by Frank Schnittger
Mon Jul 25th, 2011 at 10:29:45 AM EST
The debate around clerical child sex abuse continues to reverberate around the Irish polity with the Vatican calling for a more "objective" debate and withdrawing its ambassador to Ireland for "consultations" in response to the Taoiseach's stinging criticism of the Vatican's role in the crisis:
Taoiseach's speech on Cloyne motion
Because for the first time in Ireland, a report into child sexual-abuse exposes an attempt by the Holy See, to frustrate an Inquiry in a sovereign, democratic republic...as little as three years ago, not three decades ago.
And in doing so, the Cloyne Report excavates the dysfunction, disconnection, elitism....the narcissism .......that dominate the culture of the Vatican to this day.
The rape and torture of children were downplayed or `managed' to uphold instead, the primacy of the institution, its power, standing and `reputation'.
Far from listening to evidence of humiliation and betrayal with St Benedict's "ear of the heart"......the Vatican's reaction was to parse and analyse it with the gimlet eye of a canon lawyer.
I had a letter to the editor published in the following Sunday Business post (below the fold) which dealt with one aspect of the controversy: The proposal, by the Government, to introduce legislation which would require mandatory reporting of reasonable suspicions of child abuse regardless of how those suspicions came to the attention of the person in question. The most controversial element of this proposal is that it would require a priest to break the "seal of the confessional" if someone confessed to child abuse.
There is a danger that the political response to the public anger over the revelations in the Cloyne report will be tinged more with revenge and attempts to eliminate the influence of the Vatican over Irish affairs than it is with concerns over child welfare per se. Leaving aside that private confessions are rarely heard any more, and that where a traditional confessional box is used the priest may not know the identity of the person making the confession, are there larger issues of principle surrounding civil liberties at play here? Under what circumstances should a private conversation between (say) a bishop and a priest, a doctor or therapist and his patient, a lawyer and his client or a husband and wife, be regarded as privileged?
My letter argued that the issue of child protection is paramount:
LETTERS to the editor | The Post
The debate about the Cloyne Report has quickly reduced in many instances to one around sacerdotal privilege, and particularly "the seal of the confessional".
About the only relevance of this debate to what is documented in the Cloyne Report is the allegation that the Bishop of Cloyne prepared two reports on a particular child abuser: one for Rome in which he noted that the priest concerned had admitted the offence, and one for the Health Service Executive in which that admission was not included, allegedly on the grounds that this admission may have been part of a privileged conversation between the priest and his bishop.
It is important that any ambiguity or confusion surrounding "privileged'' conversations should be removed, both for the welfare of children and for the good conscience and reputation of those with responsibility for the welfare of children.
Why should parents entrust their children to priests if they have no guarantee that their children's welfare will be the priest's overriding concern?
In practice, it may be rare for paedophiles to admit their crimes in the confessional or as part of "privileged" conversations, and they are even more unlikely to do so if they know that such an admission will be reported to the civil authorities.
Although it is possible to imagine an emotive test case, the likelihood of prosecutions for the non reporting of abuse seems remote if only because it is rare for evidence of such non-reporting to come to light.
However, it is important that the primacy of the laws of the land over Canon Law be firmly established. The crisis in the Roman Catholic Church has come about partly because bishops and those in authority viewed their responsibilities to obey Canon Law as being superior to any responsibilities they owed to the Irish state.
This led to the Vatican instructing bishops and priests to ignore their civil responsibilities and report only to Rome in documents such as Crimen sollicitationis.
This in turn led to offending priests being moved from one jurisdiction to another, and the prioritisation of the interests of the institution over the welfare of children.
However, I am not a legal expert, and was surprised by arguments by Santiago in the course of a long conversation on a draft of the LTE in my previous diary which seemed to me to:
- Minimise the institutional responsibility of the Catholic Church in all of this
- Minimise the heinousness of the crime of child abuse, and, (in later comments) to
- Regard the intrusion of state power in private relationships as a greater danger than the incidence of child abuse itself
I have thus read up a bit more on the concept of privileged conversations and came across the following on this US site:
Legal Definition of Privileged Communication
Conversation that takes places within the context of a protected relationship, such as that between an attorney and client, a husband and wife, a priest and penitent, and a doctor and patient. The law often protects against forced disclosure of such conversations. However, there are exceptions that can invalidate a privileged communication, and there are various circumstances where it can be waived, either purposefully or unintentionally.
Those statements made by a client to his counsel or attorney, or solicitor, in confidence, relating to some cause Or action then pending or in contemplation. Such communications cannot be disclosed without the consent of the client. In judicial proceedings, the law allows people to refuse to disclose the contents of certain privileged conversations and writings. Communications between an attorney and client, husband and wife, clergyperson and penitent, and doctor and patient are all privileged. In a few states, the privilege extends to a psychotherapist and client and to a reporter and her source.
To qualify for privileged status, communications must generally be made in a private setting (that is, in a context where confidentiality could reasonably be expected). The privilege is lost (waived) when all or part of the communication is disclosed to a third person.
These privileges are held by the client (but not the lawyer), the patient (but not the doctor or psychotherapist), the speaking (but not the spoken-to) spouse and both the clergyperson and the penitent. The lawyer, doctor, psychotherapist and spoken-to spouse, however, cannot reveal the communication without the other person's consent. The client, patient, speaking spouse, clergyperson and penitent may waive the privilege (that is, testify about the conversation) and also may prevent the other person from disclosing the information.
One of the annoying things one finds when googling around the legal blogosphere as a lay person is that many sites are very non-specific as to which jurisdictions their prognostications refer to, and even the "About us" section fails to state what jurisdiction the advice given refers to. I am sure that different nuances to the law apply in different jurisdictions, particularly with regard to journalists and their sources and lawyers and their clients. (I am under the impression, for instance, that a Barrister, under Irish Law, is an officer of the court and can lose his licence if a client admits culpability to him and he subsequently argues otherwise in court - but haven't able to find an Irish source to confirm this).
So what is the position regarding privileged conversations in your jurisdiction? To what extent does the public good trump the right to private privacy? If we extend privilege to conversations between a Bishop and his Priest, why not between an employer and his employee? After all an employee's prospects may be adversely effected if he testifies against his employer, and Ireland has yet to enact whistle-blower legislation.
But the bigger issue, for me, is the rights of the child in all of this. After all privileged conversations are generally between relatively powerful adults whose interests in self preservation may trump the welfare of the child. Ireland is due to enact a constitutional amendment in a referendum on the rights of the child in the next year or so. Should that amendment include a provision that the welfare of children should trump the rights of adults to have privileged conversations about them? Who speaks for the rights of the child in all of this?