Victorian Law Mandating Clergy to Report Child Abuse Learned About In Confession

On September 10, 2019, Victoria, Australia, became the next Australian province to pass legislation removing clergy's exemption from mandatory reporting of crimes against children when the knowledge or reasonable suspicion of such crimes came in confession.

Such legislation has previously been passed by the Australian Capital Territory, South Australia, the Northern Territory (with some ambiguity as to whether the mandatory overrides provisions in the Evidence Law), and is pending in Western Australia. Here a summary of the varied status in Australia prior to this legislation.

The legislation states that its main purposes are:

(a) to amend the Children, Youth and Families Act 2005—
(i) to include persons in religious ministry as mandatory reporters under that Act; and
(ii) to clarify that a mandatory reporter is not able to rely on the religious confession privilege in the Evidence Act 2008 to avoid the reporting requirement imposed by section 184 of the Children, Youth and Families Act 2005; and
(b) to amend the Crimes Act 1958 to provide that information that would be privileged under the religious confessions privilege in the Evidence Act 2008 is no longer exempt for the purposes of section 327; and
(c) to amend the Evidence Act 2008 to provide that the religious confessions privilege does not apply in proceedings for an offence against section 184 of the Children, Youth and Families Act 2005 or section 327(2) of the Crimes Act 1958

Most cases in which a priest in confession gains knowledge of child abuse are likely to be when the victim himself at the time or later as an adult speaks of the abuse in confession. In such cases, the confessor could ask the victim who has come to him in confession for permission to release him from the seal of confession, to tell others what he has told him. If the penitent does not want that, the Victorian law would in many cases not require reporting the abuse, as this can be, according to the Crimes Act, a "reasonable excuse" for not reporting: "

A person does not contravene subsection (2) [mandating reporting of sexual offences by adults against children] if
– (a) the information forming the basis of the person's belief that a sexual offence has been committed came from the victim of the alleged offence, whether directly or indirectly; and
(b) the victim was of or over the age of 16 years at the time of providing that information to any person; and
(c) the victim requested that the information not be disclosed.

In two types of case the law would require reporting that is incompatible with the sacramental seal or at any rate church law and teaching on confession:

(1) When the person who has committed abuse confesses it, and does not release the priest from the seal by giving him permission to report it, as reporting the abuse in this case would be a direct violation of the seal.

(2) When the penitent is a victim under 16 years of age, speaks of the abuse as a matter of guilt on his part, and does not want the priest to tell anyone else about it. For the confessor to reveal it in this case would also be a direct violation of the sacramental seal. If the penitent only mentions it within confession, but not as a matter of sin, to report it might not be a direct violation of the seal, but certainly seems contrary to church law as interpreted in the Note of the Apostolic penitentiary on the importance of the internal forum and the inviolability of the sacramental seal, the principal points of which I summarized in the preceding post.

Seal of confession, internal forum, and other secrets

The Note of the Apostolic penitentiary on the importance of the internal forum and the inviolability of the sacramental seal seems to distinguish three basic levels of confidentiality: the seal of confession, the non-sacramental internal forum, and other secrets.

The seal of confession

  • The seal of confession is so established by God together with the giving of the sacrament of confession, that not even the Church can make or allow an exception to it, much less any civil authority. The seal is bound up with the priest's acting in persona Christi when he gives absolution, in the very person of Christ the head, who alone can forgive sins. (Translation note: the English translation of this note currently available on the Vatican website and elsewhere omits an important "not" and gets a key sentence backwards: "[In n. 1467 of the Catechism of the Catholic Church] we read that the Church "establishes", by virtue of her own authority, rather than that she "declares" — that is, recognizes as an irreducible datum, which derives precisely from the sanctity of the sacrament instituted by Christ — "that every priest who hears confessions etc." — the Italian text, in fact, and more accurately, says the opposite: "We read not that the Church "establishes"… but rather that she "declares…"
  • Fidelity to the seal of confession is consequently not merely a duty to the penitent, but testimony to Christ as the Savior of all.
  • The sacramental seal extends to all sins admitted by the penitent, even if absolution is not given. (This is stated as such in canon law.)
  • The confessor cannot use knowledge from the confession to the detriment of the penitent even when any danger of revelation is excluded (Stated in canon law — this stricture was not always understood to be included in canon law; St. Thomas Aquinas holds that a confessor can act based on knowledge gained in confession as long as there is no danger of thereby revealing the confession.)
  • The sacramental seal binds the confessor also "interiorly", to the point that he is forbidden to remember voluntarily the confession and he is obliged to suppress any involuntary recollection of it. (For this claim, which raises some interesting questions, no source is given in the note.)
  • Outside of confession, the sacramental seal binds the confessor in relation to the same penitent who confessed. Unless the penitent has given the priest permission to speak about the confession, the priest may not speak about it to that penitent outside of confession. (Here reference is made to Pope St. John Paul II, Address to the Apostolic Penitentiary, 12 March 1994).
  • The penitent cannot, after the fact, release a priest from the obligation of the sacramental seal, because this obligation comes directly from God. (For this claim no reference is given) Self-revelation of a crime to civil authorities cannot be demanded by the confessor as a condition for absolution: "It is never permissible, as a condition for absolution, to place on the penitent the obligation to turn himself in to civil justice, by virtue of the natural principle, incorporated in every system, according to which "nemo tenetur se detegere"."

