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?
- Priests to be legally obliged to report abuse (politics.ie)