21 June 2019 05:14 AM

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ISHAN SHIVAKUMAR | 18 OCTOBER, 2018

Religious Cover For Rape Versus The Law

To confess or not to confess, that is not the question


Sexual abuse and rape of young girls and women is rampant in India. In 2016, according to the National Commission for Women (NCW), every hour, two girls below the age of 18 years were raped in India - despite the act being a serious criminal offence. Only seldom does rape and fatal assault of a young woman, as in the exceptional 2012 Delhi Nirbhaya gang rape case, generate moral outrage and lead to massive public protests and legislative reforms. Such manifestations of public anger are rare.

This is because sexual abuse, a common occurrence, is shrouded in silence due to the stigma and fear surrounding the reporting of it by women. But rape is no secret. Besides the daily headlines in Indian newspapers, even Bollywood films have tended to normalise such behaviour (fortunately much less so now than some three decades ago) by including a rape scene to boost the popularity of films. In fact, the claim to fame of many actors was the specialist role they played as rapists.

Rape and sexual abuse are terrible offences, but they become even more so when they are committed under the cover of religion.

Two recent sex scandals in the Church have rocked India. In the first, four priests of the Malankara Orthodox Syrian Church in Kerala were accused in July 2018 of using confessional accounts to blackmail and rape a woman. According to the victim’s statement, the sexual abuse began in 1999 when Abraham Varghese, then a Seminary student, forced himself upon her and started blackmailing her to continue their relationship by threatening to reveal it to her husband.

In 2009, before the baptism of her daughter, the woman confessed about her affair to another priest, Job Mathew, who also used her confession to blackmail her and demanded sexual favours. The helpless woman then turned to Johnson V Mathew, another priest who was once her classmate. He too allegedly assaulted her. The fourth priest, Jaise K George, also took advantage of her when she went to him for counselling due to the trauma. According to the woman, all the four priests knew that the others had been sexually abusing her.

Frustrated with the lack of action being taken against the accused, nuns from Kerala staged a a public protest when the police and the State failed to take any action. A few Catholic feminists from the Archdiocese of Mumbai wrote to Pope Francis in Vatican requesting him to immediately intervene and use his position to deliver justice. “We are feminists and have been actively working towards preventing and combating, gender-based violence through our respective organisations' work. We have always, personally considered our work to be a logical extension of our faith, in service of humanity, especially the marginalised.”

In the second case, Bishop Franco posted at the Roman Catholic Diocese of Jalandhar (in Punjab) was charged with allegedly raping a nun multiple times between 2014 and 2016 during official visits to Kerala. According to the complainant, on May 5, 2014, the Bishop called her in the night to his room at the guest house while visiting the convent in Kuravilangad (in Kerala) and forced her to have unnatural sex with him. The nun has alleged that the bishop raped her 13 times between 2014 and 2016.

The National Commission for Women (NCW) investigated both these incidents. In its report on these two cases of sexual abuse, the NCW has recommended that the Government should abolish the practice of confession in churches as “they come in the way of security and safety of women.”

Retaliating to the recommendations of the NCW, the Catholic Church has described as "absurd" the call to ban confession and believes that any such step will be "a direct infringement on our freedom of religion guaranteed by the Indian Constitution."

According to Deputy Secretary-General Varghese Vallikkatt of the Kerala Catholic Bishops Council (KCBC): "Instead of reporting the findings of the commission, the chairperson has ventured into something which is totally out of her prerogative, and without any consultation with the Christian churches and communities, and without considering the moral, theological or psychological aspects of the centuries old spiritual practice of confession among the Christians. The chairperson has crossed the boundaries of her constitutional powers. It is an attack on the Christian faith and spiritual practice…Confession, according to the Christian faith, is a sacrament. It is a way to spiritual progress and salvation. It is a practice inherited from the early Christian communities. The sanctity of the seal of confession was held so high in the history of the Church that there are instances of priests having sacrificed their lives to protect it."

