Child Abuse Dobbing Laws

By Frank Brennan
Eureka Street
July 22, 2012

http://www.eurekastreet.com.au/article.aspx?aeid=32434


The Church's handling of sexual abuse claims has been back in the media spotlight. Following the 4 Corners program 'Unholy Silence' which exposed the dastardly deeds of 'Fr F' in the diocese of Armidale during the 1980s, the bishops of Armidale and Parramatta, seeking to be completely transparent, have appointed a respected lawyer, Tony Whitlam QC, to conduct an inquiry into the Church response to Fr F.

The inquiry will focus on a meeting of Fr F with the 'Australian Catholic Bishops Special Issues Resource Committee' on 3 September 1992, and its aftermath. It will be up to Mr Whitlam to chase the paper trail and presumably interview all persons involved in the 1992 meeting. Twenty years on, recollections may well be hazy and varied, but that is not surprising.

The Judicial Vicar of the Diocese of Armidale was in attendance at that 1992 meeting and provided the bishop of Armidale with a detailed report a week later which is at variance with 'the file note of that meeting' referred to by Cardinal Pell on 4 Corners. The Archdiocese of Sydney has described the Judicial Vicar's report as 'a private report' and referred to 'notes of the meeting held by the Church's Professional Standards Office' but says that 'any official record of the meeting would be with the Armidale diocese'.

The appointment of a respected independent lawyer with no Catholic Church affiliation is the best means of ensuring that no stone is left unturned in revealing whatever can now be known about the case of Fr F. The NSW Police have also announced their own inquiry.

Even the Church's harshest critics need to remember that this case arose before the Church set up the Towards Healing protocol in 1996. That protocol was comprehensively revised and fine tuned in 2000 and again in 2010. A bishop receiving complaints about Fr F today would have far better processes available to him.

Also the church authorities would work closely with any child's parents who brought a complaint to the bishop helping and encouraging them to go to the police. If a victim came forward years later making a complaint today as an adult, the church authorities would continue with their own processes only if the victim decided that he or she did not want to go to the police.

Let's hope and pray that the bereaved families of Damian Jurd and Daniel Powell can at least be assured that the Church is doing all it can 20 years later to disclose all that happened in dealing with Fr F, learning belatedly any lessons that might be learned. Let's spare a thought for those other priests who did their best at the time to remove Fr F from ministry and access to children.

Let's also hope that any other victims of Fr F will come forward to the newly launched police inquiry and tell their story. Should they think the Church could help them, they could engage the Towards Healing protocol.

Unfortunately the media has run together he appointment of Whitlam in New South Wales with the call by some victims' groups in Victoria to abolish the seal of the confessional. There are three separate issues: mandatory reporting to state child protection officials of abuse of a particular child, reporting to police of suspected criminal activity by a particular perpetrator, and the seal of the confessional.

In all states and territories there are laws for the mandatory reporting of child abuse. These vary enormously across jurisdictions. What a relief for everyone involved if they could be uniform. In most states, professionals like teachers who are engaged with children are required to report suspected abuse of any child. There may well be a case for including clergy who deal regularly with children in any uniform list of mandatory reporters.

Only in New South Wales is there a general 'dobbing' law which requires anyone who has information about any serious criminal offence (not just child abuse) to refer the matter to police. Persons from various professions, including clergy, can be prosecuted for failing to report only with the approval of the Attorney-General.

I have no problem with the same law applying to clergy as to other professional groups in requiring mandatory reporting of child abuse. I have no problem with the same law applying to clergy as to other professional groups in requiring them to hand on information about criminal activity when that information is obtained in the course of their professional activity. But I would insist on one key difference.

A priest should never be required to disclose anything heard under the seal of the confessional.

The state has the same right to regulate matters for a priest outside the confessional as to regulate matters for all other citizens outside the confessional.

We do not live in a police state. We live in a pluralist democracy which respects human rights of all persons, including the right of religious freedom.

Catholic priests are bound by the Church's Code of Canon Law which provides: 'The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason. A confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded.'

Last week, Melbourne Victims' Collective coordinator Helen Last said, 'Priests need to be mandated to report from within the confessional and without the confessional'.

This followed upon the release of the Submission Guide published by the Victorian Parliament's Inquiry into the Handling of Child Abuse by Religious and other Organisations asking 'To what extent should the reporting of suspicions of abuse be circumscribed by laws, customs and ethical codes of religions? (For example, should the sacrament of the Catholic confessional remain sacrosanct in these circumstances?)'

This question was comprehensively considered and decided in Victoria by the Report of the Protecting Victoria's Vulnerable Children Inquiry which was tabled as recently as February this year.

The panel chaired by retired Judge Philip Cummins recommended, 'An exemption for information received during the rite of confession should be made.' The report noted: 'a statutory exemption to the reporting duty should be provided in relation to information received during a religious confession. In Victoria, information revealed during religious confessions is considered privileged when admitting evidence before courts.'

Victorian Premier Ted Baillieu has ruled out changes to the seal of the confessional. He says members of the Inquiry 'all concluded that the sanctity of the confessional should remain. I think that's a powerful argument.'

The seal of the confessional is a red herring when it comes to protecting vulnerable children. Usually when hearing a confession, a priest will have no way of identifying a victim. He will have no idea of the date of any offence; it may have occurred decades ago. He will have no idea of where any offence was committed; it might have been Parramatta, but then again it might have been Paris or Parabadoo.

He more than likely will not even know the identity of the penitent; he might not even get to see him or her behind the confessional veil.

If the only information available were from the confessional, chances are that it will be information which is useless to police or child protection officers. If confessional reporting were mandatory, chances are that the perpetrator would simply not come to confession. So even in brute consequentialist terms, there is no point in making confession reportable to the state.

Most, if not all priests, would prefer to go to jail than disclose material from confession which could 'betray in any way a penitent in words or in any manner and for any reason' even if the penitent be a child molester, a murderer or a terrorist. And that's not because we don't feel compassion for children or other innocent persons. We respect the sacredness of the sacrament where the penitent and God relate in the presence of the priest.

Kids will be better protected in future if we put to one side the furphy about the seal of the confessional and address the real questions about uniform mandatory reporting and clear guidelines for reporting any suspected serious crime. Honouring the memories of Damian Jurd and Daniel Powell and the grief of their families, we should focus on the real issues which might help all children be better protected in the future.