“A clergyman is not obliged to disclose what has been entrusted to him in his capacity as a pastor.” The German Criminal Code (StGB) in § 139, para. 2 the dutiful secrecy of clergymen in accordance with the secrecy of pastoral care and confession. In addition, § 53, para. 1 of the German Criminal Code (StGB) and Section 383 of the Code of Civil Procedure (ZPO) provide for the right of clergy to refuse to testify.
In light of the allegations of abuse that the Catholic Church is currently dealing with, these regulations must be critically scrutinized. First of all, it is doubtful that the information about the cases of abuse in educational institutions of the Catholic Church, some of which has been available for years, was entrusted to those responsible in their capacity as pastors. Rather, it can be assumed that the information that has been available for years was given to the clergy in their functions as organizational school managers and supervisors. A direct connection to a pastoral situation is difficult to recognize, so that the legal remedies described above (§§ 53, para. 1 & 139, para. 2 StGB as well as § 383 ZPO) hardly seem comprehensible.
In addition, the absolute secrecy of confession (CIC 983 § 1) enshrined in canon law contradicts the nationwide efforts to strengthen the protection of children and young people in the view of the Humanist Association of Germany (HVD). The current actions of the Catholic Church in view of the numerous incidents of abuse confirm this impression.
The Church seems to continue to subordinate the welfare of every child and young person to its self-imposed duty of secrecy. Instead of carrying out a rapid and comprehensive investigation in the interests of the victims and dealing with the incidents in a self-critical manner, the Catholic Church is retreating to its centuries-old confessional secrecy and the non-transparent sanction mechanisms within the Church.
The secrecy of the confessional, the authoritarian structures within the church and celibacy in conjunction with the outdated sexual morals of the churches form a breeding ground that favors the abuse of children and young people by individual church representatives. However, the Catholic Church does not want to deal with these connections, instead dismissing them out of hand as anti-clerical talk. Furthermore, it places its outmoded principles of order within the church above the dignity of its victims.
A change of values within the institution in favour of preventing such offences, which places human dignity and in particular the welfare of the child above the organizational principles of the church, is long overdue. The churches must finally assume their responsibility towards the victims in suspected cases of child endangerment and restrict their self-imposed right to silence in favor of the protection of children and young people. The absolute nature of the duty of confidentiality encourages the current practice of procrastination and cover-ups, thereby endangering the welfare of the child.
In this context, the Catholic Church must also solve the problem of the impending excommunication of those who no longer want to look the other way and turn to extra-church institutions. These people currently have to break the seal of confession in favor of the protection of children and young people. For this, they are threatened with exclusion from their church community.
At the same time, the HVD calls on the Federal Minister of Justice to take the necessary legal steps to subordinate the abstract principles of canon law to the concrete concerns of child and youth protection. Against the backdrop of blatant individual cases of child abuse and neglect, the federal, state and local authorities have stepped up their efforts to protect children and young people in the home environment in recent years.
In its draft for a Child Protection Act (BT-Drucksache 16/12429) last year, the Grand Coalition had drafted nationwide regulations for the disclosure of information by confidential informants in accordance with Section 203 of the German Criminal Code in favor of the child’s welfare. Persons such as doctors, psychologists, lawyers, educational advisors and social workers were released from their duty of confidentiality in the event that a risk to the welfare of a child or young person cannot be averted in any other way. This draft from spring 2009 does not take into account the renewed problem of the massive abuse of children and young people in Catholic institutions, as it does not take into account clergy and their confessional secrecy. The discovery of more than one hundred individual cases in institutions of the Catholic Jesuit order alone clearly shows the urgent need for action here. A revised draft law must take this into account and therefore also release confidential persons within the meaning of Sections 53 and 139 StGB and Section 383 ZPO from their duty of confidentiality.
A legally binding regulation that replaces harmless sanction mechanisms of the churches with criminal investigations in cases of confirmed or suspected abuse of children and young people by those under their protection is long overdue. The Federal Government is called upon to close the existing legal loopholes and give priority to the best interests of the child.
