Matt C. Abbott
July 10, 2014
The state and the seal of confession
By Matt C. Abbott

From The Times-Picayune (July 7):
    The Catholic Diocese of Baton Rouge has issued a statement decrying a decision by the Louisiana Supreme Court that could compel a local priest to testify in court about confessions he might have received....

    The statement refers to a lawsuit naming the Rev. Jeff Bayhi and the Catholic Diocese of Baton Rouge as defendants and compels Bayhi to testify whether or not there were confessions 'and, if so, what the contents of any such confessions were'....

    The case stems from a claim by parents of a minor that their daughter confessed to Bayhi during the sacrament of reconciliation that she engaged in inappropriate sexual behavior with a grown man who also attended their church. Court documents indicate the child was 12 years old at the time of the alleged sexual abuse....
Click here to read the TP article in its entirety.

Click here to read the statement issued by the diocese.

In light of the aforementioned news story, I'm publishing a pertinent essay (edited with approval) by Father Joseph Lee, the academic dean of Our Lady of Guadalupe Seminary in Denton, Neb., a canon lawyer, and a member of the Priestly Fraternity of Saint Peter.



Essay by Father Joseph Lee, FSSP, JCL

The Roman Catholic Church has been famous for protecting the inviolability of sacramental confession. However, is it not the right of the state to access any useful knowledge in the court of justice? Moreover, the 1983 Code of Canon Law itself says that "[W]hen the law of the Church remits some issue to the civil law, the latter is to be observed with the same effects in canon law."

I would like to briefly compare the privilege of the seal of confession as stated in canon law with the rights of common law courts. First, I will consider the nature of the seal of sacramental confession and how it officially operates. Secondly, I will explain how common law countries view privileged communications. Thirdly, I present the nature of the standard and classic Wigmore Test in determining whether a conversation is privileged. Then, I will give an actual application of the criteria of the Wigmore Test in a case study. Thus, I hope to show that matters submitted under the seal of confession should enjoy benefits of privileged communications in common law countries.

In describing the nature of confession, the Code of Canon Law says:
    [I]n the sacrament of penance the faithful who confess their sins to a lawful minister, are sorry for those sins and have a purpose of amendment, receive from God, through the absolution given by that minister, forgiveness of sins they have committed after baptism, and at the same time they are reconciled with the Church, which by sinning they wounded....individual and integral confession and absolution constitute the sole ordinary means by which a member of the faithful who is conscious of grave sin is reconciled with God and with the Church.
Having determined what sacramental confession is, we move on to the nature of the seal of confession. The Code says:
    Can. 983 §1 The sacramental seal is inviolable. Accordingly, it is absolutely wrong for a confessor in any way to betray the penitent, for any reason whatsoever, whether by word or in any other fashion.

    §2 An interpreter, if there is one, is also obliged to observe this secret, as are all others who in any way whatever have come to a knowledge of sins from a confession.

    Can. 984 §1 The confessor is wholly forbidden to use knowledge acquired in confession to the detriment of the penitent, even when all danger of disclosure is excluded.

    §2 A person who is in authority may not in any way, for the purpose of external governance, use knowledge about sins which has at any time come to him from the hearing of confession.
The object of the seal of confession is the strict obligation to maintain silence regarding the confession of sins submitted to him for absolution. Although the penitent may release them from their silence, the confessor and anybody else that may come upon knowledge of another's sacramental confession are canonically bound by this seal.

In order to stress the importance of keeping the confessional seal, the Roman Catholic Church has laid down severe a canonical penalty. "A confessor who directly violates the sacramental seal, incurs a latae sententiae excommunication reserved to the Apostolic See; he who does so only indirectly is to be punished according to the gravity of the offence." The direct violation would be one by which somebody explicitly joins the crime with the penitent's name. An indirect violation gives information by which somebody could join the crime with the penitent's. Thus, conversations protected under the seal of confession are expected to be kept completely confidential by the priest.

According to Black's Law Dictionary, a privilege is "a special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty. A privilege grants somebody the legal freedom to do or not do a given act. It immunizes conduct that, under ordinary circumstances, would subject the act to liability."

A privileged communication would be one which would enjoy the special right of being excluded in a court of law. Privileged communications takes various forms. The attorney-client privilege is very well known. There is also the priest-penitent privilege which bars "a clergy member from testifying about a confessor's communications." Knowing this, how can we determine which conversations qualify as privileged communications and which do not? Let us now examine the Wigmore Test.

