Priest/penitent privilege and a state’s violation of the Seal

From ZENIT comes this about an attack on the Sacrament of Penance and the privilege of priests not to be forced by law to reveal confessions.

This is an interview.  My emphases and comments.

Seal of Confession Goes on Trial

Church and State Face Off in Court

By Annamarie Adkins

SALEM, Oregon, AUG. 26, 2009 ( When Father Timothy Mockaitis heard inmate Conan Wayne Hale’s sacramental confession on April 22, 1996, he had no idea it was being recorded. [RECORDED!]

He also didn’t know that the event would spur an unprecedented legal case that attempted to demonstrate that a violation of the seal of the confessional was an infringement on the free exercise of religion guaranteed by the First Amendment to the U.S. Constitution.

Father Mockaitis details these pivotal events in his new book, “The Seal: A Priest’s Story.” The pastor of Queen of Peace Catholic Church shared with ZENIT how this case involved not only canon law versus civil law, but also a threat to the long term viability of our Constitutional freedoms.

ZENIT: You filed a lawsuit to prevent disclosure of the contents of the confession. What were your legal claims?

Father Mockaitis: Our legal position was based essentially on First and Fourth Amendment violations, which concern religious freedom and protections against illegal search and seizure.

We also claimed civil rights violations against privacy. This was an offense against not only the Church, but against the penitent himself. [Do I hear an "Amen!"?]

But we also raised moral and ethical objections that this particular and deliberate intrusion by the state was one incident that could never be justified for a greater good.

The integrity of both the Constitution and an unmistakable explanation of Canon Law, and the centuries-old tradition of the Church about the absolute secrecy of the seal in the sacrament of reconciliation, were all presented in this case.

[Get this…] It was the first time an attempt was made in court to define a violation of the seal of confession as a First Amendment violation.

The state consistently claimed the tape as among the body of evidence in its investigation.

A priest comes to the confessional in a parish church, a jail cell or a hospital bedside not as a judge and jury, but as a pastor of souls.

The actions of the state, and the response of the Archdiocese of Portland, set up a never-before-test of the American Constitution. [!] I felt state authorities had backed themselves into an untenable legal corner.

ZENIT: American law normally protects something called the priest-penitent privilege, like the attorney-client privilege. How did that figure into your case?

Father Mockaitis: [NB!] The priest-penitent privilege, like the attorney-client privilege, is granted in this country from the common law of the land. Civil authorities knew this was a sacrament of the Church and they secretly taped it because it was that sacrament; they had the audacity to cross this line between the values of Church and state.

In Oregon as of 1996, if one party — in such a relationship as priest-penitent — was willing to reveal information and wave the assumed confidence, then the other party could not object, despite his or her desire to maintain the privilege.

However, neither the penitent nor myself as confessor knew of the taping. By the time I got wind of this surreptitious act done with the approval of the local district attorney, a warrant had already been issued and signed by a local judge for law enforcement authorities to listen to the contents of the tape. [!]

As priest and confessor I was forbidden to grant any waiver of the confidence from the sacrament, so from the beginning there was no doubt the priest-penitent privilege had been violated. We demanded the immediate destruction of the tape and its written transcript.

One footnote to mark is that as a result of this case, about two years after litigation, Oregon revisited the priest-penitent privilege and granted protection for the priest (or member of any clergy) who could claim immunity from public testimony if he and his religious organization had an expectation of privacy.

The seal of the sacrament would certainly meet those criteria.

[Here is a good question…] ZENIT: Are there other stories like yours of the seal being broken? Is this a growing phenomenon? Do you see it as part of a trend about disrespect for religious freedom?

Father Mockaitis: No incident as is described in "The Seal" had ever come before a court of law in this country. The late William F. Buckley wrote, in his estimation, this action was “naked fascism, truly the end of the line.[!]

I don’t believe it is likely that secret eavesdropping on conversations between priests and penitents is a growing trend in this country, but the revelation of truth and the limits that the law allows between civil authorities and clergy are being pushed to more narrow levels[More on this in another entry.]

For instance, just a few years ago Connecticut almost passed a law requiring priests to report certain crimes that are disclosed in the confessional.           
The sad and painful saga of clergy sexual abuse in this country has indeed made professional confidence a more tenuous protection. Yet, it seems to me, the search for truth has in many cases gone well beyond professional respect and reasonable investigation to reach a far more intrusive and disrespectful level.

ZENIT: Why is there a seal of the confessional? Didn’t penitents once confess their sins publicly in church to the whole assembly?

