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  • Written by Hadeel Al-Alosi, Lecturer, School of Law, Western Sydney University
The Conversation

Yesterday, Victorian Parliament finally debated a bill on whether religious ministers should be forced to disclose child abuse admitted in confidence to a priest.

The Victorian Children Legislation Amendment Bill 2019 follows the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse in 2017, which revealed the many failures of churches to report allegations of child abuse.

Read more: Should priests be made to report child abuse revealed in confession?

But the proposed law reform has sparked strong opposition from some religious ministers. Melbourne Archbishop Peter Comensoli said he would rather go to jail than report a person who confessed committing child sexual abuse. He said:

I will speak to the person there and then about how they will need to, one, go to the police about this […] and two, I’d be asking at the end of the confession to then repeat what they said outside of the seal so that I can then act.

And Child Protection Minister Luke Donnellan told the ABC this morning that even the Melbourne Archbishop, the state’s most senior Catholic, is not above the law. He said:

If people break the law they would be prosecuted.

Several Australian state governments, including New South Wales and South Australia, have already passed laws legally obliging religious leaders to report confessions of child sexual abuse. Victoria will be following their lead if the law passes through both houses.

The bill proposes several changes to strengthen the protection of children, on top of the proposed amendment of making it mandatory for religious ministries to report child abuse to protection authorities.

Read more: The causes of paedophilia and child sexual abuse are more complex than the public believes

This includes limiting the right of appeal of those whose Working With Children Check application has been rejected if they have been charged with, or convicted of, certain criminal offences. But unlike the amendment for religious ministries, some of these changes are unlikely to attract opposition.

What are Victoria’s mandatory reporting laws?

Mandatory reporting refers to the legal requirement for selected professionals to report suspected child abuse to protection authorities.

Under Victorian law, mandated reporters must report child abuse if, in the course of practising their profession, they hold a reasonable belief a child has been harmed, or is of significant risk of harm. The harm may be physical or sexual abuse.

Read more: Royal commission recommends sweeping reforms for Catholic Church to end child abuse

Mandatory reporters must disclose their suspicion as soon as possible after forming the belief. If they fail to report, then the penalty is currently 10 penalty units, which adds up to a maximum fine of A$1652.20.

Failure to report can also be a criminal offence. Under the Victorian Crimes Act 1958, a person who doesn’t disclose a sexual offence committed against a child under 16 can be imprisoned for up to three years.

Under the Children, Youth and Families Act (Vic), the main group of professionals listed are doctors, midwives, nurses, police officers, principals, early childhood workers, teachers, youth justice workers, and registered psychologists.

Read more: Media Files: Investigative reporter Louise Milligan on Cardinal Pell and redactions in the Royal Commission's report

A notable profession missing from this list are members religious ministries, but that might soon change if the Children Legislation Amendment Bill 2019 is passed.

The new bill is controversial because it effectively breaks the so-called “confessional seal”.

What is the confessional seal?

The confessional seal is fundamental to Christian religions. It’s where a person can ask a priest, in confidence, to forgive them for their sins.

The sacrament is believed to wash sinners clean from their sins and reconcile with their Lord and the Church.

Breaking the seal is forbidden under canon law – the special rules governing the Catholic Church. And a priest who discloses a confession faces punishment, such as ex-communication.

Read more: Politics with Michelle Grattan: Father Frank Brennan on Israel Folau and religious freedom

Religious liberty vs child protection

Melbourne Archbishop Peter Comensoli is just one of many priests who said they are “willing to go to jail” rather than break the seal.

Others, however, have shown support for the law. Child Protection Minister Luke Donnellan said:

It’s pretty simple: if you think a child is being abused, you have to report it. And we’re committed to driving this cultural change to make Victoria safer for our children.

But the response from some priests has shown that reporting confessions is not that simple. Some refuse to break the seal, seeing the law as an attack on religious freedom.

Read more: Women priests could help the Catholic Church restore its integrity. It's time to embrace them

Attorney General Jill Hennessy has rejected the “religious liberty” argument, claiming:

I don’t think in contemporary and mainstream times, knowing what we know now, that we can do anything other than say the rights of children trump anyone’s religious views.

Chrissie Foster, an advocate for anti-abuse, actively has publicly welcomed the proposed law. Her two children were sexually abused by a Catholic priest, and she has described the proposed law as a “breakthrough” and says politicians backing the law should be “congratulated”.

Arguably, if priests had not been exempted from mandatory reporting laws, many sexual abuses could have been prevented.

Read more: The Catholic Church is headed for another sex abuse scandal as #NunsToo speak up

For instance, consider the case of Michael McArdle, who confessed to 30 priests he had sexually abused children up to 1,500 times.

Complying with the confessional seal, the priests did not report the abuses and instead allegedly advised McArdle to “pray more”.

Only time will tell

Far too many children have suffered sexual abuse while in the “care” of religious institutions and change is necessary. The Labor government claimed these new laws will “better protect Victoria’s children”.

But how can such a law protect children in the future if religious minsters choose to ignore it?

Read more: After Pell, the Catholic Church must undergo genuine reform

With the Catholic Church accounting for 61.8% of sexual abuse allegations investigated by the Royal Commission, the proposed legislation seems pointless without the Catholic Church’s support.

For now, the future of the proposed law and its effectiveness remains uncertain. The bill is expected to pass both houses of Victorian Parliament because it has bipartisan support. But only time will tell whether the proposed law passes and whether it will achieve its purpose.

Only one thing remains certain: the victims and survivors of child abuse will remain in our prayers and thoughts.

Authors: Hadeel Al-Alosi, Lecturer, School of Law, Western Sydney University

Read more http://theconversation.com/the-melbourne-archbishop-said-hed-rather-go-to-jail-than-break-confession-confidentiality-a-new-bill-could-send-him-there-121869

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