The National Catholic Review
Defending the seal of confession from legal challenge

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.

Religious Liberty

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.

Helen Costigane, S.H.C.J., teaches canon law and Christian ethics at Heythrop College, University of London.

Comments

Jim Lein | 8/14/2013 - 1:54pm

What about kneeling behind the veil or shield? Then the priest doesn't have to worry; he can't positively identify the person.

ANDY GALLIGAN | 8/8/2013 - 11:17pm

I have been told on several occasions throughout my lifetime that there is no record of any priest ever having violated the seal of confession, that is to say, priests may have told some sins they have heard in confession, but never in such a way that a given penitent could ever be be identified as the one who committed and confessed that sin.
Is what I have been told true? Has there ever been a known case of the breaking of the seal? Does anyone know?

Bruce Snowden | 8/4/2013 - 10:05pm

Hi Ed, Maybe it's all a "tempest in a teapot" as you suggest, to which I add, on the "Tea of Galilee?" Oh my, "Bless me Father for I have sinned" .... just can't resit a pun! I hope you're right, but I do have a sense of uneasiness about it, which if it does happen, at 82 more than likely I won't be around, but our kids and grandkids may be faced with it. Blessed Mother pray for the good ole U.S.A.!

ed gleason | 8/4/2013 - 8:05pm

With 100s of thousands of childen abused there must be a least thousands of confessions. No reports yet of priests being forced to disclose.. tempest in a teapot?

John Placette | 8/9/2013 - 2:18pm

Where are you getting your statistics? The statistics I have read state that there have been 16,795 victims from 1950-2012 in the United States (BishopAccountability.org).

1 victim is too many, but "100s of thousands of children"? Check your numbers and read the demographics. I suggest one read the entire report:

The Causes and Context
of Sexual Abuse of Minors by
Catholic Priests in the
United States, 1950-2010
A Report Presented to the United States Conference of Catholic Bishops
by the John Jay College Research Team

Let's be accurate here!

ed gleason | 8/13/2013 - 12:50pm

John P.. your 'lets be accurate' plea seems to imply only priest abusers are worthy of confession. What of the 100s of thousands of child abuse by the many others.. .. And I thought that child abuse by the many others i.e. laity, was the basic argument by the deniers of clerical abuse.!!!!.. You also seem to be saying only abusing priests go to confession. Where are you getting your statistics? .. .

John Placette | 8/16/2013 - 10:30am

Mr. Gleason,
You're right, I misinterpreted your post. I'm defensive of the Church and want to defend the good clergy. This time I overstepped. I apologize.
God bless.

Bruce Snowden | 8/5/2013 - 6:17am

Hi James, About priests not recognizing the identity of penitents in the Confessional at least once in a while, brings to mind the following true, funny, Confession story, which obviously does not violate the Seal. Years ago a young friend of mine having recently left Religious Life as a Sister, went to Confession to a priest who knew her. She told me her "sin" was very similar to what she had been confessing as a Sister and so told the priest that she had been "unfaithful to Grace." My friend told me the priest then said to her, "Who's Grace?" Subsequently it was all clear up that she meant God's Grace! She later told me she was sure the priest recognized her voice and was just joking with her! So, I guess it can happen that a penitent can be identified. Thus, I do worry that considering the low tenor of respect for religious liberty that's developing in our Country, priests might begin thinking of jailtime for honoring the Confessional Seal. I hope my fear will never materialize..

James O'Connell | 8/3/2013 - 10:18am

The idea of civil law intruding into the confessional is troubling, to be sure. But seen simply from a practical, rubber-meets-the-road angle, is this really an issue?

I've never known a confessor to be able to positively identify any penitent through the confessional screen.

Melody Evans | 8/2/2013 - 9:56pm

What Cardinal George Pell said was a little alarming to me as well. I guess it never occurred to me that I could be turned away from the opportunity to confess. I think if I was given the choice I would rather have my confession leaked than not be given the opportunity to confess at all.

John Placette | 8/2/2013 - 4:14pm

I am a Permanent Deacon in the Archdiocese of Galveston/Houston. I have been involved in correctional ministry for several years.

