Folia Theologica et Canonica 11. 33/25 (2022)

Ius canonicum

MANDATORY REPORTING LEGISLATION AND THE SEAL OF CONFESSION... 129

land11 and New Zealand12 and the USA—than in the European civil law. The recent discoveries of abuse in most of those countries greatly hurt the reputation of the Church, since the cover up was mainly perpetrated in order to protect the reputation of the Church rather than to protect the victims. Therefore, an outrage on the part of these countries is understandable; but it should not lead to another injustice, violation of religious freedom and abuse of the sacrament of confession.

While commonly it is accepted that the priest-penitent privilege existed in Catholic England, there is some disagreement as to how the priest-penitent privilege disappeared. Whittaker holds that the privilege disappeared “as the Anglican Church and other Protestant movements, which did not require auricular confessions, rose to prominence in England.”13 Wigmore similarly concluded in his research that “the papal ecclesiastical practices prior Henry VIII, including the seal of confession had been abolished”.14 A. K. Thompson on the other side will conclude that in England, “there was a practical recognition of the confession privilege as late as the seventeenth century”; however, it was expressly defined as it is expressed in modem statutes.15 It seems that one of the main reasons why the British common law provides little or no clergypenitent privilege lies in history, namely in the establishment of the Church of England, which took the direction rather of embracing the Protestant Reformation in several aspects of the doctrine and discipline - and therefore departed from recognizing Catholic doctrine and discipline, in this case, the sacrament of penance and the seal of confession.

After Australia took an extreme position in their mandatory reporting legislation requiring priests to report child abuse even when learning about it within confession, it seems that New Zealand and the UK might follow its path. The Royal Commission in New Zealand is expected to deliver its recommendations and report by June 2023,16 while some groups such as SNAP (Survi-11 Ibid. 84—85; for the Mandatory Reporting Children’s First Act see here: https://www.rdj.ie/insights/mandatory-reportingchildrensfirstact2015?s=0.707985914737&utm_source=Mondaq &utm_medium=syndication&utm_campaign=LinkedIn-integration_(consulted: 11.6.2021).

12 Catholic Church in NZ commits to sexual abuse changes including mandatory reporting legislation, cf. https://www.nzherald.co.nz/nz/catholic-church-in-nz-commits-to-sexual-abusechanges-including-mandatory-reporting/JFEHZTGNCVBP5HDNMX4UMEH7SU/ (consulted: 1/23/2023).

13 Whittaker, L. K., The Priest-Penitent Privilege: Its Constitutionality and Doctrine, in Regent University Law Review, https://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v 13nl /13RegentULRev 145 .pdf (consulted: 1/31/2023).

14 Wigmore, J. H., Evidence in trials at common law (revised by McNaughton, J. T.), Boston-Little Brown, VIII. 1961. 869; cf. Thompson, K., Religious Confession Privilege and the Common Law, 58.

15 Ibid. 58.

16 Catholic Church in NZ commits to sexual abuse changes including mandatory reporting legislation: https://www.nzherald.co.nz/nz/catholic-church-in-nz-commits-to-sexual-abuse-changes-