Jeremy Bentham on the seal of confession

Jeremy Bentham (1748-1832) was a philosopher, economist and writer on jurisprudence. He is most well-known for his development and expounding of utilitarianism. He considered that the object of legislation should be “the greatest happiness of the greatest number.” Bentham was an atheist, and a strong proponent of the separation of Church and State. In 1827, John Stuart Mill edited Bentham’s writings on jurisprudence into the five volume Rationale of Judicial Evidence.

His opinion concerning the seal of confession is of topical interest. In Rationale, Bentham considers the case where priests can be forced to testify concerning any felony, but the application to the case of child sexual abuse is obvious, though less widely applicable.

Bentham takes as context for his arguments a country in which Catholicism is “barely tolerated,” and its withering desired, though no coercion is applied to that end; for example, the United Kingdom of the early nineteenth century. Of countries where Catholicism is granted equal standing with other religions – contemporary Australia for instance – he writes that the necessity of protecting the seal of confession “will probably appear too imperious to admit of dispute.” Apparently not.

There are two strands to his argument. In the first, he argues that, if priests were obliged to reveal confessional conversations about criminal matters, criminal prosecutors would, as a matter of course, call a Catholic accused’s confessor to testify. In any case, the possibility would inhibit the penitent in confession. To quote Bentham:

A regulation to any such effect would therefore be a virtual proscription of the exercise of the Catholic religion.

The atheist Bentham understood, as today’s legislators and royal commissioners (and not a few priests) pretend not to, that the Sacrament of Penance is essential to the practice of Catholicism.

The other head of argument is that the regulation is “preponderantly vexatious”; that is, in the main it would be unreasonably burdensome to those affected, without any corresponding benefits. Penitents could only restore themselves to good grace with God at the risk of the exposure of their crime; while to remain without absolution is at the risk of their immortal soul (although Bentham does not use such an expression.) To priests, “it would be an order to violate what…is…amongst the most sacred of religious duties.”

The advantage gained by the coercion—gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. …the alarm itself…would be a most extensive as well as afflictive grievance.

He then addresses the losses to the body politic incurred by this policy. The Sacrament of Penance exists to restore the sinner to a life of Grace. It is called Penance, because that is required, along with a firm intention of amendment. The words of Jesus were, “Go, and sin no more,” and that is the basis of the Sacrament. The fact that anti-Catholic and anti-Christian bigots, who refuse to comprehend this, infest the media and seemingly the Parliament and the courts, does not alter the reality.

Confession of crime, Bentham says, is of service to justice precisely because of the assurance that it will stay in the confessional. The service is in repentance, reformation, amendment and possible reparation: “such are the well known consequences of the institution.”

Further, even if the penitent shows no sign of permanent amendment, it may well remain to the priest, provided it can be done without risk of drawing attention to the penitent, to make arrangements that interfere with possible future crimes. This opportunity for the prevention of crime would not exist without the seal.

All of these arguments apply to the legislation in Queensland, but this legislation is a refinement of perniciousness in a number of ways. There were cases scattered through nineteenth century in which a priest was called to break the seal in testimony. When he refused, he was committed for contempt of court. All of the ill-effects sketched above were in play, but the priest was not required to initiate a prosecution by betraying the penitent to the police.

The Queensland legislation affects priests in two ways. A priest commits a crime if he “knows there is a significant risk” that an adult alleged offender will commit a child sexual offence, and the priest is associated with an institution. Maximum penalty:five years. One can be “associated” with an institution by “providing a service” to a child in the institution. For example, a priest visiting a school to provide religious instruction, and perhaps hearing some confessions. If a teacher at a school confesses to a visiting priest his sexual attraction to pubescent boys, also confessing that he has not acted on the attraction, does that constitute a “significant risk”? How does the priest determine that? If he does not know the penitent well, can he be sure he isn’t being set up? No actual child sexual offence needs to have been committed to make an offender of the priest. This is a nightmare, made exponentially worse by the memory of the pernicious prosecution of Cardinal Pell. What is being criminalised here is failure to report the possibility that a crime might be committed. Chew that over. This is the Department of PreCrime, Queensland style.

It is also now a crime if an adult, say a priest, “gains information that causes the adult to believe on reasonable grounds, or ought reasonably to cause the adult to believe, that a child sexual offence is being or has been committed…” (My emphasis.) Note that is not necessary to show that the priest actually believed such a thing. Still, this one is only worth three years.

There are “reasonable” excuses. One of these is that the alleged victim has since turned sixteen, and the priest “reasonably believes” that the victim does not want the information disclosed. This opens a window onto an important aspect of the Sacrament, and an absurdity in the legislation. Ephebophilia, the sexual attraction to adolescents – in these cases generally boys – is a major driver of child sexual abuse. If a sixteen year old tells a priest in confession about abuse, but does not want that revealed (he is, after all, in the confessional) then the priest has an “excuse” not to reveal it. If the same thing happens with a thirteen, fourteen or fifteen year old, it is a crime not to violate the seal of confession. Are the latter not able to assess whether they want the story told, while a sixteen year old can?

For some victims of abuse, the security and privacy of the confessional is their only refuge. They are unable or unwilling to reveal the abuse, but in the confessional they can safely seek the counselling they desperately need. The very fact that this “excuse” has been written into the legislation shows that this is understood, but as far as our legislators are concerned, teenaged victims have no choice in the matter until they have turned sixteen. Yet these same legislators wring their hands and broadcast how much they care about the children. They care not so much about the children, as about the politics.

Bentham wasn’t finished, in the Rationale, on the topic of the shielding of confidential discussions. Ought a lawyer, he asks, be compelled to give evidence concerning conversations with his client – party, plaintiff, or defendant? “Answer: Yes.

The considerations which forbid the compelling or admitting the Catholic confessor to disclose misdeeds revealed to him in confession … neither these nor any other considerations of a like tendency, will be found to have any application to the lawyer’s case.

None of the salutary effects of confession, says Bentham, – repentance, remorse, amendment, reparation, the prevention of further crime – apply in the case of the lawyer for a guilty criminal or dishonest plaintiff or respondent. The profession, in his observation, was mired in hypocrisy.

It is a maxim among the brotherhood—a maxim not only acted upon but avowed…—that right and wrong are creatures of their creation…

It is in virtue…of this same maxim, that, for the benefit of Self and Co. they have licensed Co. to render to malefactors that sort of support and encouragement for the rendering of which, those to whom they have not communicated the licence are, under the name of accessaries after the fact, dealt with by them as felons.

As in Bentham’s day, the “confessions” of clients to their lawyers are still, of course, protected by professional privilege. To the best of my knowledge, no-one has suggested that the seal of lawyer-client confession be attacked in the same way and for the same reasons. The same police force that persecuted Cardinal Pell is now the subject of another royal commission because of systematic violation of that privilege in cases which were not focussed on the protection of children.

How heart-warming it is to see the number of lawyers who draft our legislation and warm the leather in our Parliaments.

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