Ed Peters on attack on the Seal of Confession

The Canonical Defender, Prof. Ed Peters, canonist extraordinaire, has on his blog In The Light Of The Law, …

A note on proposals to require priests to violate the seal of confession

Concerning recent Irish and Australian proposals to require priests who, through their ministry in sacramental confession, learn the identity of child sexual abusers (or of any other malefactors, for that matter), to disclose such information to civil authorities, I have little to say because, well, because there is little to say, canonically, at any rate. Such proposals, even if they become law, will have absolutely no effect on a priest’s obligation to preserve the seal of confession. Absolutely none.

The seal of confession is a not creature of civil law, rather, it rests on divine law and is articulated by canon law (see cc. 983 and 1388). Because the state has no authority over the seal of confession, it can exercise no authority over the seal by way imposing, regulating, or revoking it, in whole or even in part.

What states can do, and indeed what enlightened states in fact do, is to accommodate the seal of confession within theirs laws (typically, in their laws of criminal evidence procedure). The benefits to states making such accommodations are many, and the “benefits” of disregarding the seal can be shown, upon a few moments’ consideration, to be nugatory, but such prudential points are better made by others. I speak only as a canonist, and I write only to say that any civil laws attempting to break the seal of confession would have no force whatsoever against the sanctity of the seal of confession.

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32 Responses to Ed Peters on attack on the Seal of Confession

  1. priests wife says:

    These attacks on the seal of the confessional are very upsetting-

    confession (along with the Eucharist) was what made my family become Catholic when I was 12- mom, dad, 5 kids and now 5 Catholic spouses and 21 (and counting) Catholic grandkids. I remember thinking it was so cool that the priest couldn’t ever say anything about my confession

  2. Will D. says:

    Since Fr. Z forgot, here’s the link to Mr. Peters’ blog.

  3. Augustin57 says:

    We are seeing a heightened attack on the faith and the Church. The whole abuse issue is an attack on the priesthood. Get rid of the priesthood, you get rid of the Eucharist. Get rid of Confession, you get rid of the Eucharist. It’s an all-out frontal attack. We must not ever give up defending Christ and His Body, the Church.

  4. Charles E Flynn says:

    “Nugatory” was word of the day on Monday, November 11, 2002 . [Of course people who have studied Latin can zero in on the meaning of “nugatory” right away! Think, “nugax/ and nugo.]

  5. SK Bill says:

    It may be an all-out attack, but it is also:

    a) political grandstanding, and
    b) unenforceable,

    … and therefore not much of a real threat. Can’t let ourselves get too distracted by individuals whose hatred of the church and whose overwhelming sense of importance cause them to lose sight of the fact that such a law would serve no purpose other than as a human rights violation.

    The real threat is what happened in Russia after the 1917 Revolution and in Mexico in the 1920s. Now, *that* could happen.

  6. Jenice says:

    How could such a law ever be enforced anyway? How could a priest be found guilty of withholding information? Some one would have to overhear the confession of an abuser and then know that the priest didn’t report it. Or, if an abuser claimed that he confessed to a priest who didn’t report his crime, how could it be established who was lying and who was telling the truth? Or if a priest is found to be an abuser, how could it be established which confessor he went to, and how could it be established that he did confess his crime?

    I agree that these “laws” are distressing, but I don’t see how they could be enforced, unless I’m missing something here.

  7. PostCatholic says:

    Because the state has no authority over the seal of confession, it can exercise no authority over the seal by way imposing, regulating, or revoking it, in whole or even in part.

    That’s a very understandable religious point of view, but not a valid civil one. It presupposes that a secular state will accede to the excellency of a particular religious viewpoint. I think to be successful in defending the seal of confession as protected speech in a secular state, you need to articulate reasons which pre-suppose–indulgently–the primacy of the state over various religious forms and practices.

  8. Shadow says:

    @Jenice: This (and others to come possibly) are not about enforceability but about ripping out the priesthood. Precisely as Augustin57 says. In theory, on paper, it will be about law. In practice, it will be to the tune of someone (or other) singing that “I told the priest this” and “the priest did that” (or did not reveal, and so on). With the individuals (jury?, judge?) deciding without fail that the priest is inevitably in the wrong, irrespective of what the true facts may be. This has happened before. It is very rapidly heading toward the point where it is going to happen again, and probably on a global scale this time around.

