10 May 2012

Seal of confession and playing to the anti-clerical gallery

There’s something rather disingenuous about Alan Shatter claiming that the legality of the Confessional Seal is a “side issue”, “a diversion”, and “an entirely bogus issue” in the debate about mandatory reporting of abuse and other serious crimes.

To hear the Minister for Justice talk, you’d almost think that he’d never raised the prospect of the Seal being threatened and that Catholics are kicking up a fuss over nothing. All that’s necessary to refute that is a quick glance at what he said on the very day the Cloyne Report was published.

Announcing that he would be introducing a bill to make the withholding of information about child abuse an offence, Minister Shatter claimed that there would be no “legal grey areas” when it came to the implementation of this legislation. He specifically stated that the laws would also apply to the priests, even where this information is revealed in the confessional.

The crude one-size-fits-all nature of such legislation, as proposed, alarmed me, not least because the last coalition of Fine Gael and Labour considered and decided against introducing mandatory reporting, recognising that such legislation would be impractical and probably counter-productive.

Troubled by this, I took the – for me – unprecedented step of writing about my concerns to the Taoiseach, whose office forwarded it to the Ministers for Justice and Children for their attention. Nine months later, I have yet to receive a substantive reply from Frances Fitzgerald’s office, despite one being promised, but Minister Shatter’s office promptly sent me an interesting email.

Citing section 7(2) of the Criminal Law Act 1997 and section 9 of the Offences Against the State (Amendment) Act 1998, the Minister’s office explained that all citizens already have a duty to report certain serious offences unless they have “reasonable excuse” for not doing so. It would be the purpose of the proposed legislation to extend this principle to cover the withholding of information concerning serious sexual offences against children or vulnerable adults.

It’s worth noting that the government has already extended this principle once; the Criminal Justice Act 2011, as Michael McDowell has pointed out, makes it a criminal offence to fail to report even trivial cases of shop-lifting.

“It must be borne in mind, however,” the letter concluded, “that in regard to the interpretation of the phrase ‘reasonable excuse’ it is a matter for the courts to determine whether any particular circumstances constitute a reasonable excuse. The proposed Bill does not propose any change in that position.”

Now that it’s been published, the Criminal Justice (Withholding of Information of Offences Against Children and Vulnerable Persons) Bill 2012 makes for fascinating reading, not least because it represents an impressive – and I think prudent – backtracking on the part of the government in terms of the exemptions it grants.

Under the terms of the bill, huge numbers of people are exempted from the legislation, notably – the legislation not having a retroactive aspect – everybody who currently has information of abuse having happened. There are vast numbers of such people.

The 2002 SAVI Study found that 27pc of the adult Irish population had experienced some form of sexual abuse in their childhood, most of this committed by people in the broad family circle, including neighbours and family friends. Almost half of Ireland’s abuse survivors – more than 350,000 people – had confided only in family, friends, or trusted professionals, without reporting their abuse to the Gardaí.

It is, I think, a relief that the government has decided against criminalising the tens or even hundreds of thousands of people who have committed no worse crime than listening to abuse survivors tell their stories.

This leaves the specific issue of the Seal of Confession. The reality is that regardless of what Ministers Shatter and Fitzgerald may say in order to look tough and decisive, nobody knows whether the Seal is under threat.

There’s no mention of the Confessional Seal in the bill, but this is hardly surprising: a law directly attacking such a manifestation of religious belief would almost certainly be unconstitutional and wholly contrary to the European Convention on Human Rights, which guarantees a right to manifest one’s religious beliefs save when it is both lawful and necessary to limit that right.

If neither the IRA’s conspiring with the Nazis during the Second World War nor Republican terrorism during the 1970s and 1980s had provided sufficient grounds to introduce such uniquely repressive legislation, it is difficult to imagine how its introduction now could be legally justified on the basis of “necessity”.

Is it, then, indirectly threatened?

At the heart of the new law is the principle that a person commits an offence if three conditions are met: he or she must know or believe that a sexual offence has been committed by another person against a child or vulnerable adult; he or she must have information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of that other person for that offence; and he or she must fail without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

The obvious problem with construing this as an implicit legal ban on the Seal is that it would be completely unenforceable. Priests are not obliged to accede to requests for face-to-face confession, and given the anonymity which the confessional box exists to protect, why would priests believe themselves to have materially useful information that should be given to the Gardaí?

Even if a priest had known a particular penitent’s identity, how could it be proven in court that said penitent had informed a priest of anything? There would have been no independent witnesses to the conversation, and priests could only respond to interrogation by refusing to comment, barred as they would be from either confirming or denying any questions on the subject.

In practical terms, it seems that this law could only ever to be used to challenge the Confessional Seal if spurious “confessions” would be recorded in cases of entrapment.

More fundamentally, “reasonable excuse” is not defined in law, and the new legislation expressly states that it does not remove any rule of law entitling a person to refuse to disclose information. As such, the existing common law and constitutional recognitions of priest-penitent privilege would almost certainly preclude the courts against interpreting the seal as anything other than a reasonable excuse.

I don’t believe the Seal is threatened in any meaningful way, and if it is, it’s been threatened for fifteen years, with priests breaking the law for the last one if they’ve not reported penitents who’ve confessed to shop-lifting.

The reality, surely, is that the government is simply bluffing in yet another transparent attempt at playing to the anti-clerical gallery.

  -- Originally published in The Irish Catholic, 3 May 2012.

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