Non-sacramental internal forum

The confidentiality of the internal forum in which spiritual direction taken place is analogous to the sacramental seal. Because the one seeking spiritual direction confides in the spiritual director by reason of the spiritual director's special relationship with Christ (rooted in holiness of life and, in the class of a cleric, from sacred orders), the spiritual director effectively has this knowledge as a kind of representative of Christ. Consequently this confidentiality has a particular sacredness, beyond that of other secrets.

Professional Secrets

  • Professional secrets binding on persons by reason of a special office are binding of virtue of natural law, and must be preserved except "in exceptional cases where keeping the secret is bound to cause very great harm to the one who confided it, to the one who received it or to a third party, and where the very grave harm can be avoided only by divulging the truth".
  • The "pontifical secret" is said to be a special case. The exact intent of the text is hard to make out here, and the English translation unhelpful, but it seems to be suggesting that the pontifical secret, bearing upon the greatest matters, could not be subject to exceptions except by judgment of the Supreme Pontiff. "A special case of secrecy is that of the "pontifical secret", which is binding by virtue of the oath connected to the exercise of certain offices in the service of the Apostolic See. If the oath of secrecy always binds coram Deo the one who issued it, the oath connected to the "pontifical secret" has as its ultimate ratio the public good of the Church and the salus animarum. It presupposes that this good and the very requirement of the salus animarum, thus including the use of information that does not fall under the seal, can and must be correctly interpreted by the Apostolic See alone, in the person of the Roman Pontiff, whom Christ the Lord constituted and placed as the visible principle and foundation of the unity of faith and of the communion of the whole Church."

St. Pope John Paul to the members of the Apostolic Penitentiary, March 12, 1994

Some years ago, occasioned by a civil case in Louisiana, I took up some issues related to the seal of confession. I want to return to the question again, which has been raised by proposed legislature in several countries to oblige priests to report suspected sexual abuse of minors, even if it comes to their knowledge only in the context of confession.

Recently, June 29, 2019, the apostolic penitentiary published a note on the sacramental seal and the internal forum, and some comments thereupon in the presentation of that note. Before looking at this note in detail, I want to here translate a speech of Pope St. John Paul II To the members of the Apostolic Penitentiary and the confessors of the Patriarchal Basilicas of Rome (March 12, 1994), cited in the aforementioned note. Originally given in Italian, it is available on the Vatican website only in Italian and Portugese.

I thank the Lord, who also this year offers me the joy of your presence: of you, Cardinal Major Penitentiary, whom I thank for the sentiments expressed in the address to me; of you, Prelates and Officials of the Penitentiary, Ordinary and Extraordinary Penitentiary Fathers of the Patriarchal Basilicas of the City. I am also pleased to welcome you, young priests or future ordinands to the presbyterate, who in desire anticipate your sacred ministry, and therefore, in relation to one of the highest and most delicate aspects of it, you have specifically wished to prepare by taking advantage of the course on internal forum, which each year the Apostolic Penitentiary organizes and carries out.

This joy derives, first of all, from the observation of your sincere devotion to the Chair of Peter, whose "potior principalitas" Cardinal Baum recalled referring to the venerable testimony of Irenaeus. It is a joy that then springs from the opportunity that our meeting offers me to return to issues pertaining to the sacrament of Penance, always of vital importance for the Church and today of special relevance.

2. As I turn in gratitude to the Members of the Penitentiary and to the Penitentiary Fathers, because they dedicate the best of their energies to the pastoral care of Reconciliation, I stress that the existence of a Dicastery with this specific task, and the full-time assignment of many Priests, belonging to illustrious religious families, to this ministry in the main basilicas of Rome indicate the privileged place that the Holy See attributes to this sacramental function.

