When Rights Conflict: Sex Abuse Reporting & the Confessional

Pixabay photo

By Mark Michael

As the United Kingdom considers implementing a mandatory reporting law for child sexual abuse, the Church of England’s eight traditionalist Anglo-Catholic bishops have publicly urged that an exemption be granted for disclosures made during sacramental confession, a proposal considered but formally rejected last year by the government-sponsored Independent Inquiry into Child Sexual Abuse (IICSA).

In a four-page statement filed August 14 as part of a formal consultation, the Council of Bishops of the Society emphasizes the seal of the confessional’s healing role and suggests that disclosures of abuse in the confessional are very rare, while warning that an abrogation of the seal by law would be a violation of religious freedom.

“The loss of the Seal would take away from survivors a safe space for disclosure and would be doing so against the incredibly remote contingency, and unproven concern, that perpetrators will abuse the Seal. This will not make us a safer church. Rather it will take away from many victims and survivors a place in which a journey of healing can begin,” the bishops state.

“Confidentiality is an essential ingredient of Confession because we regard the conversation to [be] between Christ and the penitent and it must therefore remain ‘sealed’ by the sacrament. To qualify it in certain circumstances would be to undermine the sacrament altogether and would represent a major theological problem for us.

“We therefore regard the retention of the Seal of Confession to be a matter of religious freedom and conscience. We stress that these are deeply held matters of religious faith and conviction, based on many centuries of practice throughout the world.”

The bishops note their strong support for “all efforts to combat and eradicate child sexual abuse, including those being taken through the IICSA process,” and register a “deep revulsion at the many examples of child sexual abuse in the Church.”

Protecting the confidentiality of the seal would, the bishops state, stand alongside the IICSA-recommended exemption from mandated disclosures for consensual sexual contact between a child aged between 13 and 15 and another individual not more than three years apart from the child. A child in the U.K. is considered legally able to consent to sexual contact at the age of 16.

The bishops also note that a mandatory reporting requirement for child sexual abuse would raise many practical problems, and that it would be nearly impossible to police.

In an appended reflection, an anonymous Church of England priest of the Catholic tradition testifies that he hears hundreds of confessions, and that these have included “a number of first safeguarding disclosures, made by frightened, often ashamed survivors of abuse who are testing what will happen if they begin to speak about what has been for them unspeakable.”

“I have never had an abuser confess their abuse to me,” he adds. “It would be a dreadful misunderstanding of the reality of sacramental Confession, and the reality of many survivors’ experience … to make the confessional a less safe space to enter.”

IISCA and Mandatory Reporting

The IISCA, which was commissioned by the U.K. Home Office in 2014, conducted 13 separate investigations into child sexual abuse associated with social institutions, including the Church of England and the Church in Wales. Professor Alexis Jay, a Scottish academic, chaired the inquiry for most of its tenure. The IISCA received testimony from hundreds of abuse survivors and published 19 detailed reports.

Its report on the two Anglican churches, released in October 2020, identified nearly 400 sex offenders who held leadership positions in the church since the 1940s and warned that “the culture of the Church of England facilitated it becoming a place where abusers could hide.” It recommended a series of reforms to the church’s practices, including removing oversight for safeguarding cases from diocesan bishops.

While the Church of England’s leaders pledged to fully implement the recommendations, the process has been plagued by numerous procedural setbacks, and the church’s slowness to act was heavily criticized by victim advocates and survivors at last month’s General Synod. Professor Jay was appointed by the Archbishops of Canterbury and York to propose an independent safeguarding system for the church shortly after General Synod’s adjournment.

The IICSA’s report included a section of the seal of the confessional, which described sacramental confession as a “minority practice” within the Church of England, and noted a variety of opinions on whether the seal of the confessional should be inviolate in abuse cases.

The report also discussed in detail the case of the Very Rev. Robert Waddington, Dean of Manchester from 1984 to 1993. One of Waddington’s alleged victims said that the dean had forbidden him from reporting the abuse to authorities because Waddington had made a confession and been absolved of the sin.

Some authorities cited in the report note that the seal of the confessional is properly applied only to the priest hearing confession, not to the person making the confession. The Church of England’s 2015 Guidelines for the Professional Conduct of the Clergy actually envisage a situation like Waddington’s and require the abuser to self-disclose, noting:

“If, in the context of such a confession, the penitent discloses that he or she has committed a serious crime, such as the abuse of children or vulnerable adults, the priest must require the penitent to report his or her conduct to the police or other statutory authority. If the penitent refuses to do so the priest should withhold absolution.”

The final IILCSA report, released in October 2022, recommends a series of actions by the U.K. government to protect against child sexual abuse “as a matter of urgency.” These include introducing a statutory requirement for mandatory reporting for people who work directly with children “in a position of trust.”

This legal category, initially defined by the Sexual Offences Act of 2003, was broadened in 2021 to include religious leaders engaged in “coaching, teaching, training, supervising, and instructing” children “on a regular basis.” While a subsequent Home Office policy paper distinguishes between clergy who work closely with children and those who have a more remote relationship (such as preaching at a larger service where children are present), the distinction may well be immaterial in practice.

In its section about Mandatory Report, IICSA specifically mentions the seal of the confessional, which was also discussed at length in the body’s investigation of child sexual abuse in the Roman Catholic Church. “Some core participants and witnesses argued that a mandatory reporting law ought to provide exemptions for some faith-based settings or personnel and, in particular, in the context of sacramental confession.”

