The Catholic practice of confession, also known as the Sacrament of Reconciliation, allows individuals to seek spiritual absolution by confessing their sins under a seal of confidentiality. However, this practice has long been in tension with legal obligations regarding the reporting of crimes, particularly child abuse.
The principle of the "seal of confession" holds that a priest cannot disclose what is confessed to them under any circumstances, a rule that is deeply embedded in Catholic doctrine. However, secular law in Australia increasingly requires mandatory reporting of certain offences, raising questions about whether this religious obligation can stand against legal duties.
The following outlines whether a priest can (or is compelled to) report a crime that was confessed to them, noting both special rules that apply in circumstances of child abuse as well as other serious criminal offences.
Mandatory Reporting Laws in Australia
Every State and Territory in Australia has mandatory reporting rules, which mean that members of certain professions must report certain crimes if they become aware of them. These laws are primarily designed to protect children from abuse and neglect, ensuring that authorities can intervene at the earliest possible stage.
For example, in NSW section 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) imposes a duty on persons in certain professions, including priests, to report children at risk of significant harm to the Department of Communities and Justice.
A child or young person is considered "at risk of significant harm" if there are current concerns for their safety, welfare or wellbeing due to specific circumstances. These include unmet basic physical or psychological needs, lack of necessary medical care, failure to provide required education, exposure to or risk of physical or sexual abuse, living in a household with domestic violence leading to serious harm, experiencing serious psychological harm due to caregiver behaviour or being the subject of a pre-natal report where the birth mother failed to engage with support services to address risk factors. The risk may arise from a single act or omission or a series of such acts or omissions.
Similar mandatory reporting obligations exist in all other jurisdictions in Australia, although there are some variations in scope and applicability.
New South Wales, Tasmania and Northern Territory
New South Wales, Tasmania, and the Northern Territory all require reporting of all five recognised forms of child maltreatment: physical abuse, sexual abuse, emotional abuse, neglect and exposure to family violence, although the precise definitions of these terms vary. Northern Territory is also unique in that mandatory reporting requirements aren't limited to specific professions, meaning all adults are legally required to report child abuse (including child sex abuse), making it the broadest mandatory reporting scheme in Australia.
South Australia
South Australia on the other hand only requires the reporting of physical abuse, sexual abuse, emotional abuse and neglect. This means that exposure to family violence, while still a significant risk factor, does not trigger a mandatory reporting obligation in that jurisdiction. Further, Victoria and the Australian Capital Territory mandate the reporting of only for physical and sexual abuse of a child.
Queensland
Finally, Queensland and Western Australia have multiple legislative provisions governing mandatory reporting, each covering different professions and forms of abuse. In Queensland, some professionals are mandated to report both physical and sexual abuse, while others must only report sexual abuse. Currently, this obligation does not extend to religious confessions meaning a priest is not legally obligated to disclose any information received in confession, even if it relates to child abuse. Finally, in Western Australia, all mandatory reporters must report sexual abuse, and those under the Family Court Act may have additional obligations. Currently, Western Australia does not include religious confessions in its mandatory reporting obligations for child abuse.
The Offence of Failing to Report a Serious Crime
Most jurisdictions in Australia also have separate offences relating to failing to report a serious crime to police. These provisions are distinct from mandatory reporting laws, as they apply to all adults, not just those in specific professions.
For example, in NSW section 316 of the Crimes Act 1900 (NSW) makes it is an offence for an adult who knows or believes that a serious indictable offence has been committed, to fail (without reasonable excuse) to report information that may assist in apprehending, prosecuting or convicting the offender. The maximum penalty for this offence varies depending on the severity of the crime that has been concealed but can range from 2 to 5 years imprisonment depending on the severity of the offence not reported.
What Constitutes a Reasonable Excuse Not To Report a Crime?
A reasonable excuse for non-disclosure exists if the offence is a sexual or domestic violence offence against an adult who does not wish the information to be reported.
A separate offence also exists under section 316A of the Act if an adult knows, believes, or reasonably ought to know that a child abuse offence has been committed, to fail (without reasonable excuse) to report information that may assist in apprehending, prosecuting, or convicting the offender. Again, the maximum penalty depends on the seriousness of the concealed offence ranging from 2 to 5 years imprisonment.
A reasonable excuse for non-disclosure includes belief that the information is already known to police, prior reporting under child protection laws, fear for safety, or if the victim, as an adult, does not wish the information to be reported.
Similar laws have been enacted in all States and Territories in Australia.
Does the Seal of Confession Offer Legal Protection to a Priest?
There is no law in any State or Territory in Australia preventing a priest from disclosing a crime to authorities which they heard about via confession. However, priests have historically refused to do so citing the sanctity of the confessional seal.
Moreover, in all States and Territories (except for Queensland and Western Australia) priests are mandated by statute to report confessions of child abuse to authorities should they become aware of it.
In regard to serious crimes other than child abuse, whether a priest is mandated to report will depend on whether the information disclosed to them could assist in "apprehending, prosecuting or convicting the offender". If it can, and they fail to disclose, the priest could be risking a criminal penalty for not providing such information to police.
Some Catholic leaders have expressed strong opposition to these legal changes, arguing that forcing priests to break the seal of confession undermines religious freedom and could deter individuals from confessing crimes at all. Others have suggested that priests should encourage offenders to confess directly to law enforcement as a way of resolving the tension between religious obligations and legal requirements.
As legal reforms continue to evolve, it remains to be seen how strictly these provisions will be enforced and whether any priests will be prosecuted for failing to report crimes disclosed in confession.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