  9. jilly4ski says:

    Post Catholic, you are right, but the legal implications are also quite scary. Breaking the seal or the privilege (as it is called in the US), is attack on all the privileges. Marital, spousal, lawyer client, etc. If the priest penitent privilege is broken by force then the other ones can be as well. I would guess that lawyers in US would oppose this if the idea ever gets floated here.

  10. cheyan says:

    How could a priest be found guilty of withholding information? Some one would have to overhear the confession of an abuser and then know that the priest didn’t report it. Or, if an abuser claimed that he confessed to a priest who didn’t report his crime, how could it be established who was lying and who was telling the truth?

    Given that one US prison has gotten caught recording confessions (meaning that undoubtedly more have done it and not gotten caught), it wouldn’t take accidental overhearing, or really overhearing in the strict sense at all. Obviously there wouldn’t be a bug in every confessional in the country, but I would expect any confession heard at a jail or prison to be recorded; at that point it’s a simple matter of waiting to see if the priest reported it. (There could also be the expedient of a recording or transmitting device carried secretly by a penitent, either knowingly or unknowingly.)
    Beyond that, yeah, I think it’d be more a matter of someone’s legal confession including the information that he sacramentally confessed such-and-such a thing to Fr. So-and-so, and then Fr. So-and-so getting charged with failure to report; sure, it’d be the penitent’s word against the priest’s, but it’d take a court case to demonstrate who was lying, and with Fr. So-and-so being unable to say “oh, no, all he confessed was renting porn and stealing two boxes of staples from the office,” or for that matter to say “oh, no, if anyone ever confessed child abuse I would be on the phone with the cops fifteen minutes later,” it’d be hard for him to defend himself.

  11. Bryan Boyle says:

    What’s scarier to contemplate (and would be beyond contempt if it happened…) are those priests who are not secure in their faith, and more concerned with pleasing the world than their Creator who would willingly violate the seal.

    Don’t think it won’t happen, and society (or at least the legal system) will hold them up a exemplars of ‘cooperation’.

    It would only take one, in a media center, in a well-publicized case, to do it. And the attack would pick up steam. Never underestimate the wiles of the enemy to seduce someone weak, even one in Orders, into doing his bidding.

  12. Cheyan says: Beyond that, yeah, I think it’d be more a matter of someone’s legal confession including the information that he sacramentally confessed such-and-such a thing to Fr. So-and-so, and then Fr. So-and-so getting charged with failure to report; sure, it’d be the penitent’s word against the priest’s, but it’d take a court case to demonstrate who was lying, and with Fr. So-and-so being unable to say “oh, no, all he confessed was renting porn and stealing two boxes of staples from the office,” or for that matter to say “oh, no, if anyone ever confessed child abuse I would be on the phone with the cops fifteen minutes later,” it’d be hard for him to defend himself.

    It would be the penitent’s word against nothing except the priest’s silence. The priest can neither confirm nor deny what was allegedly told him in confession.

  13. Dr. Eric says:

    Unfortunately, I think Brian Boyle is right. Eventually, if these laws are in place, some priest will crack and Confession as we know it will be less used by the faithful even less than it already isn’t being used.

  14. vox borealis says:

    A state that is hostile enough to the Church to enact such a law will surely be unafraid to run sting operations to catch priests who do not report confessions. That is, the state will send undercover investigators posing as penitents in the confessional, or perhaps the investigator will make appointment with the parish priest (“hello father, I have not been to mass in a long time, but I am deeply troubled…can I talk to you? can you hear my confession?”); the investigator will “confess” to child molestation or the like; then the state will wait a few days to see if Father Entrapped comes forward.

    Welcome to the police state.

  15. wmeyer says:

    If in either or both of these countries, there is a judicial finding in favor of a right of privacy, then there is a rather daunting problem here for the judiciary.