Father Mockaitis: I believe the seal of the confessional finds its greatest justification in the protection of the integrity of the sacrament and for the safety and respect of the individual penitent.

Although, in the early centuries of Christian history, we do hear of the public acknowledgement of sins and the exercise of public penance, some sense of personal privacy was always a part of this sacrament.

The seal guarantees that whatever may be shared between priest and penitent will forever remain confidential.

To know this truth is to grant instant trust for the penitent to speak openly and honestly about whatever his or her struggle with sin may be. The seal creates an environment in which the penitent can be disposed to receive the grace of healing from a God of mercy.

ZENIT: Why shouldn’t the seal be broken when a great public good could come about? Don’t priests usually instruct those who committed a heinous crime to turn themselves in to the police as part of their penance anyway?

Father Mockaitis: What would be the greater good that might justify the revelation of a sacramental confession: the good of the soul of the penitent or some piece of so-called “evidence” that might lead to the conviction of guilt or innocence of an individual?

While the safety of citizens is crucial for the common good, is there no other ethical and legal way to search for evidence besides the invasion of the sacred trust established in the sacrament?

Law enforcement has developed myriad ways to seek evidence for the conviction or innocence of an individual that would make the eavesdropping of a conversation between priest and penitent a desperate method of investigation.       

The purpose of a penance is to seek justice, to repair the damage done by sin and to accept personal responsibility for one’s actions.

In the course of conversation between priest and penitent, in the case of a serious crime, the penitent may come to the realization that submission to authorities is the most appropriate way to be granted forgiveness.

But, if an individual has come to the sacrament properly disposed and sincerely seeking reconciliation, the priest is obliged to carry through as a pastor of souls, not as a police officer.

ZENIT: Your case received some attention in the media. What was the general public reaction to the recording of the sacrament? Do you believe the public’s response is a barometer of peoples’ views about the importance of religious freedom?

Father Mockaitis: This case received an enormous amount of media attention.

However,[get this…] the reaction of the mainstream population was far more visceral. Universal shock, outrage, insult and fear about a new disrespect for people of faith were not uncommon.

Good people knew this was neither about the Catholic Church alone, nor about this sacrament alone, but rather about our Constitutional protections in the long run. I was amazed and edified by the united voice of concern well beyond the Catholic Church.

ZENIT: What happened to the tape recording of Hale’s confession? Was it ever used in evidence or destroyed?

Father Mockaitis: Despite the state authorities’ and the District Attorney’s promise at that time that the tape would be destroyed after the murder trial of the inmate, the tape still exists to this very day.

The ultimate finding of the Ninth Circuit Court of Appeals [oh dear] that this action was a blatant violation of the First and Fourth Amendment made the action of this taping illegal[WOW!  That is a surprise from that court!]

Although it was never played during the trial of the inmate, the tape was not destroyed a year after the Appeals Court issued its opinion in January of 1997.

For what purpose does it remain more than 10 years since the inmate’s trial? 

It remains a red flag of warning for all those who treasure our First Amendment protections.

* * *

On the Net:



WDTPRS kudos to Fr. Mockaitis!

About Fr. John Zuhlsdorf

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This entry was posted in Our Catholic Identity, SESSIUNCULA, The future and our choices, The Last Acceptable Prejudice and tagged , , . Bookmark the permalink.


  1. Random Friar says:

    The fact that this tape STILL exists boggles the mind. The courts need to step in here and order its destruction. I would be sorely tempted to file suit against the police here for violation of civil rights.

  2. Melody says:

    Unfortunately, I think they missed a really good point of defense, but perhaps it was wasn’t as strong an argument then as now.

    The moment a person begins their confession, they enter a morally therapeutic relationship with the priest, which can be compared legally to the relationship doctors, especially mental health workers, have with their clients. This can be easily argued not only because of the resemblance, but because the confessional inspired the importance of confidentiality in these fields, and makes any violation of the confessional a violation of existing laws as well as religious discrimination.

  3. JohnMa says:

    For those interested, the case is reported at 104 F.3d 1522. The 9th Circuit opinion does not require the tape be destroyed it only requires that the tape not be used in court and that the tape be dealt with in accordance with OR’s rules of evidence. The OR legislature changed the rule of evidence at issue in this case 2 years after the case was decided although the tape would not have to be destroyed under the new rule either.

  4. Jacob says:

    This is a growing phenomenon that is scary, but this…

    We also claimed civil rights violations against privacy. This was an offense against not only the Church, but against the penitent himself. [Do I hear an “Amen!”?]

