Religion Inside the Courtroom: Should Oaths Be Scrapped?

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The South Australian Law Reform Institute has recommended that the choice to take a religious oath when giving evidence should be scrapped in favour of a universal, non-religious promise to tell the truth in court, known as an ‘affirmation’.

The Institute made several recommendations in its final report delivered just this week, which was a response to the SA Attorney-General’s review into whether the process of administering oaths and affirmations should be simplified.

The review followed a recommendation by former Judge Peggy Hora for a separate and simpler witness oath for Aboriginal witnesses. Rather than adopt an oath specifically for Aboriginal people, the Attorney-General’s review sought to uncover

“whether the current wording of the oath could be simplified and modernised and whether a more appropriate oath could be adopted, and then incorporated into legislation.”

The report acknowledges that there are some members of the public who question the importance and necessity of such review. However, in making its recommendations for change, the Institute concluded that the majority of submissions from the public, including members of the judiciary and judicial bodies, consider the current process of offering the witness a choice of religious oath or secular affirmation is too complex.

The Importance of Oaths and Affirmations

The rules of evidence in Australian courts are central to our system of procedural justice.

During a trial for example, rules of evidence regulate the information put before the juries and how courts make decisions based on that evidence. Without relevant material before the court, verdicts can be based upon immaterial or unfairly prejudicial information.

This is why oaths and affirmations – which are promises to tell the truth – are integral to the effective administration of justice, and there are harsh penalties for those who lie under oath.

At common law, the crime of perjury involves wilfully making a false statement to a court while under oath. There are also statutory offences whereby witnesses can be charged for making false statements in an affidavit or statutory declaration.

An Issues Paper that formed the Institute’s final report set out four main reasons that have historically justified making a formal commitment by oath. They are:

  • To secure the truth;
  • To preserve and underscore the proper performance of public duties;
  • To preserve honour (in countries where morality is defined in terms of honour
    and shame rather than right and wrong); and
  • To underpin legal sanctions against lying in court.

Public Opinion

The Institute received arguments from the community both for and against the current practice of allowing a witness to choose between a religious oath or a non-religious affirmation.

On the understanding that truthful evidence is at the heart of fair and just administration of the law, it is interesting to look at some of the arguments for and against religious oaths.

In Favour of the Oath

Here are some of the most common reasons put forth for retaining the religious oath:

  • The system works so there is no need to change it.
  • Choice promotes truth telling by creating a sense of personal responsibility.
  • Choice reflects the cultural acceptance and religious freedom characteristic of our multicultural nation.
  • An oath, for those who are religious, emphasises the seriousness with which they are undertaking to tell the truth.
  • Courts should respect the personal, cultural, religious or traditional choice of witnesses.
  • Religious people should have the opportunity to bind their conscience by swearing to their deity, consistent with their right to practice their religion.

In Favour of a Universal Affirmation

Here are some of the reasons for doing away with the religious oath in favour of a general affirmation:

  • The majority of witnesses either through ignorance of religion, or through poor translation, or both, do not understand the significance or concept of an oath, which renders the practice meaningless.
  • Children are able to give sworn evidence, but often do not understand the concept.
  • Making a choice, particularly in open court, can make the witness even more uncomfortable in an environment that is already difficult and unfamiliar.
  • The obligation to tell the truth can be explained and acknowledged simply.
  • References to religion confuse the central focus of the ritual, which is an understanding of and need for a promise to tell the truth.
  • There is no evidence that the oath encourages truth telling.
  • Swearing an oath does not necessarily mean telling the truth.
  • In a post-Christian era, the oath is becoming less significant to the community.
  • Religious affiliation does not necessarily represent religious commitment.
  • A witness’s choice could cause jury members to think favourably or unfavourably about their evidence.
  • There should be no reference to a witness’s preferred deity.
  • The tendering of an oath can cause embarrassment or even offence, often based on an assumption arising from the person’s name or appearance.
  • The giving of evidence in court is not a religious event but a secular process.
  • A single secular affirmation is desirable to standardise moral intention and to ensure that all witnesses are held to be equal in affirmation of their testimony, with criminal sanction being the main motivation for honesty.

Only time will tell whether the Insitute’s recommendations to scrap the oath will be adopted.

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