its effect on the lives of priests is of trifling importance compared to how it affects all of us. It creates a new crime of not telling what you know – something that does not fit at all well with basic ideas of a free society. To commit a crime you have to actually do something wrong. It is not a crime merely to know something, and it is not a crime not to do something. Exceptions are specific – you can commit a crime by omission only if you have a specific duty of care. If you don’t feed your horse it’s a crime. It’s not a crime if I don’t feed it.

Professionals have specific duties of care that come with the job. A doctor has to act if they believe someone is endangered for example. Under common law principles, the rest of us don’t. You would think that a priest or bishop could be said to have a professional duty of care over the children of their parish or diocese, and I don’t know why this legal route was not taken. Perhaps it would involve the state in the professional regulation of clerics, something it feels it’s better well out of.

Instead, this proposed law would seem to create a universal duty of care towards children, incumbent on all adults. Your kids actually will be my responsibility. I think this is actually civilizing and might be a good idea anyway, but I can see big objections and big potential problems.

It may simply be unworkable. If it is a crime to not report suspected sexual abuse of children, how can you ever convict someone? You’ve got to establish, beyond reasonable doubt, that they had reason to suspect abuse which was specifically sexual. What’s more, in the one situation that everyone is assuming this applies to – the sacrament of confession – you will never get a conviction anyway because it will always be one person’s word against another’s.

So if a law is both useless in practice, and breaches a fundamental principle of the common law tradition, I’m very much afraid it will either never happen, or actually be worse than nothing. We will need to think hard about this.

Wouldn’t it be simpler to just ban priests?

3 replies on “Confession Under Pressure”

Well, I’m actually in a profession in which I am required to maintain strict confidentiality most of the time, but also required report under a pretty wide umbrella of circumstances. It boils down to a general duty in which I am required to report if I know that a person is planning to or likely to hurt someone else. More specifically, I am required to report if I know of a child who is suffering or likely to suffer physical or psychological harm.

It’s true that it’s almost impossible to convict under the relevant statutes, although it is easier to kick me out of this profession if I am demonstrated on a balance of probabilities to have been wilfully indifferent to human suffering.

The reason why I support these laws is mainly self protection. Most lawyers (believe it or not) do not want to be put in the position of protecting a child molester or active murderer at the price of the child’s safety or other people’s lives – extreme examples, but used for illustration purposes. By imposing an active duty, I am not going to suffer negative consequences for doing the absolutely right thing. It’s something I can fall back on for protection against my own client.

In my experience, most priests feel the same way. However, they keep getting royally screwed over by the Vatican’s stupid rules. I have a family member in the priesthood. He’s recovering from a massive break down caused by the fact that he was ordered – directly by the bigwigs at Vatican City – to tell a victim of abuse that after the priest confessed and was absolved that he had to stop talking about what happened to him on pain of excommunication. That’s right – they will excommunicate a victim if the fucking piece of shit in a collar that did the abusing “repents”.

Put some laws in place to give the good ‘uns with an actual functioning conscience and morality the ability to do the right thing without having the Pope coming down on them and possibly shuffling them off to a cloister for “reflection” to keep them away from the media and the police.

Wow… guess you hit a nerve there! I was just going to put in a few sentences, I swear!

Thanks BHL, you make very good points. And I think you are right that the real aim of this law is to offer a starker choice to priests and bishops when they are told by their religious superiors to disobey the law of the land, to make it clear that following such instructions is unacceptable.

The latest revelations – of new cases of child abuse being covered up in the 90s even after there had been public enquiries, convictions of clerical paedophiles, and child safety guidelines put in place – is forcing the state to force clerics to disobey their religious superiors. In a way it gives what I’ll have to call the religious inferiors more ammunition, if they can say that obeying an instruction will put them in jail.

Though I didn’t explore the aspect here, as a news story this is very much about the Vatican telling bishops not to comply with state regulations – to act as an illegal organisation, one might fairly say. The government has requested an explanation from the Papal nuncio.

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