I would like to direct that thanks to the individual Penitentiary Fathers as well as to their religious families, because they are well aware of this need and of the singular good fruit that follows, in harmonious cooperation with the Apostolic Penitentiary and on the basis of of secular dispositions issued by the Supreme Pontiffs, generously provide, at the cost of sacrifice, suitable subjects, and with noble spirit subordinate certain peculiarities of their customs to the pre-eminent task assigned by the Holy See.

3. I would further like to highlight your origin from the various continents. This circumstance corresponds to the Pope's intention to send all the confessors of the world his meditation, his recommendation, his hope regarding the ministry of Reconciliation. It must be protected in its sacredness, as well as for theological, juridical, psychological reasons, about which I have spoken in the previous similar allocutions, and out of the loving respect due its character of intimate relationship between the faithful and God. It is God indeed whom sin offends and it is God who forgives sin, who scrutinizes "what is in man", that is, personal conscience, and deigns to associate in this healing and sanctifying conversation the human priest, elevating him to the ineffable prerogative of acting "in the person of Christ."

Our Lord Jesus Christ, having established that the faithful accuse his sins to the minister of the Church, thereby sanctioned the absolute incommunicability of the contents of the confession with respect to any other man, to any other earthly authority, in any situation. The canonical discipline in force regulates this right/duty, founded on the divine institution, with canons 728 § 1, n. 1, and 1456 § 1 of the Code of Canons of the Eastern Churches for the Churches of that Rite and, for the Church of Latin Rite, with canons 983 and 1388 of the Code of Canon Law. And it is very significant that the new Code, despite having mitigated the sanctions against the transgressors in almost all the other spheres of penal law, in this matter instead maintained the maximum penalties.

4. The priest who receives sacramental confessions is forbidden, without exception, to reveal the identity of the penitent and his sins; and precisely, with regard to serious sins, the Priest cannot mention them even in the most general terms; as far as venial sins are concerned, he cannot absolutely reveal the species, let alone the individual act.

It is not enough, however, to respect the silence as regards the identification of the person and his sins: it is necessary to respect it also by avoiding any manifestation of facts and circumstances, the remembering of which, although they are not sins, can displease the penitent, especially if mentioning them entails a disadvantage: in this regard, see the Decree of the Holy Office (Denz, 2195) which categorically condemns not only the violation of the seal, but also the use of the knowledge acquired in confession, when this involves in any case the "gravamen paenitentis". This absolute secret regarding sins and the dutiful strict caution for the other factors mentioned here bind the priest not only by prohibiting a hypothetical revelation to third persons, but also by forbidding hinting at the contents of the confession to the same penitent outside the sacrament, without his explicit consent, and especially if it is not sought.

5. This total confidentiality is directly for the benefit of the penitent. Consequently, there is for him neither sin nor canonical punishment, if he voluntarily and without causing harm to third parties reveals what he has accused himself of in confession. But it is evident that, at least by reason of a pact implicit in things, out of a duty of fairness, and, I would say, out of a sense of nobility towards the confessor, he ought in turn to respect silence regarding what the confessor, trusting in his discretion, manifested to him within the sacramental confession.

In this regard, it is my duty to recall and confirm what, by Decree of the Congregation for the Doctrine of the Faith (cf. AAS 80 [1988] 1367), was established to repress and prevent injury to the sacredness of confession, perpetrated through the social media. [Note: the decree establishes the penalty of excommunication latae sententiae for those who by technical means record what is said by penitent or confessor in confession, or who publish it in the media.]

I must also deplore some unseemly and harmful episodes of indiscretion which, in this matter, have recently occurred to the bewilderment and pain of the faithful: "Ne transeant in exemplum!".

6. Consider here that their levity and imprudence of priests in this field, even if they do not reach the extremes foreseen by the penal law, produce scandal, discourage the faithful from approaching the sacrament of Penance, obscure a glory of two millennia that has also had its martyrs: I think above all on St. John of Nepomuk.

Consider the faithful who approach the sacrament of Penance, who, calling into question the confessor Priest, attack a man without defense: the divine institution and the law of the Church oblige him in fact to total silence "usque ad sanguinis effusionem".

I trust that none of those present will, thanks be to God, be reproached; but the warning is valid for all, and we must all with earnest prayer implore the heroism of an unstained fidelity to the sacred silence.

In order not to end on this negative note, I would like to add the positive things you see, especially the great influx of penitents who confess in Rome and elsewhere, especially in the Sanctuaries. There is a rebirth of the Sacrament, especially among young people, as noted in the World Youth Days, especially in Denver.