Confessions are a common practice among the Catholic Community around the world. In Catholic teaching, the Sacrament of Penance and Reconciliation (commonly called Penance, Reconciliation , or Confession) is how the Church mediates to get individuals absolved by God for the sins they have committed after baptism by confessing them to a priest. The Catholic rite, obligatory at least once a year for serious sin, is usually conducted within a confessional box, booth or reconciliation room. Confessing before God about their wrongdoings allows purported “sinners” belonging to all ages and backgrounds to get rid of the guilt rather than carry the weight on their shoulders.

Some feminists have suggested that same-gender confessions and efficacious implementation of law and order could act as mitigating measures to safeguard the interest of women during penitence.

Confessions are also common in popular cinema. It is difficult to forget in many films the slow, soft and surreal walk towards the confessional chamber in a poorly lit church, where the cranking of the wooden flooring is in tandem with the profusely slow heartbeat of the “sinner” culminates in a silent conversational confession through the means of an opaque and visibly protected screen. It is difficult, for instance, to forget the famous scene from The Godfather Part III (1990) where a cardinal persuades Don Michael Corleone (Al Pacino) to participate in his first confession, as the Don struggles to deal with his inner guilt and moral haphazardness after getting Fredo murdered.

Similarly, in the famous Bollywood blockbuster - Amar Akbar Anthony – the legendry Indian actor Amitabh Bachchan playing the role of Anthony, fearing arrest and detention, instead of approaching the police confesses to a priest the murder he has committed. When the priest threatens to inform the local police, Anthony reminds him about his regular donations to the Church.

Interestingly, the Bible famously stipulates that “Death and life are in the power of the tongue: and they that love it shall eat the fruit thereof” (Proverbs 18:21). The importance of secrecy and maintaining confidentiality is the very basis and foundation of the practice of confessions. In fact, without the assurance of secrecy, the entire basis of penitence and repentance before a priest loses its meaning.

The question, however, to ask even before discussing the abolition of confessions is whether priests are obligated to report and disclose facts pertaining to committing a serious criminal offence, as and when such acts are brought to their notice.

However, beyond understanding the conception and manner in which confessions are made, it is important to analyse and question the practice of non-disclosure or secrecy maintained by the priests as it involves certain moral, legal and philosophical issues. Are priests, upon hearing about the commission of a serious offence like murder or child sexual abuse, under any obligation to make an immediate disclosure in order to uphold the rule of law? Is this obligation a moral and judicial one?

Or is there sufficient legislation around the world to enforce disclosure for the purposes of fair investigation and effective prosecution and also the prevention of crime? The flipside could, of course, be that nobody would actually confess to a priest, knowing the priest is under an obligation to inform the police immediately.

Equally important is to recognize that it is the bounden duty of all citizens, where-so-ever placed, to prevent crimes and uphold the rule of law. Disclosure obligations by priests hearing confessions are amplified when it comes to reporting of serious crimes like murder, child sexual abuse and rape. Such situations are particularly exceptional because, especially involving minors. It is particularly difficult to gather information on a subject such as sexual abuse that embraces intimate family relationships, involves societal taboos, and may be illegal.

The difficulties are even greater when it comes to children, who lack the capacity to report or recall an incident of abuse, or fear the potential consequences and stigma. Problems of under-reporting are compounded by weaknesses in formal systems for information gathering. The gravity and nature of the offence of rape is perhaps universally considered to be of the most heinous character.

John Gardener’s jurisprudential marvel “Wrongness of Rape” (2007) succinctly stated “That rape is wrong, and seriously wrong at that, can scarcely be doubted. Arguably, rape is among those wrongs which are never excusable. Probably, it is among those wrongs which are never justifiable. Certainly, it is among those wrongs which ought to be forbidden and punished by the criminal law.” Therefore, limiting our scope to cases involving sexual assault, it is essential for us to question to strength of the privilege of communication afforded to priests and those confessing.

In the United States, there is considerable respect for non-disclosure. In 1980, Chief Justice Warren Burger laid down that the priest-penitent privilege recognizes the human need to disclose to a spiritual counsellor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. Presently, most States have rejected the absolute privilege granted and directed for mandatory reporting in cases of suspected child abuse or neglect.

Recently, Australia passed a law stipulating that any priest who fails to report confessions pertaining to paedophilia can be lawfully prosecuted and even subjected to fine. In 1991, the Supreme Court of Canada ruled that a confession of murder made to a pastor could be read as evidence to convict the accused, and that the existence of privilege would depend upon the facts and circumstances of the case, rather than the nature of the relationship between the parties involved.

