Professional ethics vs legal interest in rape cases

By R. Diah Imaningrum

MALANG, East Java (JP): Former minister of religious affairs A. Mukti Ali once said that there might be only two groups of professionals who could be trusted because people shared their problems with them -- priests and doctors.

The recent mass rape cases have involved religious leaders because people, victims, culprits and witnesses alike, have spoken out to them in the knowledge that their testimonies would not be retold. In his capacity as a priest, Father Sandyawan, for example, has heard confessions from victims as well as rapists. And so has Bingky Irawan, a Confucian leader.

The nature of the relationship between a religious leader and his "clients", like that between a doctor and his patients or an advocate and his clients, is confidential. He has to abide by religious codes, as well as laws, to keep all information received a secret, as a consequence of his professional vows.

Everyone has the right to privacy and this is a very important right in a confidential relationship. If a religious leader or a doctor disclosed information told in confidence then the disclosure would have personal, social and judicial consequences for him or her. The most unwanted consequence is the violation of the mutually confidential client-professional relationship.

So, such people are obligated to keep information secret, while the police, as investigators, have to collect proof -- from witnesses and victims -- when hunting for the perpetrators of the rapes. A conflict of interest is clear.

If adequate proof cannot be found at the investigation level, it will be virtually impossible to uncover the truth behind the mass rapes in order to secure any convictions, particularly as, according to the 1945 Constitution, Indonesia is a rechtstaat where the court is a formal (and hopefully material) tool to search for judicial truth. The problem is whether the obligation not to divulge secrets should be sacrificed for the sake of the judicial process (from the investigation level to the courts)?

There are three systems of professional confidence in law; namely the Blank, the Enunsiative and the Limitative systems. According to the Blank system, it is not explained in detail who is obligated to keep secret all the information they receive from their clients. The Enunsiative system explains the types of professions that have that duty. And the Limitative System explains in detail the people who have that duty. From the standpoint of legal flexibility, the second system is the best.

Article 322 of the Criminal Code (KUHP) determines that people who have a obligation to keep secrets due to their profession can be condemned if they disclose confidences. The code does not specify any professions. But the law on professions describes that people who have such a duty are religious leaders, advocates and doctors.

Is the professional secret absolute or relative? Can it be sacrificed for the sake of public interest, such as judicial interest? Keeping information secret is absolute if the profession obliges the person to do so for his clients -- in every situation, normal or otherwise. The secret has to be kept, although it means that a greater interest may have to be sacrificed.

Once there was a case of the absolute secret of "confession of sins". A person, identified as A, was given the death sentence for allegedly killing another person. But the real killer, identified as X, went to Fritz Graham, a Catholic priest, and confessed that he was the real killer, not A.

X asked the priest: "Will you betray me and report this to the police?"

"Remember that this confession is sacred," Graham answered. "I too know that confessions are sacred but I cannot let my innocent brother be sentenced to death without feeling any guilt."

Then Graham asked his bishop for some advice. The bishop reiterated to the troubled priest that the secrecy of the confessional chamber was absolute. The consequence was that the innocent defendant was executed. X, who escaped punishment, then declared in a public confession that he was the real killer (quoted by Huijser from Masmans' Geheim en lijden of het biechtgeheim bewaard, 1911).

In England, according to the 17th-century Lutheran Church, the secrecy of the religious confession could be disclosed if it would help an innocent person. Whenever it is possible, the disclosure should be made without mentioning the name of the real culprit. The priest can speak as a witness and his testimony would be considered trustworthy.

In Indonesia, there is no precedence concerning the ethics of religious leaders keeping secrets. The recent rape cases that involved religious leaders have not been registered with any court yet because of the difficulties at the investigation level.

For the time being, the government has appointed a fact- finding team to search, find and collect as many facts as possible. But from the judicial standpoint, the need for proof will clearly run into difficulties if religious leaders have to stand as witnesses. Furthermore, Father Sandyawan, as a Catholic priest, should adhere to the principle of absolute professional secrecy (Article 983 of Codex Iuris Canonici).

His position as director of the Volunteers for Humanity cannot be separated from his capacity as a religious leader. He is committed to keeping his clients' secrets. But the secrets are just relative, if the culprit, witness or victim has given him permission to disclose the information.

Indonesians are keen to learn what progress has been made in the investigation to uncover the truth behind "the mass rape cases". Will the findings be legally transparent?

The writer is a lecturer in the Faculty of Law at Widya Karya Catholic University in Malang, East Java.