In Texas, there is no clergy exemption to the child abuse reporting statute.

An old 1985 Attorney General's Opinion even states:
, Article 3715a, V.T.C.S., which provides for clergyman-penitent privilege in judicial proceedings, does not conflict with section 34.07 of the Family Code, a reporting statute. Section 34.07 does not violate the Free Exercise Clause of the First Amendment to the United States Constitution. It requires a minister of an established church to report evidence of child abuse when confidentially disclosed to him by a parishioner.

*The statutes have since been revised, but the legal premise remains.

The current statute does specify a means to report in confidence.

If ever a conflict, clergy must decide...

May God bless us and guide us, especially our priests!

David Pasinski | 8/10/2013 - 10:04am

Thank you, John. Could you comment on these scenarios..
1. A priest confesses anonymously that he has abused an unnamed child and is penitent. The confessor knows the voice without doubt. Does the confessor havea a responsibility to tell someone?
2. A child confesses that she has been exploited by "Father X." Does the Confessor tell someone?
3. A parent discusses his concern in anonymous confession that he believes that "Father Y" has molested his child and he is embarrrassed to go to hhis diocesan representative becaseu of his status and long family friendship with the priest. Does the priest offer to go with him or anything else?

John Placette | 8/12/2013 - 9:54am

I can only give my opinions. Each of the scenarios has several possibilities. But, here goes:
1. The confessor priest could withhold absolution pending further dialogue and action by the suspect priest. He could go with the priest to the the Diocesan or religious supervisor and the civil authorities to make known the offense. He could support the priest pastorally as the suspect priest took responsibility for his actions. He must seek all avenues to get help for the victim.

2. The child is the victim. The sinful actions of the suspect priest are not subject to the confidentiality of the confessional in this case. All reporting should be made.

3. The priest should go with him to the diocesan representative and support him and his child through the process which would include reporting to the civil authorities.

Tough, tough cases.

Thomas Rooney OFS | 8/15/2013 - 10:20am

What a thought provoking and yes, tough thread.

1. I agree with your take on the abuser coming to the confession; the priest could make turning himself in an aspect of the abuser's penance, and offer to accompany him pastorally. Refusal to do so would (and to my mind should) result in the priest withholding absolution. Here's a question...IS there a "seal of confession" if absolution is refused? The priest's subsequent actions would depend on that, methinks.

2 and 3. I also agree; while the priest was approached in the confessional the child and parents are not confessing sins, and the priest would be bound to take concrete action.

David Pasinski | 8/12/2013 - 4:10pm

Thanks for your opinions, John.

I would love to hear a conon lawyer and psychologist weigh in on these as well.

I am assuming that in #1 that the priest wants absolution or nothing and would leave the confessional unabsolved.Therefore, he would not cooperate with any disclosure. I am not sure what your advice to the confessor would be at that poiint.
#2-- I personally concur with you that this is the "moral" action, but I doubt that it is canonically approved-- hope I'm wrong.
#3--Again, while my framing was not clear, I am supposing that the fatehr will not go to authorities for whatever reasons... Remember "Doubt" dialogue with mother -- that was striking...

At any rate, thanks for weighing in

David Pasinski | 8/14/2013 - 11:48pm

Perhaps these are not intersting or well formed enough for other comments ... or this thread has run its course... or they are too controversial to comment upon, but I am truly seeking an informed canon lawyer's amd perhaps a diocesan official or psychologist to weigh in in these, but I know that I have no right to expect that ... just a hope.

David Pasinski | 8/15/2013 - 4:56pm

I apppreciate Thomas Rooney's comments, but continue to wonder if in #2- although the child is not "confessing" but ratehr just reporting" -- on what "Father did," etc, is that confessor able to comuictte that information to responsible authorities? Is he likewise bound to do so?

re #1, if the "penitent" is unwilling to do as asked, what is confessor's reposnisbilites?

Recently by Helen Costigane

Scotland, Braving It Alone? (September 16, 2014)