It’s Not About Seals

Mussolini (left) and Hitler sent their armies ...
"Godwin'd!" "Dummarsch" Meeting Of Ireland's Taoiseach and Papal Nuncio

For his criticism of the Pope, one priest has likened Ireland’s prime minister to Adolf Hitler. Another called Justice Minister Alan Shatter a “Jewish non-practising atheist

When your opponents call you Hitler and a Jew, you must be doing something right.

In the wake of the Catholic hierarchy treating child protection rules as something that happens to other people, government has little option but to put them on a statutory basis, complete with the sanction of jail terms for those who “withhold information relating to sexual abuse or other serious offences against a child or vulnerable adult”. There seems no other way – indeed one wonders how that isn’t the law already.

Those who would defend the indefensible however want to characterise this as requiring priests to break the ‘seal of confession’, the vow to treat anything revealed in the confessional in absolute confidence. This is mendacious. I’ve said this before but it bears repeating – no one is going to get a conviction based on a private conversation between two people. Even in the unlikely scenario of a convicted child abuser accusing his confessor of failing to report him, his testimony would still be uncorroborated.

What about a scenario where a priest hears a child “confess” that someone has been interfering with them? Even if the priests still considers that information privileged, surely he would take whatever action he could to ascertain for himself, outside the confessional, whether the child really was in any danger, would report any reasonable suspicions to the relevant agencies, and would encourage the child to do so too.

And surely he would consider himself morally compelled to do that whether this law was in force or not.

Wouldn’t he?

But the law is not aimed at confessors. It is aimed at stopping the Catholic hierarchy concealing information they have about abusing priests, information that they are acting on themselves. Which – unless they themselves are breaking the seal – does not come from confessions, but usually from the complaints of victims or their parents. People who protest that the law will threaten the sacrament of confession are merely out to defend the autocracy of that hierarchy.

Confession Under Pressure

priest
Image by filipe.garcia via Flickr

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?