Is it time to end the seal of the confessional?

I'll comment on Michael Bird's recent article:

https://www.spectator.com.au/2019/04/its-time-to-end-the-seal-of-the-confessional-the-religious-case/

I've discussed this before:

http://triablogue.blogspot.com/2019/02/the-seal-of-confession.html

Despite my relentless opposition to Roman Catholicism, I can't get on the bandwagon of this particular movement:

However, even an advocate for religious freedom like myself understands and accepts the arguments for requiring Catholic clergy to break the seal of confession and to provide mandatory reporting of child sex abuse. Religious freedom is an intrinsic human right, a key index for gauging freedom in any state, but it is not absolute and can be limited in instances of public safety.

There are several distinct issues:

i) Should a priest be free to break the seal of the confessional without fear of excommunication, under extreme circumstances? In a sense, I agree with that. However, passing a law won't change Roman Catholic policy. That's governed by canon law, not civil/criminal law. 

In addition, I reject the whole paradigm of auricular confession and absolution. So this is a solution within a flawed paradigm. The "sacrament" of penance needs to be scrapped. 

ii) Over and above the case of Catholic clergy, there's the issue of confidential information generally. And there's a crucial distinction between freedom to divulge confidential information and mandatory reporting laws. I don't concede that the state has the right to make private citizens agents of the state who are required to spy on each other and report back to the authorities. I don't think there should be an exception for clergy. Rather, I think private citizens in general should be exempt from mandatory reporting laws. Just think of totalitarian regimes, past and present, which enjoin citizens to rat out their neighbors. Bird's solution creates a different problem. 

Thus, within the New Testament, there is dominical tradition and apostolic precedent for prioritizing the safety of congregational members from sexual abuse and exploitation.

Second, there is an ethical argument that protecting children from sexual abuse is the greater good to be pursued. Most ethical dilemmas are usually on account of two valid ethical imperatives coming into conflict. For instance, one should not lie, but lying to the Gestapo to save a Jewish family hiding in your basement is the greater good. Similarly, protecting the penitent in confession is good. If a woman confesses to a priest her adultery and seeks absolution, then the priest shouldn’t blab to her husband or gossip to her friends since it would cause her harm and make her the subject of punishment after she has already shown contrition. So, protection of the penitent is a genuine good … but a greater good still is protecting children from harmful and repeated abuse. 

I agree with Bird that there's a prima facie duty not to violate information shared in confidence, but there are situations where that can be overridden by a higher obligation. That isn't unique to the confession of sin, but applies to information shared in confidence generally: say, between close friends. 

This is particularly persuasive if we consider that the degree of harm done to the victims by a penitent abuser is greater than the harm that would be done to the penitent abuser if he or she were reported to authorities. What is more, reporting a penitent abuser might actually be a form of protection for the abuser, protecting them from committing further crimes (dehumanizing themselves further), protecting them from suicide (which is common among sexual abusers), and from vigilante justice (also, not unheard of). The greater good of protecting vulnerable children exceeds the good of protecting the penitent from judicial punishment in this particular instance. It can also be regarded as being in the interest of the penitent to be prevented from committing further sexual abuse and beginning the journey towards psychological and pastoral treatment.

You have to wonder how Bird can be so blind to the obvious. The primary source of the problem isn't lay Catholic abusers confessing to a priest, but abusive priests (bishops, and cardinals). An abusive priest isn't going to volunteer incriminating information about himself. Breaking the seal of the confessional is beside the point, since the source of the problem is the confessor, not the penitent. An abusive priest isn't going to turn himself into the authorities. The solution is to have a screening process that filters out homosexual applicants to the priesthood (and their evangelical counterparts). 

Third, Catholic faith requires both organic development of its doctrine and resourcement of its ancient tradition to effectively address the problem of abusive priests. The origins of penance and the seal of the confession are developments from the medieval and counter-reformation periods. Just as the seal of the confessional was a necessary development to ensure the confidentiality of the confessional and to prevent the exploitation of the contrite, so too is it now necessary to develop a theology and practice to protect the victims of the penitent in the case of sexual violence.

Actually, I suspect the justification is mainly pragmatic: few Catholics will confess their sins to a priest if they think that will be become a topic of gossip or be used against them. 

Fourth, there is a valid legal argument for government interfering in the sanctity of the confessional. According to the International Covenant on Civil and Political Rights § 18.3, concerning religious freedom: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” Religious freedom is invaluable in a secular and pluralistic democracy, but it is not absolute. A person’s religious freedom can be curtailed if it burdens the rights of other persons, like the right to life and the right to safety from harm. That is why governments can limit religious freedom when and only when it is necessary to ensure someone’s safety. One could sensibly argue that the seal of the confessional, insofar that it protects abusers and perpetuates abuse; causes harm to members of the public and therefore can be legitimately curtailed. Now, the limitation of religious freedom should not be deployed in illegitimate circumstances (see the Siracusa principles on the limitation and derogation of provisions), and nothing here illegitimates the seal of the confessional in normal circumstances. However, international law on religious freedom provides legal grounds for limiting religious freedom in order to defend the rights and lives of others.

i) One problem is with the generic category of "religion". I agree that religious freedom isn't absolute, but all religions weren't created equal. There's a problem when, for instance, you chain the fortunes of Christianity to Islam when it comes to religious freedom. 

ii) And, once again, the seal of the confessional doesn't usually protect abusers since the abusers were usually homosexual priests rather than laymen. Why can't Bird make that elementary connection? 

Fifth, Catholics may also wish to consider a missional reason for changing their practice of confession and the seal of the confessional. The sexual abuse scandals that have rocked the Roman Catholic Church all over the world have tarnished, perhaps irreparably, the reputation of the church for a whole generation. 

The abuse, its cover up, the refusal to address its underlying causes, the failure to listen to victims, and the unwillingness to make reporting mandatory, has led to an exodus of people from the church, and represents an insurmountable barrier for the Catholic church to connect with the unchurched public. I fear that a haemorrhaging of the laity will continue for Catholics and their mission to make Christ known will prove ineffective until a comprehensive pastoral review of its clerical standards and sacramental theology is undertaken.

i) It's a good thing that the Catholic church is hemorrhaging members. It's a good thing that this represents an insurmountable barrier for the Catholic church to connect with the unchurched public. It's a good thing that this scandal has brought the Catholic church into disrepute.

ii) But the problem runs deeper than the clerical seduction of boys. Consensual homosexual conduct by members of the Catholic clergy is also discreditable, from the standpoint of Christian ethics. Homosexual activity is the fundamental problem, of which pederasty is just one expression and symptom.