The project found that mandatory reporting remains the most common legal and policy intervention used by national and state governments internationally to try to enforce appropriate standards of safeguarding in public and voluntary organisations, including faith groups. The United Kingdom is increasingly an outlier internationally, however, in not having introduced any such mandatory reporting legislation through Westminster or its devolved governments.
Mandatory reporting has a long history. Whilst some countries, such as France and Norway, have very long-established laws which impose a legal duty to report knowledge to authorities which may avert serious crimes, mandatory reporting specifically referring to child abuse has existed in countries such as Australia and the United States since the 1960s.
As mandatory reporting legislation has been more widely introduced since then, the project found that there has been a variety of ways in which people with leadership, pastoral and ministerial roles within religious organisations have been included or exempted from its requirements. In many cases, until relatively recently, where countries had introduced mandatory reporting, clergy or faith leaders with pastoral responsibility have often been exempt on the grounds of the special sanctity of the confidentiality of their work. The foremost example has been the sanctity claimed for the confidentiality of information given to a priest through the Catholic rite of confession, although it has also been argued in some countries that such sanctity applies by analogy to any comparable form of ‘spiritual counselling’ undertaken by a religious leader. In Arizona, for example, the State law on mandatory reporting allows that religious leaders could withhold knowledge of child abuse if they believed that to do so was reasonable within ‘the concepts of the religion’. This led, for example, to a case of two bishops in the Church of the Latter-Day Saints in Arizona claiming such immunity from mandatory reporting in a case of extensive child sexual abuse in which the abuse had continued for six years after they had initially learned about it until it was discovered separately by law enforcement officials.
In more recent years, there has been a growing recognition of the important role that those with pastoral or ministerial roles in religious organisations often have in receiving information about abuse. National abuse inquiries and other investigations have also provided numerous examples of cases in which people with these responsibilities in religious organisations have not dealt appropriately with such knowledge in ways that have continued to put children at risk. As a consequence, over the past fifteen years, there has been a clear trend towards not allowing any religious exemptions for mandatory reporting requirements in either new legislation or amendments to existing legislation (e.g. in countries including France, Ireland and Australia).
Given the diversity of practice internationally in terms of religious exemptions from mandatory reporting requirements, the project found that it is hard for to sustain the argument that there is a timeless and universal right to such religious exemptions. In the majority of cases, faith communities presenting to different national abuse inquiries internationally have accepted their responsibilities to safeguard children and have not put forward objections to mandatory reporting requirements. Members of religious organisations have also proactively supported and developed good safeguarding practices, including mandatory reporting. There is decreasing evidence internationally of effective legal arguments that can be made to justify such exemptions. Public deference towards religious institutions which underpinned such exemptions in the past has weakened and there is less public acceptance that religious organisations should receive any special treatment in legislation such as mandatory reporting. Alongside this, there is a growing recognition that religious exemptions undermine the fundamental principle of promoting effective organisational responses to child abuse that mandatory reporting legislation is designed to achieve. Where religious exemptions to mandatory reporting requirements have been removed in some countries, there is evidence of religious organisations adapting their teaching and practices to be able to operate in accordance with this (e.g. the case of the Anglican Church in Australia). Claims of that certain religious practices have always been intrinsic to that faith community (e.g. the universality of the Catholic confessional) do not necessarily bear historical scrutiny, with such practices often only having developed and been considered as essential in particular times and places.
Given these international developments, the project has therefore found that there are no strong grounds for allowing religious exemptions for any future mandatory reporting legislation.
