Confessional: churches and priests are not above the law

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Opinion

Confessional: churches and priests are not above the law

By Luke Beck

Melbourne’s Catholic Archbishop, Peter Comensoli, claims that a priest’s religious freedom extends in some circumstances to covering up the rape of a child. Comensoli declared that he would rather go to prison than tell authorities about child sex abuse he learns of during the sacrament of confession.

Melbourne Archbishop Peter Comensoli.

Melbourne Archbishop Peter Comensoli.Credit: AAP

Victoria’s move, announced this week, to compel priests to report information about child sex abuse to authorities demonstrates that religious freedom, like other rights, is not absolute and that some limitations on religious freedom are justified.

The Royal Commission into Institutional Responses to Child Abuse recommended that religious leaders be added to the list of mandatory reporters, along with teachers, social workers and others, who are required by law to report concerns about child welfare to authorities. The royal commission also recommended that there be no exemption for the Catholic confession.

Victoria’s new legislation is simply finally getting around to implementing the royal commission’s recommendation. Other states are also in the process of implementing or thinking about implementing the recommendation.

Confession may no longer be sacrosanct.

Confession may no longer be sacrosanct.Credit: Michael Rayner

Comensoli is right that forcing a priest to break the seal of confession interferes with how Catholic priests practise their faith. Catholic doctrine really does hold that confessional secrecy is inviolable.

Religious freedom has been a hot topic of debate in Australia lately, and the federal government is poised to release its draft religious freedom legislation in coming weeks. It’s important to remember that while religious freedom is very important, it is not absolute.

It is not a breach of your religious freedom if your neighbour lives their life in way that you don’t like for religious reasons. Religious freedom does not entitle you to impose your beliefs on others or entitle others to impose their religious beliefs on you.

Your religious beliefs do not entitle you to ignore or break the law of the land. And your religious beliefs are certainly not an acceptable justification for harming other people or turning a blind eye to child abuse.

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International law guarantees the right to freedom of thought, conscience and religion. But international law also declares that religious practices can be limited by law where “necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others”.

Most Australians would agree that the right of a child not to be raped is pretty fundamental. As the royal commission wrote in its report, an adult’s right to religious freedom “cannot prevail over the safety of children”.

The commission’s recommendation is aimed at stopping and preventing the abuse of more children. The idea is that catching an offender as early as possible prevents further abuse.

Forcing priests to break the seal of confession in child protection matters is necessary. The royal commission heard evidence that children who had been abused and the perpetrators of abuse have disclosed that abuse during the sacrament of confession.

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If the priests who heard those confessions had passed that information on to authorities, perpetrators could have been brought to justice, survivors provided with assistance and other children potentially saved from abuse.

Under Victoria’s new legislation, if police learn from a survivor of child abuse that a priest knew about what was going on and failed to report it, that priest faces civil and criminal penalties in the same way a teacher or doctor would face penalties.

As the evidence from the royal commission demonstrates, it is sometimes possible to discover that a priest found out about child abuse during confession without the priest dobbing himself in.

Victoria’s legislation is carefully targeted. Priests are only required to pass on concerns about child protection matters. If someone admits to being a bank robber, for example, the priest can still maintain confessional secrecy. And the Catholic Church has no objections to forcing priests to report information they learn outside confession.

The royal commission recommendation on which Victoria’s legislation is based is also aimed at breaking “institutional cultures that discourage reporting of child sexual abuse”. Forcing priests to break the seal of confession in respect of child protection matters is necessary for this purpose, too.

The commission found that the Catholic Church considers itself “independent of the authority of the secular state, and separate from and above the wider society”, and that the church’s culture “enabled child sexual abuse to occur” and “contributed to inadequate institutional responses”. Victoria’s new law is a reminder that churches and priests are not above the law.

Your right to practise your religion as you see fit is very important. But your religious beliefs do not put you above the law of the land. And your right to religious freedom does not extend to covering up the rape of a child.

Luke Beck is an associate professor of constitutional law specialising in religious freedom at Monash University. He is the author of Religious Freedom and the Australian Constitution: Origins and Future (2018).

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