Crossing the beautiful Charles Bridge in Prague, one encounters the imposing statue of St. John Nepomucene (c. 1345-93). Confessor to the wife of King Wenceslaus IV, John was reputedly tortured, but it is certain that he was executed by drowning in the Vltava River on March 20, 1393. His crime was his refusal to divulge to the king what the queen had revealed in confession. For this John Nepomucene is considered the first martyr of the seal of confession. He has since been joined by a Spanish priest, Blessed Felipe Ciscar Puig, also considered a martyr of the sacramental seal. He was shot in 1936 for refusing to reveal the confession of a Franciscan priest. Father Puig and his penitent were executed together.
This idea of the sacramental seal has fascinated popular culture. It has been explored in television programs like “Murder, She Wrote” and “Law & Order: Special Victims Unit” and films like “Moonstruck” (1987) and “Priest” (1994). The potential consequences for a priest refusing to break the sacramental seal are also explored in Alfred Hitchcock’s film “I Confess” (1953), in which a priest, Father Logan, hears the confession of his part-time gardener who, in the course of robbing one of his employers, has killed him. Because of the binding nature of the seal of confession, the priest cannot tell the police anything he now knows about this crime. As the story unfolds, the priest himself becomes the prime suspect in the murder and comes very close to being found guilty and executed for a crime he did not commit.
Challenges surrounding the seal of confession are not confined to history and film, however. A new threat to the seal of confession has emerged recently, with proposed legislation from the governments of Ireland and Australia. The Irish bill would make it a criminal offense to fail to disclose information to police that would help prosecute people who have committed serious crimes against children or vulnerable adults. The Irish minister of justice also proposed a five-year prison sentence for priests who fail to report any sexual abuse of minors they hear about in the confessional.
Similar measures have been considered in Australia, where a national inquiry has been launched into allegations of sexual abuse of children in state and religious institutions and nongovernmental organizations. Julia Gillard, then prime minister of Australia, said in 2012 that the inquiry should examine the seal of confession because it is a “sin of omission” when the seal is invoked in cases of child abuse. Nick Xenophon, a member of Parliament, said the government’s recognition of the seal is a “medieval law that needs to change” and that canon law “should not be above the law of the land.” Others agree that priests have a duty to report cases of abuse, even if that means breaking the confessional seal—and it is not only politicians who hold this view. Geoffrey Robinson, the retired auxiliary bishop of Sydney, has said he would be prepared to break the seal for the sake of the greatest good, the protection of innocent people. As one might expect, Bishop Robinson’s views have attracted much criticism from within the church.
Definition in Church Law
What does the church say about the sacramental seal? The 1983 Code of Canon Law states, “The sacramental seal is inviolable; therefore it is absolutely forbidden [nefas] for a confessor to betray in any way a penitent in words or in any manner and for any reason” (Canon 983 §1). The word nefas is a very strong word, rarely used in the code; its meaning, “absolutely forbidden,” begins to capture the gravity of the offense. But the penalty for the transgression indicates the true magnitude of the offense. Canon 1388 §1 states that the penalty for a direct violation is an automatic (latae sententiae) excommunication reserved to the Apostolic See. That means that recourse must be made to the Sacred Penitentiary in Rome for the lifting of the censure. To incur this penalty, there must be three elements: 1) revelation to a third party 2) of matter learned in confession, 3) with the penitent being identifiable.
Canon 983 reiterates centuries of tradition with regard to the sacramental seal. Early ninth-century church councils warned confessors not to reveal sins confessed to them, and Gratian’s “Concordance of Discordant Canons,” compiled in the 12th century, declared that any priest making known the sins of a penitent should be deprived of office. The Fourth Lateran Council, binding on the whole church, warned in 1215 that priests must not betray a penitent in any way and said that anyone revealing a sin disclosed in confession was to be deprived of office and confined to a monastery to do perpetual penance. This was not accepted without question. There were theologians who supported the idea that the seal could be broken in cases where there might be damage to another person or to the common good. They reasoned that a penitent likely to offend again did not have the requisite repentance or purpose of amendment, and because this was incompatible with true sacramental confession, there would be no obligation on the confessor to maintain secrecy. There were also debates about how knowledge obtained through the confessional might be used and whether a penitent could release a priest from the seal.
A decree of the Holy Office on Nov. 18, 1682, set the scene for the present-day understanding when it prohibited “all use of confessional matter to the detriment of the penitent, even where no danger of revelation existed, and even where the information was used solely to prevent a greater harm from coming to the penitent himself.” Accordingly, the seal may not be broken directly or even indirectly, by revealing information that might link a penitent to his or her sin.