If penitents are not lacking, confessors are not lacking either. If once it could have been feared that the Sacrament of Reconciliation was about to be forgotten, today we are witnessing a rebirth of it.

This means that the Holy Spirit is always present and works through us, works above us, finds its paths and we must receive the fruits of its work.

This is why I am delighted. I would like our meeting today to also be a meeting of joy, a pre-Easter meeting, with the Easter vows that are always a great joy for the Resurrection.

The Resurrection is always present in the Sacrament of Penance and many rise again, even great sinners. It is thanks to many movements that have raised awareness of the importance of the Sacrament of Penance and forgiveness even among criminals or the Red Brigades. I talked to these people.

We must always return to the sacred memory of the great confessors of the Church such as St. John of Nepomuk, the Curé of Ars, Jean-Marie Vianney, and as Padre Pio was in our times. Also in Rome one knows many great confessors of the past and present among the various priests of the religious Congregations. There are true martyrs of the confessional in various Roman churches such as St. Peter's Basilica.

I entrust these exhortations and desires to the mercy of Jesus, the Eternal High Priest and to the prayers of Mary Most Holy, Mother of the Church and Refuge of sinners, while, as a pledge of constant affection, I impart my blessing to you all.

Faith, Intention and Sacramental Reception of the Eucharist

While discoursing on who can receive the Eucharist sacramentally (Summa Theologiae III, q. 80, a. 3), St. Thomas Aquinas describes three cases where the one consuming the Eucharist does not receive the Eucharist sacramentally: when the Eucharist is consumed by an unbeliever, an animal, or by one who does not know it to be the Eucharist, for instance, if he thinks that the host is not consecrated. About an unbeliever who receives the Eucharist:

Even if an unbeliever receives the sacramental species, he receives the body of Christ under the sacramental sign. Therefore, he eats Christ sacramentally, if "sacramentally" refers to that which is eaten. But if it refers to the person eating, then properly speaking he does not eat sacramentally, because he does not use what he receives as a sacrament, but as simple food. Unless, perhaps, the unbeliever intends to receive that which the Church bestows, although he does not have true faith regarding the other articles or even regarding this sacrament (Summa Theologiae III, q. 80, a. 3, ad 2).

About an animal that consumes the Eucharist, or a person who does so unknowingly:

Even if a mouse or dog eats a consecrated host, the substance of Christ's body does not cease to be present under the species as long as these species remain, that is, as long as the substance of bread would remain [if it were bread], just as happens if it is cast into the mud… and yet it is not be said that the brute animal consumes the Christ's Body sacramentally, because it is not unable to treat it as a sacrament. Consequently, it does not consume the Body of Christ sacramentally, but only accidentally, just as he who consumes a consecrated host not knowing that it is consecrated (ibid., ad 3).

If I rightly understand Aquinas's position, it could be described in the following manner: the Body of Christ is present under the species of bread as long as the species of bread remains, and in this enters into any person or animal who consumes this species; but, if they do so without at least an implicit intention to receive the Body of Christ, they are not united sacramentally with him; the Body of Christ is present in them in the same way that the Body of Christ is present in a ciborium, or perhaps in a vessel of water that is dissolving the species of bread (somewhat analagous to the process of digestion dissolving the species).

In a similar manner, one who knows that he is consuming the Eucharist, but does not intend to do so sacramentally, does not in fact receive sacramentally. There are two quite different ways  this could occur: (1) someone could ritually receive Communion, e.g., during a Mass, while intending not to receive sacramentally, to be sacramentally united to Christ; this would be a grave sin against the Sacrament; (2) someone could consume the consecrated species in another context; e.g., a minister of the Eucharist consuming a host that falls on the floor, someone consuming remaining hosts or the Blood after Mass, or purifying the sacred vessels. This seems to me not to be a sacramental reception. One liturgical argument that could be advanced for this is that an institute acolyte may take and carry the chalice to the credence table (without receiving it from the priest) and purify it there. If such purification is to be considered a sacramental reception of communion, then this would be self-communication, which is generally forbidden.

Though the distinction between "receiving that which is the Sacrament" and "sacramentally receiving the Sacrament" may in this case seem a subtle one, I wonder whether it might not be  a valuable point of contact with some of the protestant understandings of the Eucharist and their emphasis on the role of faith. Admittedly we cannot overlook the differences; the Council of Trent expressly rejected Luther's position that the Real Presence is only there in the consumption of the Eucharist (in usu) (Session 13, Canon 4); but such points of contact, even if they do not involve simple agreement, are still important.