With an estimated population of nearly 20 million, the Catholic community in India enjoys constitutional equality, cultural acceptance and financial inclusion in the vibrant democratic and secular framework of India. In terms of privileged communications, the Indian evidentiary laws uphold the privilege granted to communications involving lawyers and spouses. However, this privilege can be breached in order to prevent the commission of a subsequent offence.

There are certain inherent provisions under Indian law which mandate the direct reporting of certain offences. It is pertinent to mention that priests do not enjoy any express privilege under Indian parliamentary legislation. Therefore, it would be worthwhile to juxtapose the Indian laws regarding disclosure of information, in the backdrop of confessions made to priests.

According to Section 39 of the Code of Criminal Procedure 1973, a law which universally applies to all, irrespective of religion, every person aware of the commission or the intention of any other person to certain offences shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.

While the provision enlists a host of serious offences including murder, sedition, currency counterfeiting, etc., sexual assault has been inexplicably omitted. However, this procedural provision must be read along with the corresponding substantive provisions envisages under the Indian Penal Code, 1860. Section 176 states that whoever being legally bound to further any furnish information on any subject to any public servant, as such, intentionally omits to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment up to a month or with a fine or both. However, if the information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, then the punishment is enhanced for a simple imprisonment term which may extend to six months or with a fine or both.

Furthermore, in order to appreciate the complexities of sexual offences against children, in 2012, the Indian legislature was pleased to introduce the Protection of Children from Sexual Offences Act, which contains Section 19 that expressly directs the reporting of offences, notwithstanding anything contained in the Code of Criminal Procedure, 1973. Any person who has apprehension that an offence is likely to be committed or has knowledge that such an offence has been committed shall provide such information to the concerned authorities, failing which there shall follow prosecution and punishment.

A closer examination of the criminal provisions pertaining to crimes involving sexual assault, particularly against minors, reveals a strict and stringent disclosure mandate. In fact, rather than being in contempt of court or suffering a fine, there is prosecution followed by imprisonment for such intentional omissions. Moreover, there is neither any protection nor even recognition of priests hearing confessions under the regime of evidence law. Thus, no priest who is summoned by a competent authority during a criminal investigation or trial has the right to withhold material information only on the ground that it obtained during a confessional proceeding. A testimony of a priest regarding a confidential conversation may be deemed as an extra-judicial confession or hit by the rule of hearsay evidence, which of course shall be completely depended upon the facts and circumstances of the deposition.

From an analysis of the concept of the seal of confession both from a social and jurisprudential perspective, it is clear that non-disclosure of serious crimes like sexual offences against children is legally unacceptable. While religious freedom is a universally declared and accepted fundamental human right, upholding the rule of law as well as maintaining law and order, are equally important. Furthermore, the wrongness of rape, particularly against minors, shocks the universal moral and social conscience of any society. Therefore, as an argumentative proposition, the prevention of sexual crimes against minors should be given priority over any other consideration.

Under Indian law, priests are legally bound and mandated to report information pertaining to the commission of serious offences, particularly against minors. Therefore, abolishing, modifying or discouraging the practice of confessions is irrelevant in light of the stringent legal obligations on priests to disclose information about the commission of serious offences. Any call for banning priest confessions in India is a political red-herring or a knee-jerk emotive reaction. Instead, the need of the hour is to implement and enforce the existing legal framework, which has neither been challenged by any community nor questioned thus far by anyone.

Be that as it may, the larger question to ask is whether rape can be prevented if confessions are banned through legislative intervention, especially in a country where violation of law is done with impunity. That child marriage continues despite being illegal as does the giving and receiving of dowry reveal the stranglehold of archaic customs and patriarchal values diminish the position of women in Indian society.

The sexual abuse of girls and women by priests belonging to any religion it is more than just about ignorance or presence of law. What is missing is a social and political commitment to ending the protection to perpetrators under the cover of religion of the most heinous crime on earth – the rape of women.

(Ishan Shivakumar is a Delhi based advocate practising criminal law)

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