    I personally wouldn’t invoke any kind of civil right to privacy. I think we would all agree that the invented ‘right to privacy’ and its progeny the abortion industry are great evils that must be reversed. We must find different arguments (such as freedom of religion as mentioned) and leave aside attempts at invoking ‘right to privacy.’

    We can’t have it both ways.

  5. JohnMa says:

    Melody, I don’t think the argument would be open because of the strict definition under rule 507 of the OR Rules of Evidence, which was last updated in 1989. Fr. would have been licensed in order for this to apply. I don’t think that it would have to be some type of common law argument that would fail.

  6. Melody says:

    The reason I bring this up is that secularists see the Church as thinking itself above the law, but there are secular groups given the same privileges.

    JohnMa, you’re right that the licensing requirement would weaken the argument significantly. I wonder if valid ordination could be considered a type of “license.”
    Natural healing doctors get protection too, despite only having certification from a private college or organization.

  7. Thomas G. says:

    Father Mockaitis: “Although, in the early centuries of Christian history, we do hear of the public acknowledgement of sins . . .”

    No, this is not correct. PUBLIC confession of sins has NEVER been a practice in the Church. Yes, public PENANCE has been practiced, but not public confession, at least not as a practice prescribed by the Church.

    The notion that private confession of sins was introduced by the Irish monks in the early middle ages is a sheer canard.

    Too bad Father Mocksitis falls into this historical mistake, as his interview is otherwise exemplary.

  8. Thomas G. says:

    As early as 388 AD, St. John Chrysostom wrote:

    “The wonderful thing is not simply that God forgives our sins, but He does this without even revealing them nor making them manifest and evident: He does not require that we come forward publicly to tell out our faults. . . . Rather, He both forgives the sin and does not require that it be paraded before an audience.”

    Public confession of sins was never a practice of the Church.

  9. Breck says:

    I remember reading that communist governments supplied fake “priests” to hear the confessions of
    Catholic prisoners. These “priests” then reported what they had learned to the secret service. May God preserve us.

  10. The lines are being drawn, why do I have a feeling it will soon be illegal to be Catholic?

  11. frsquires says:

    Just another unfortunate example of the State of Oregon, my beloved home, pushing the boundaries of the morally unacceptable. We also have the distinction of being the first State in the Union with an assisted suicide law. Sancta Maria, Mater Dei, ora pro nobis!

  12. Kimberly says:

    I agree with Random Friar. The tape needs to be destroyed not only for the sake of the person involved but for the rest of us.

  13. Timbot2000 says:

    I’m sending this link to William Grigg of Pro Libertate blog, the best monitor of police and prosecutorial misconduct in the US.

  14. Step by step, inch by inch, towards 1984 (the book).

  15. The left will by any means they can employ to silence the Church. Folks, we haven’t seen anything yet. I said it, and I’ll say it again. It’s going to get worse before it gets better.

  16. Priest/penitent and other chaplains’ privileges are particularly important in the US armed forces. Physicians and psychologists in the military are obliged to report to their patients’ commanders in many circumstances. Only chaplains are allowed to remain absolutely silent about what’s going on with military people; and the military regards this as highly useful and practical, because even atheists need a safety valve who doesn’t break confidentiality.

  17. TomB says:

    Why pretend we have a Constitution anymore? Americans need to wake up.

    There was some talk a year or two ago about the possibility of cell phones having a feature whereby someone could eavesdrop on a conversation even if the phone were not in use, but only turned on. I have no idea if this could be true, but I never never take a cell phone inside a church (for fear of forgetting to mute it), and certainly would never dream of taking one into a confessional. And I rarely do a face-to-face confession.

  18. The lines are being drawn, why do I have a feeling it will soon be illegal to be Catholic?

    Let’s just hope, when that time comes, that there’ll be enough evidence to convict us.

    As a Catholic and a criminal defense lawyer, this story fills me with rage. I couldn’t see myself ever again trusting, respecting or dealing amicably with a prosecutor who had perpetrated such an outrage.

  19. ssoldie says:

    I had never heard that confession’s were public in the Catholic Church, but penance’s were. Although I do know some of the protestant sect have had public confession in thier services.

  20. dcs says:

    Here’s a report from two years after the incident:

    Note that while it appears that the prosecution arranged for the taping, it is the defense who is said to want to use the tape; and note also that Mr. Hale did not describe himself as Catholic at the time that Fr. Mockaitis heard his confession. (This does seem to jibe with my somewhat foggy recollection of the event.) However, there is another interview at Ignatius Insight –

    – in which Fr. Mockaitis states that Hale is Catholic. So perhaps he was a lapsed Catholic at the time? Regardless, it is good to hear that he is practicing his Catholic faith now.

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