    If a similar legal exercise is tried here, the problem consists in this: On the one hand, the judiciary have found in the Constitution of the United States a “right to privacy” which has not been found by us mere mortals. And on the other hand, the legislature has been trying to do an end run around privacy issues with respect to medical records.

    The real bottom line is the tendency of the state to assume its rights are without limit, despite the existence of a founding document which holds otherwise.

  16. William says:

    Restore confessional booth and sliding grate. No more face to face! Both penitent and confessor claim anonymity.

  17. Young Canadian RC Male says:

    The seal of confession is a not creature of civil law, rather, it rests on divine law and is articulated by canon law (see cc. 983 and 1388). Because the state has no authority over the seal of confession, it can exercise no authority over the seal by way imposing, regulating, or revoking it, in whole or even in part.

    Sure, tell that to the secular governments who seek to violate the Catholic faith and cares for no rights but their own, giving into the whims of every minority to keep their seats of power and greed. They will throw that back in your face and deny there is even a divine law or God.

  18. JohnE says:

    This reminds me of the attack on the Church by the Chinese government. We need to pray for our clergy to be prepared and for the strength to endure whatever may come.

  19. Grateful Catholic says:

    PostCatholic at 2:15 said:
    “That’s a very understandable religious point of view, but not a valid civil one. It presupposes that a secular state will accede to the excellency of a particular religious viewpoint.”

    I disagree. Peters simply points out the nature and limitations of civil authority. Whether or not a state acknowledges a higher authority does not change the reality that one exists–the one, in fact, from which the state derives its own authority. Just because the state may think it has, and even pretend to exercise, authority over the Sacrament does not mean it has or can exercise such authority. Of course, it can wield power, but power does not create or equal authority.

  20. Tom Ryan says:

    Maybe if face-t0-face confession was discouraged, Father could always say “I don’t know”

  21. tioedong says:

    the problem? Some of those confessing will be mentally ill folk confessing imaginary sins, or confessing very old sins, and others will have a false memory or exaggerate what happened.

    One really doubts a sociopath of a child molester will confess the sin, because usually he doesn’t see this as “abnormal”…

  22. kittenchan says:

    Seems like no important in Ireland ever watched Hitchcock’s “I Confess” and actually got the message.

  23. Daniel A. says:

    There has been a court case in Ireland that resulted in the protection of the priest-penitent privilege. Since the law in question doesn’t explicitly mention the Confessional, the only reason it is being related to the Confessional is because various government ministers keep saying that the Seal of the Confessional won’t be an excuse. But their opinion may not be legally acurate. I wonder how a case where a priest was entrapped (because, to be honest, that’s the only way failure to report on a confession would ever be discovered) and cited legal precedent protecting the seal would be decided. I suppose it depends on how anti-Catholic the judge is.

    I get the sense that the people who are pushing this law through are quite unfamiliar with the sacrament of Confession. They seem to think that people are always identifiable and that they confess in extreme detail (a picture of Confession that I often see in the movies and television, wherein Confession is like a counselling session). Even IF the Seal were not unbreakable, it would be a bad idea to break it. A priest could easily get confused between two penitents who confessed one after the other, not be sure that what is being confessed is sexual abuse, or make any number of other errors.

    Because of the poor design of the law, it seems like mere political posturing. It is being portrayed as a “tough on child abuse” law to counter the Church, but in fact, if it were implemented, would be more a case of the State forcing the Church to spy on the people for them. I think the government is playing a game, making a law that is antithetical to the Chruch and forcing the Church to fight the law, thus making the Church look like defenders of pedophiles.

    The message that needs to be sent to the people, in Ireland and elsewhere, is that the law is directed not only against the Church but against the people. It is a law that turns confessors into informants, and the Church into an investigating arm of the State.

  24. cheyan says:

    Miss Anita Moore, O.P. says: It would be the penitent’s word against nothing except the priest’s silence. The priest can neither confirm nor deny what was allegedly told him in confession.

    Exactly. The priest can’t defend himself, either to say “no, what he confessed was x, y, and z”, nor even “no, he certainly didn’t confess anything like that“, so it’s not as simple as Jenice’s question, “how could it be established who was lying and who was telling the truth?” would have it.

