In Catholic practice, the “client privilege” associated with the sacrament of confession is guaranteed by what is known as the “seal” of the sacrament. This term refers to the fact that what the penitent discloses to the priest remains sealed. Under no circumstances can a priest pass on to a third party what he has learned about a person in confession. In principle, a penitent could subsequently authorise a priest to pass on, or act upon, information first disclosed in the sacrament, but this would not prejudice the sacramental seal.
Here are two scenarios that relate to the controversy sparked by the recently published Children First Bill on mandatory reporting of child abuse.
First, the sacramental seal is perceived no longer to apply where child abuse is concerned. In this scenario, the likelihood that priests will hear anything that might be of assistance to the Health Service Executive or the Garda Síochána is virtually zero. The insistence that mandatory reporting applies to the confessional will, in practice, make it inapplicable to the confessional. This is a circle that no legislation can square.
The second scenario is the one that obtains at present, where the sacramental seal is understood to be inviolable. Guaranteed confidentiality makes it likely (and the likelihood is far from zero) that priests may, from time to time, be in a position of encouraging people to take a step towards healing, or to contact the authorities.
Small, initial steps
Here we touch on a considered reservation regarding the wisdom of mandatory reporting as such. Survivors of abuse may not be willing or able to make a full disclosure to statutory authorities, but may feel able to take the kind of small, initial steps that might eventually lead to this. Mandatory reporting may compromise the possibility of small, initial steps. Obviously, there are sound reasons for not allowing such reservations to decide the issue, and a great deal of considered opinion favours mandatory reporting.
But of the two scenarios, which is most likely to favour and facilitate child safety? The one that will, in practice, effect a clampdown on disclosure in the confessional, or the one that will, at least in principle, facilitate the kind of first-step disclosure that may lead to further steps towards healing and justice? It seems to me that there is no contest, and that the issue can be decided on the basis of an appeal to child safety considerations alone.
This is not, nor should it be, about some special concession for the Catholic Church. The Government need not lose face: it can continue with its muscular attitude towards the Irish Catholic Church. Indeed, our recent history indicates that collision with the State can serve the church far better than collusion with the State, and while the church should certainly not seek collision, it should not fear it either.
A problem for our legislators, should they choose to take any interest in the matter, would be how to acknowledge the fact that the sacramental seal is infinitely more likely to be an ally than an enemy of child safety. The desire of the establishment to be seen not to kowtow to Catholicism may be historically understandable but it cannot be as high a priority as child safety.
An acknowledgment that the church’s established practice may actually be helpful might rub against the grain, but if that very possibility were dismissed out of hand then one might be excused for wondering if child safety had slipped into second place, after the need to keep the church in its place.
Outcomes of disclosures
It can be objected that the thrust of this argument regarding the seal of confession has never been demonstrated. To an extent this is true: in vain will one search for longitudinal studies on the outcomes of disclosures in confession regarding child abuse. But the assumption that current practice is harmful suffers from the same limitation. Where is the evidence that the sacramental seal is placing children at risk, or impeding justice?
A de facto muzzling of the confessional (in the interest of usable information); or an acknowledgment that current Catholic confessional practice is, at the very least, not prejudicial to child safety: these appear to be the alternatives arising from the new legislation. The third way, obliging priests to pass on information received from penitents in the confessional, is a fiction, since no such information will be forthcoming.
Chris Hayden is a priest of the diocese of Ferns