THE Queensland Government has tabled amendments to the criminal code that would require priests to violate the sacramental seal of confession when penitents confessed child abuse, or risk facing three years’ imprisonment.
The proposed amendments, which were tabled in response to Royal Commission recommendations on November 27, reflected similar legislation adopted in Victoria in August.
Catholic priests, who were the only substantial provider of religious confessions in Australia, could be caught between state law and canon law.
New Zealand priest Monsignor Brendan Daly wrote a paper about the seal of confession, which was published in Roman Replies and CLSA Advisory Opinions.
Msgr Daly wrote much about the seal of confession was misunderstood.
The seal itself, defined by the 1983 Code of Canon Law, was “inviolable” and it was a “crime for a confessor in any way to betray a penitent in word or in any other manner or for any reason”.
If a priest directly violated the seal – that is, directly identified a penitent and linked them to a confessed sin – then the punishment was automatic excommunication, which could only be lifted by the Apostolic See.
The form of violation that the Government sought from Queensland priests was the direct violation and automatic excommunication.
Many priests in the lead-up to the Victorian legislation, including Melbourne Archbishop Peter Comensoli, said they would face jail rather than directly violate the sacramental seal.
Justice Peter McClellan, who chaired the Royal Commission into Institutional Responses to Child Sexual Abuse, said in a speech on December 10 Church leaders perceived child abuse to be a moral failure rather than a criminal act.
“A moral failure could be forgiven in the confessional without any consequence for the offender or the Church,” he said.
“A crime cannot.”
Msgr Daly also drew from a safeguarding manual from the Church in England and Wales.
The standard procedure laid out by the Catholic Safeguarding Advisory Service procedures manual stated if a penitent brought a criminal sin, “the penitent should be directed to bring the matter to the attention of the statutory authorities”.
“The confessor should ask for action consistent with a firm purpose of amendment as a constituent part of an assigned penance,” the manual said.
“The penitent’s agreement to act in a way consistent with a firm purpose of amendment provides evidence of a proper disposition for the reception of absolution.”
Other critics of the legislation have said child abusers did not seek absolution.
While entrapment was a defence in Queensland, some critics feared priests could be “set up” by the new legislation.
Enforcement was also an issue.
Many priests have spoken out that penitents often used ambiguous language and preserve their anonymity in the confessional, which complicated the legislation.
Libertarians were concerned that if the government could intervene in confession, there was precedent to extend into other sacraments too.