  25. Tom says:

    As far as the U.S. is concerned, this would appear to be a violation of the Free Exercise Clause of the First Amendment to the Constitution.

  26. antipodeantony says:

    Anti-clericalism and anti-catholicism, seems to be on the rise amongst the Australian population (not so much the Church itself which is gradually recovering from the modernist decay that has plagued it over the last couple of decades). Talking to an atheist if there’s something wrong in the world be it death, disease or even a rainy day the Catholic Church must have had something to do with it.

    With the rise of the Australian Greens who knows what’s in store for Australia in the future. The devil really seems to be ramping up his attack on the Church of late.

  27. Fr Martin Fox says:

    I could definitely see this playing out with a sting operation; and also coming into play in jails.

    The Church certainly could insist on screens and no more face-to-face, but that doesn’t totally remedy the problem.

    A penitent might well approach the priest outside the confessional, and ask for the sacrament. Then the priest and the penitent enter the confessional. The priest could hardly say he didn’t know the face of the person who came to him.

    In a jail situation, it’s unlikely the penitent would have that option; and how could the priest refuse to hear the confession?

    On the other hand, the priest could say something like: “I cannot assure you of confidentiality because the state may be listening in. I will review the commandments with you and you tell me which you’ve sinned against.”

    The Church can protect the sacrament; but the effect of this would be to demonize the Church: “look to what lengths this so-called Church goes to, to protect child molesters!”

  28. PostCatholic says:

    …giving into the whims of every minority to keep their seats of power and greed…

    Catholics constitute a minority in the United States and Canada and in almost every particular state or province in those nations. Practicing Catholics constitute a minority in most countries of Europe. I’d suggest to you, Young Canadian RC Male, that it’s because of an increasingly minority status that protected speech is under attack. I’d suggest embracing the view that minorities have rights that must be rigorously defended from the tyranny of the mob.

    One really doubts a sociopath of a child molester will confess the sin, because usually he doesn’t see this as “abnormal”.

    In the case of many sociopathic child molesters who were priests, tioedong, we know that they did confess their crimes. I refer you to the 2002 depositions of Bernard Law as an example. In fact, I think it’s arguable that some of what Mr. Law (Sorry, but I refuse to think he’s a reverential figure of any sort) revealed in his depositions about his dealing with subordinates could arguably have been covered by a situation of clergy-penitent privilege outside the “seal of confession”.

    Whether or not a state acknowledges a higher authority does not change the reality that one exists–the one, in fact, from which the state derives its own authority.

    Again, that’s an understandable, laudable religious viewpoint, Grateful Catholic, but one which does not have basis in American civil law. You can’t appeal to the excellency of a particular religion and its views on authority in a court of law in this country (nor in Ireland, which has been disestablished since the Republic’s constitution took over from the Free State’s), which is why I said that “because the state has no authority over the seal of confession, it can exercise no authority over the seal,” is not a valid civil argument. I understand you think that the religious argument trumps the civil, but you’ll need to come up with a good civil argument, too, if you can’t appeal that high up. For instance, jilly4ski pointed out:

    . Breaking the seal or the privilege (as it is called in the US), is attack on all the privileges. Marital, spousal, lawyer client, etc. If the priest penitent privilege is broken by force then the other ones can be as well. I would guess that lawyers in US would oppose this if the idea ever gets floated here.

    Expound on that thought, and you have a good defense for clergy-penitent privilege.

  29. Imrahil says:

    Dear @PostCatholic,

    while I don’t deny that you are probably right when strategy, and strategy alone, is concerned – and while Prof. Peters is certainly right where the point of even purely civil usefulness for the state itself is concerned, still the following must be said.

    To admit in public defence and similar activities that a valid “civil” point of view is even so much as needed, is to sign a document of unconditional surrender to the State, and that is a non possumus. And a State seen from a point of view that trumps out as to secularistness at least some positions validly uttered in the German Supreme Court by secular judges (I have Profs. Böckenförde and Di Fabio in mind). Only he is free who wants to (not necessarily is ready to, but wants to) die for what he wants to do freely.