“Nonetheless,” it continues, “neither the freedom of religion or belief nor the rights of parents with regard to the education of their children can ever justify the ill-treatment of children or prevent governmental authorities from taking measures necessary to protect children from harm. The Inquiry therefore considers that mandatory reporting as set out in this report should be an absolute obligation; it should not be subject to exceptions based on relationships of confidentiality, religious or otherwise.”

U.K. Home Secretary Suella Braverman committed to implementing a mandatory reporting system in the government’s formal response to the IICSA report, issued in May 2023.

History and Context in the Church of England

Concerns about the legal standing of the seal of the confessional have a long history and have been addressed in different ways by Anglican churches in countries that have designated members of the clergy as mandatory reporters for child sexual abuse.

Canon 113 of the Church of England’s Canons of 1603 is the most important source for Anglican teaching about the seal of the confessional, and remains in force in the Church of England today. Upholding a legal principle imposed on the whole Western Church by Canon 21 of the 1215 Fourth Lateran Council, Canon 113 solemnly charges priests to maintain strict confidentiality about matters disclosed in confession.

The canon is framed as a general exception to the rule that clergy should report known offenders for ecclesiastical discipline, and states:

“Provided always that if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we do not in any way bind the said minister by this our constitution, but do straitly charge and admonish him that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy.”

Canon 113 did include an exemption for confessions of treason, which had also existed in medieval law (“such crimes as by the laws of this realm his own life may be called into question for concealing the same”). English laws that made a failure to disclose treason a capital offense, however, had already been repealed by 1603, so the exemption was essentially meaningless.

When the Church of England undertook a major revision of canon law in the 1950s and 1960s, it considered replacing Canon 113 with a more robust affirmation of the seal of the confessional, and the Convocations of Canterbury and York (the predecessor of today’s General Synod) passed resolutions in 1959 declaring the seal of the confessional to be “an essential principle of church doctrine.”

Plans for updated canons, however, were nixed out of concern that a new canon might not receive the necessary royal assent if it was understood to protect clergy from a requirement to give testimony in court. As a 2019 Church of England report on the seal of the confessional noted, “It was thought that whilst that privilege might have existed in the past, the modern law of evidence had evolved without reference to it, and that it was, at the least, doubtful whether the privilege existed under the civil (as opposed to ecclesiastical) law.”

The Seal of the Confessional Working Party, which undertook four years of work on the subject in response to a previous, pre-IICSA government consultation about the advisability of mandatory reporting requirements, decided against making an exemption to the seal for abuse cases. A clear majority of its participants were in favor of the received understanding of the seal, but the group as a whole decided that “it should not make a formal proposal either to maintain the seal or to abolish it.”

Shortly before the release of the IICSA’s final report in October 2022, the Church of England’s House of Bishops commissioned a new 14-member working group to continue the earlier work done on the seal, responding to the IICSA recommendations and aiming to establish an official position on the seal. The Rt. Jonathan Baker, Bishop of Fulham and a member of the Council of Bishops of the Society, is one of two bishops serving on the working group.

The Seal in Australia and the U.S.

In Australia, where clergy have been designated as mandatory reporters in several states for decades, the Anglican Church revised its canons nearly a decade ago to exempt child abuse allegations from the seal of the confessional.

Its Canon 1989, which was based on the 1603 Church of England Canon 113, was amended in 2014 to include two exceptions in which a confessor could break the seal, namely when a person who confesses “a serious offence” and the minister is not “reasonably satisfied” that the offense has been been reported to the police and appropriate ecclesiastical authorities, and when a minister needs professional advice about whether conduct confessed constitutes “a serious offence.” Under the Australian church’s canon law, a “serious offence” includes child abuse and exploitation as well as any other crime punishable by a sentence of five years to life in prison.

The exception was broadened by a 2017 amendment to Canon 1989, which also exempted from the seal “conduct confessed by the penitent to an ordained minister which does not constitute a grave offence, but gives the ordained minister reasonable grounds to believe that a vulnerable person is at risk of significant harm.”

Australia’s Royal Commission into Institutional Responses to Child Sexual Abuse, a body with a government mandate like the IICSA’s, recommended in 2017 that “laws concerning mandatory reporting to child protection authorities should not exempt persons in religious ministry from being required to report knowledge or suspicions formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.” Several Australian states have since modified their rules of evidence to remove previous exemptions granted to the clergy about privileged communication in the confessional.

The seal of the confessional is assumed by the Episcopal Church’s canons and by the rubric accompanying the rite for the Reconciliation of a Penitent in the 1979 Book of Common Prayer, which states: “The secrecy of a confession is morally absolute for the confessor, and must under no circumstances be broken” (p. 446).

The Standards of Conduct for the clergy, as outlined in Title IV.4.1, include a requirement to “report to the Intake Officer all matters which may constitute an Offense … except for matters disclosed to the Member of Clergy as confessor within the Rite of Reconciliation of a Penitent.” The definition of “privileged communication” in Title IV.2 includes “communication or disclosure made in confidence and with an expectation of privacy within the Rite of Reconciliation of a Penitent” among several circumstances in which confidentiality is expected.

In the United States, 48 of the 50 states have laws that designate certain professionals as mandatory reporters of child sexual abuse. A September 2022 report by Spectrum News claims that 33 states specifically exempt clergy from reporting privileged information. A 2019 report by the U.S. Department of Health and Human Services identified just five U.S. jurisdictions in which clergy are mandated reporters and have no right to privileged communication about allegations of abuse: Guam, New Hampshire, West Virginia, Connecticut, and Mississippi.

Advertisements

Online Archives

Search