ANALYSIS: The controversy between the Vatican and the Government should not deflect attention from broader issues related to mandatory reporting.
HOWEVER THE dispute between the Vatican and the Government over the Cloyne report is resolved, the fact remains that it identified systematic covering up of abuse by church authorities.
But, neither it nor other reports on abuse within the Catholic Church referred to the seal of the confessional as an issue, let alone identified it as a major obstacle to apprehending offenders.
Nor is it mentioned in the outline of proposed legislation on mandatory reporting.
This issue was raised at a press conference where the scheme of the proposed legislation on mandatory reporting was published, and has been the subject of debate since.
This has diverted attention away from a necessary debate on the proposals themselves.
According to the Scheme of a Bill published by the Minister for Justice in July, “a person will be guilty of an offence if he or she knows that an arrestable offence has been committed against a child or vulnerable adult, has information that would be of material assistance and fails without reasonable excuse to disclose this information as soon as it is practicable to a member of the Garda Síochána.”
Failure to do so will leave the person open to prosecution and imprisonment for up to five years.
There is no distinction made in the legislation between offences committed in the recent past and those committed years or even decades ago. Nor is there any distinction made between a disclosure from a perpetrator or from a victim.
For example, a person under investigation for possession of child pornography might be advised by his solicitor to attend a counsellor. He does so, and there discloses that many years earlier he had abused a child, though he has not done so since, satisfying himself with pornography, a problem he now acknowledges he must face.
The victim never disclosed the abuse, and appears to have put it behind him.
Under the proposed law, the counsellor would be obliged, on pain of prosecution, to report this person to the Garda, who would then have to go to the victim and ask him to make a complaint.
This requirement could well deter people from seeking help where they fear themselves they may be a danger to children.
The counsellor could seek protection in the exemption “without reasonable excuse” proposed in the Scheme of the Bill. But what is a “reasonable excuse” in this context?
This issue was examined by former attorney general Michael McDowell SC in another context in an article recently, when he criticised the use of the same phrase in the just enacted Criminal Justice Act, intended to deal with white collar crime.
“What exactly is meant by the term ‘without reasonable excuse’?” he asked. “Does it mean ‘reasonable to the person withholding the information’ or does it mean ‘reasonable in the eyes of the State’ or does it mean both?”
He pointed out that in the High Court recently Mr Justice Kearns struck down as unconstitutional a section of our immigration law on the grounds that the offence of failing to produce identity documents “without satisfactory explanation” was impermissibly vague.
Mr McDowell also pointed out that this could be used against journalists seeking to protect their sources.
The same is true for journalists to whom a person might disclose having been sexually abused in the past, while requiring that their identity should not be disclosed in any article on the subject. Could the journalist face prosecution in such circumstances?
Doctors and solicitors traditionally enjoy a privileged relationship with their patients or clients, though this is not absolute. This means that what a person tells their doctor or lawyer is confidential, unless he or she gives permission otherwise.
A solicitor cannot rely on privilege where he or she learns that a crime is being committed.
For example, solicitors are required to report if they think they are being asked to facilitate money laundering in specific transactions.
A solicitor to whom a client reveals plans for a future crime must tell the authorities.
However, he is not obliged to report on past crimes and it is contrary to professional ethics to do so. This form of privilege has constitutional protection.
A difficult situation could also arise for family lawyers. In certain highly contested family law cases one party, typically the mother, can make allegations of sexually abusing the children against the father.
Will the solicitors in the case be obliged to report this to the Garda, with all the attendant trauma for the children, even if the allegations are without foundation?
A doctor could also find him or herself in a difficult position if it emerged that a young patient who was pregnant and in need of medical care had been abused, and if she threatened to abandon all medical assistance, or indeed harm herself, if the abuse was disclosed to gardaí.
Is the doctors primary duty to the child patient, rather than the State? Is the situation different if there are other potential child victims in the control of the alleged abuser?
This brings us back to the confessional, though its situation is slightly different in that the Constitution protects freedom of religion, and the courts have found this means the State must make provision for religious practice.
Constitutional lawyer, Gerry Whyte of Trinity College, points out that this is not an absolute. “Where the case is compelling enough the State could break the seal of the confessional, but there is a question as to whether a compelling case has been made out,” he said. Clearly such a compelling case would exist where children were in continuing danger.
Frances Fitzgerald has rightly stressed that what is needed from this legislation is “a culture where child protection is taken seriously”.
This means that broad brush strokes are not enough and the focus must be on vulnerable children, not on retribution.
A catch-all requirement that may actually prevent those who abused in the past from seeking to ensure they never do so again, or which may deter vulnerable teenagers from seeking medical help, or traumatise children caught up in a family law dispute, will not serve the objective of enhancing child protection.