Character of the Sacrament
We get an understanding of why the sacramental seal is considered to be so important when we consider Pope John Paul II’s “Reconciliation and Penance” (1984). In this apostolic exhortation, the pope referred to the meeting between a priest, who is both judge and healer, and a penitent as a “tribunal of mercy rather than of strict and rigorous justice.” John Paul was clear that the role of judgment is secondary. As the church “reflects on the function of this sacrament,” he wrote, its “consciousness discerns in it, over and above the character of judgment...a healing of a medicinal character.” John Paul described the role of the priest as manifold, making present in the sacrament Christ, who is brother, high priest, shepherd, physician, master and judge. The priest himself learns the weakness of the person, assesses the desire for renewal, imparts forgiveness and reinstates the penitent within the ecclesial community.
The priest acts therefore as a representative of the ecclesial community and a witness of God’s mercy. It might be said further that the priest holds up a mirror to the penitent, reflecting back to him aspects of his life about which he may (or may not) be conscious. Referring to the threat of “an eclipse of conscience” in today’s world, John Paul II wrote that the church’s ministry of reconciliation “intervenes to bring the person to the ‘knowledge of self’…to a new interior ordering, to a fresh ecclesial conversion.”
It may be argued that this is one of the main reasons for the confession of sins: the priest enables penitents to reflect on what they do and why they do it. This can help temper what Cardinal Joseph Ratzinger identified in 1996, when he was prefect of the Congregation for the Doctrine of the Faith, as “the theory of the justifying power of the subjective conscience,” which is seen to operate today with little or no reference to objective norms. Further, the process of articulating sins to a person in the role of “judge and healer” might help us “to take personal responsibility for our bad conduct, and not to claim victimhood when it is not justified,” wrote Brendan Kneale, F.S.C., in the periodical Review for Religious (2001). This also helps avoid what Dietrich Bonhoeffer suggested is the self-deception of simply confessing our sins to ourselves and granting ourselves absolution. This “self-forgiveness” (in the wrong sense) can never lead to a break with sin and can result in feebleness in Christian living.
Given all of this, we can understand why the standard of secrecy protecting a confession is recognized in the Catholic Church as higher than that of any other form of professional confidentiality or secrecy. The act of a penitent confessing sins to a priest in the sacrament of reconciliation forms a sacred trust. This is protected by the requirement of the sacramental seal that nothing heard can be disclosed; the penitent may not be betrayed in any way.
Common Law and the Seal
In English law (the system inherited by the Australian legal system), recognition of the sacramental seal has been by way of a privilege that allows for the exclusion of evidence arising from any communication between confessor and penitent. This common law recognition in the period prior to the Reformation has been debated in a few cases since then, where it is clear that opinion was divided among members of the judiciary as to whether confessional communications were protected. In Australia itself there is a two-fold system of statutory law, so that both state and national government can legislate. What is significant here is that the states of Victoria and Tasmania, as well as the Northern Territory, enacted legislation (with some differences) so as to protect a priest from being required to divulge information received in the context of confession.
Sacraments are central to the life and practice of the Catholic Church. It is clear that those who suggest that the confessional seal can be violated in certain instances do not share the church’s understanding of the sacrament of reconciliation. But even as a matter of civil law, it could be argued that any Irish or Australian law that fails to respect confessional secrecy would be unconstitutional. The Irish Constitution pledges to “respect and honor religion” and uphold the “free profession and practice of religion.” The Australian Constitution enshrines the “free exercise of religion.” Any law that requires a violation of the confessional seal can be seen as interference with the exercise of a central belief of the Catholic Church.
There is also a question of whether such legislation, if enacted, would be practicable. There are many reasons to believe that such a law would be of limited value. According to a report in CathNews of New Zealand (Nov. 16, 2012), Cardinal George Pell, archbishop of Sydney, said that priests should refuse to hear the confessions of suspected child abusers in order to ensure that they are not then bound by the confidentiality of the confessional. “If the priest knows beforehand about such a situation, the priest should refuse to hear the confession, that would be my advice. I would never hear the confession of a priest who was suspected of such a thing,” he said, following the announcement of the wide-ranging royal commission in Australia.
Also, if the seal loses protection in civil law, offenders would be less likely to avail themselves of the sacrament. Further, cutting off this avenue of dialogue might make it less likely that an abuser will talk to someone who might be able to persuade him to take the next step.
The “slippery slope” argument, too, is compelling: If priests are required to disclose child abuse, why not disclose other heinous crimes like murder or rape?
Finally, it is likely that the vast majority of priests would simply not comply with such laws; the inviolability of the seal has been affirmed by priests and bishops both in Ireland and Australia.
There is no doubt that worthy motives—the protection of children and vulnerable adults—lie behind these recent developments. At the same time, the current discussion of the issue shows that some politicians do not realize how fundamental the sacramental seal is to Catholic belief and practice. Any proposal that undermines its inviolability may be seen as a challenge to the right of Catholics to freedom of religion, raising significant human rights and constitutional issues. Catholics, like other citizens, should be keen to do whatever it takes to curb abuse and bring perpetrators to justice, but the proposal to oblige priests to break the seal of confession amounts to “rendering to Caesar” what is not rightfully his.
Watch a Skype conversation with Helen Costigane, S.H.C.J.