John Henry Wigmore was an American jurist and expert who developed a set of guidelines to determine whether certain communications were to be held as privileged. These guidelines are known today as the Wigmore Test:
    (1) The communications must originate in a confidence that they will not be disclosed;

    (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

    (3) The relation must be one which in the opinion of the community ought to be sedulously fostered; and

    (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
Using the Canadian Supreme Court decision in 1991 of R. v. Gruenke [a Canadian murder case], we can see the criteria of the Wigmore Test applied to interpret the nature of religious conversations. The first rule of the Wigmore Test stresses the need for confidentiality. Without this foundation of trust, the other criteria of the Wigmore Test are extraneous.

In R. v. Gruenke, Judge Lamer mentions that the first criteria of confidence "is utilitarian. Religious confidentiality is vitally important not only to the maintenance of religious organizations but also to their individual members. Without it, individuals would be disinclined to confide in their religious leaders. Its value is the value to society of religion and religious organizations generally....without this expectation of confidentiality, the raison d'ętre of the privilege is missing."

In light of the second criteria of the Wigmore Test stressing the necessity of confidentiality to maintain the full relationship between the two conversing parties, Lamer says that "confidentiality in the relationship between the religious leader and an individual allows full and frank discussions of matters which are troubling to the individual, allowing the individual to draw psychological and spiritual sustenance from the relationship... Confidentiality, however, is necessary to allow the cleric to give spiritual guidance to the individual."

The other criteria in the Wigmore Test build upon this basic aspect of confidentiality. Flowing from this is the need of a course of discipline to safeguard this conversation between the needy individual and the official religious leader.

By the third criteria of the Wigmore Test, the community must be of the opinion that this kind of relationship should be fostered. Again, Lamer mentions that from this type of privileged communications between religious leader and individual "the spiritual benefit to the individual contributes to the over-all health of society...In those circumstances, public policy would be promoted albeit at the cost of the search for truth in the particular litigation.

"A religious communications privilege may also be supported by the constitutional protection of freedom of religion. The inclusion of the guarantee of freedom of religion in s.2(a) of the Charter indicates that a legal privilege for confidential religious communications is commensurate with Canadian values."

Lamer remarks that "[I]f society truly wishes to encourage the creation and development of spiritual relationships, individuals must have a certain amount of confidence that their religious confessions, given in confidence and for spiritual relief, will not be disclosed."

Commenting on the final criteria of the Wigmore Test, in which the harm done to the relation, due to the disclosure of information, must be greater than the benefit gained from obtaining this information, Lamer notes that in these conversations between religious leader and individual "compelling disclosure or charging the cleric with contempt places the presiding judge in the position of having either to force the breach of confidence or to imprison the cleric, both of which may arguably bring disrepute to the system of justice."

Having seen a case study involving the Wigmore test, it is not difficult to determine whether matters submitted under the seal of confession should be treated as a privileged communication.

First, it is clear that confidentiality is to be guarded in sacramental confession regarding sins submitted for absolution. This is obvious from the immemorial tradition of the Roman Catholic Church, the current common practice and the canonical penalty of automatic excommunication associated with disclosing this information.

Secondly, within sacramental confession, this confidentiality is assumed in the full maintenance and identity of the parties. A Catholic will approach a validly ordained Catholic priest knowing that is by his professional character as priest that sins will be forgiven. The maintenance of the relation is further secured by the using the official ritual practice of confession.

Thirdly, although perhaps not Catholic itself, the state can easily see that sacramental confession is a boon insofar as it cultivates virtues that are useful to the state. Vices and virtues are esteemed by both church and state, and both parties can harmoniously work together regarding this.

Finally, as mentioned in R v. Gruenke, forcing the priest to attempt to break the seal of confession would simply embarrass the state. Further, the state would not exactly be promoting spiritually values by attempting to obtain confessions of sins which they are not likely to obtain in any case.

After comparing common law with canon law, it is evident that matters submitted under the seal of sacramental confession are to be treated as privileged communications. Although R v. Gruenke was a Canadian case, both United States and Canada share the same legal principles of common law. Using the classic Wigmore Test as a standard, it is manifest that sacramental confession fulfills the criteria of confidential privileged communication. Continuing to foster an environment for the Church to practice this well-known spiritual practice will continue to bear much fruit for the well-being of the common law state.

© Matt C. Abbott

 

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Matt C. Abbott

Matt C. Abbott is a Catholic commentator with a Bachelor of Arts degree in communication, media and theatre from Northeastern Illinois University. He's been interviewed on MSNBC, NPR, WLS-TV (ABC) in Chicago, WMTV (NBC) in Madison, Wis., and has been quoted in The New York Times and the Chicago Tribune. He can be reached at mattcabbott@gmail.com.


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