    If used for making the argumentation more convincing, even then it should always be introduced with a “by the way” and “only to mention” and “this being granted as first point, we also say” etc.

    As a matter of fact, to follow the tenet of Faith as far as the Constitution allows is precisely the position of Emperor Decius. We follow the Constitution because, by happy conincidence (and, largely, the faith of its fathers), neither U. S. nor German demand anything the Faith does not allows.

    I pity the priests for the punishments, but I fear not an infortitude of theirs, but bugging devices; if you please excuse the nonchalance. But wasn’t there such a thing that in some necessities, to which this would plainly belong, it was enough for validity and legitimacy to confess “I’m a sinner”, period, Act of Contrition?

  30. Imrahil says:

    but one which does not have basis in American civil law. You can’t appeal to the excellency of a particular religion and its views on authority in a court of law in this country.

    ad 1. So much the worse for civil law.

    ad 2. So much the worse for the court of law if we don’t obey it.

    And then, also and, just by the way, wouldn’t it also deal a blow to… … … etc. etc.

  31. PostCatholic says:

    To admit in public defence and similar activities that a valid “civil” point of view is even so much as needed, is to sign a document of unconditional surrender to the State, and that is a non possumus.

    You’ve just save the dioceses of the nation a lot of money! They have no need of their lawyers any longer. They can just send their most ardent evangelists to the courtroom when required.

    Oh, I’ll be less facetious. What is at issue here is an extension of civil protection to certain categories of speech. There was a time in England when not only what might be said in a confessional wasn’t protected, neither was the possibility of confession at all. Religion, if it’s to enjoy certain privileges (perhaps even rights?) where it is not synonymous with the state, must cooperate with the engines of power.

    For now, government largely agrees that there are good and valid civil reasons for not riding priests to Tyburn on account of the offensiveness of their papist views, even were the majority of the public to agree such views are offensive. That’s something to be defended in terms of civil law and secular reason. And in most western countries, government agrees that things a penitent says to a member of the clergy (or an analog like a Christian Science practitioner) for their spiritual good ought to enjoy an exemption from inquiry into criminality. I think that’s something you ought to vigorously defend, too, under the codes of the civil law and with political appeal to the secular sense of reason.

    Stating “I believe in deity x, whom you do not acknowledge, and though deity declines to testify on his/her own behalf, s/he nonetheless requires y of the state” is a non-starter in an argument of “adherents of deity x deserve privilege or recognition right y from the state that does not acknowledge deity x,” because it begs the question.

  32. Imrahil says:

    I wasn’t talking about evangelizing the courtrooms, but about upholding one’s rights. I have a fancy – allow me the facetiousness – that I dream of something still more extravagant than having the civil authority support for one’s belief: acting according to one’s belief regardless of what civil authority says.

    There was a time in England when not only what might be said in a confessional wasn’t protected, neither was the possibility of confession at all.

    I wonder. There may have been a time where there was no Catholic priest at all in England. But whenever there was one, and he found some Catholics, could they really hold him back from hearing confessions? They could perhaps hang him for it, I don’t doubt that.

    Now, I do propose arguing for one’s rights in legal and in secular terms. It’s more comfortable and less temptatious for us; these arguments are right in themselves; and, what is more, it’s less sinful for the responsible persons exercising civil authority.
    Only I’d prefer to evade the unspoken general undertone that says: We do just everything Father State may say. For the sake of honesty if for no other reason, Father State must know that we’re telling him what he should in our view do, and why from his own position it is best for him to do (as it is), but flatter him with obedience avowals we cannot. Of course, no one does this, but the general tone of public discussion has so much of this as undertone that a clarification might be helpful, especially when we take refuge to secular arguments also.

    By the way, the first argument on our side is that the state professes freedom of religion; he deprives himself of any logical right to claim it if he persecutes a religion; what is more, persecutes it by forbidding a particular part of religious practice that was valid and well-known at the time the Constitution was enacted, and that was ever included in all talk of religious freedom sincerely talked.

    Excuse my calling the State with the masculine pronoun.