From Lexology:
A note about the Seal of Confession and requiring priests to break the Seal:
State Could Not Require Priest to Breach Confessional Without Satisfying RFRA
In Ronchi v. State, No. 5D18-194, 2018 WL 2988975 (Fla. 5th DCA June 15, 2018), the court of appeal held that a circuit court order granting a Catholic priest’s motion for protective order, in part, and denying the motion in part, after the priest was served with a witness subpoena requiring him to testify in a criminal case regarding certain communications that took place during confession contravened the Florida Religious Freedom Restoration Act (FRFRA). The trial court found that the communications between the priest and alleged victim of sexual abuse occurred within confession. It focused almost exclusively on the Florida Evidence Code in determining that the communications were privileged under section 90.505, the privilege could be asserted by both the priest and the victim, and the priest had partially waived the privilege during his conversation with the victim’s mother and her friend. As to whether the priest disclosed the abuse, the mother testified, “[N]ot directly, but it could be understood from the conversation.” The court of appeal ruled that FRFRA should control the case, rather than section 90.505, meaning that the state must establish that coercing the priest’s testimony furthers a compelling governmental interest and is the least restrictive means to further that interest. The court ruled that it is undisputed that the state has a compelling governmental interest in prosecuting sex offenses perpetrated against children, but disagreed that the state met the second test because: (1) the priest’s testimony would, at most, be corroborative evidence; (2) the case does not involve a child victim who, because of his or her age, might be unable to adequately testify about the alleged sexual abuse; and (3) the state could seek to have the alleged victim testify about her purported prior disclosure of sexual abuse to the priest. The court quashed the trial court order. Concurring, Judge Richard Orfinger argued that the trial court also misinterpreted section 90.505 because while the clergy can assert the privilege, only the penitent can waive it.
There are a few troubling elements in this, as well as positive. Positive: the privilege of the Seal is upheld.
However, the priest put himself and the Seal in danger by intimating to others what could have involved the content of a confession.
Also, even if a penitent says it’s okay to talk, you should keep your mouths shut.
Fathers… keep your mouths shut.
Keep your mouths shut.
Keep your mouths shut.
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That’s interesting. I’m an attorney by profession and a client can certainly chose to waive the privilege. I would imagine that the law of priest penitant privilege is the same of course from a civil point of view. But I guess Fr. Z is saying that under Canon law that the priest can not disclose the communication even if the penitant waives?
Even if the penitent waives secrecy, the priest is still bound.
Priests should hear confessions behind a small grill or screen and in a hushed voice.
I have read that the seal must be treated precisely as if the priest heard nothing and knows nothing, since indeed _as a man_ he knows nothing.
Thomas: You are correct—in the civil sphere there are many who view the priest-penitent “privilege” in the same manner as the attorney-client privilege, where the penitent can waive the “privilege” so the priest may disclose what is said. For the non-sacramental internal forum (e.g. spiritual direction apart from Confession) this is true. Indeed, for some matters such as a disclosure of child abuse, the priest is still legally bound to report the disclosure even against the wishes of the one disclosing it due to mandatory reporting laws.
For Confession (the Sacramental internal forum) this is never true because the Seal of Confession is absolute—neither priest nor penitent can waive it, because it does not belong to either to waive. This is even true if the matter is not strictly part of the penitent’s confession (there was a case involving a Fr. Bayhi in Louisiana a few years ago concerning this). Civil laws do not always respect the distinction, which places a priest in a terrible dilemma: divulge and therefore commit a grave sin and incur excommunication, or refuse and incur imprisonment for contempt of court.
The penitent is not bound by the seal and may waive it. This happens for spiritual direction, if it includes confession. Otherwise, the priest and directed could not discuss what was confessed.
Father Morelli,
Am I right in takling your meaning as “the penitent may not waive seal for the priest” as opposed to “penitents may not say what they confessed?”
Beltway Catholic: The penitent is not bound by the seal and may waive it. This happens for spiritual direction, if it includes confession. Otherwise, the priest and directed could not discuss what was confessed.
This is not correct.
While the penitent may speak of what was said in Confession as the seal does not bind him/her, the Seal of Confession binds the priest absolutely. He may not speak about things said in confession so as to link either directly or indirectly the sin with the sinner. Not to anyone, not even to the penitent.
If the spiritual director hear confession and then gives spiritual direction, he cannot make use of what he heard in confession for direction.
When spiritual direction and confession are joined, the priest has three options:
1 (Generally the best option) Offer sacramental confession at the close of the session of spiritual direction, so there is not even the appearance of breaking the seal.
2 Give spiritual direction in the context of sacramental confession so that the direction is also bound by the seal. (but don’t do this during normal confession times while people are waiting in line.) This has the disadvantage that the priest will have no accessin later sessions to the advice he gave this time.
3 Hear sacramental confession first, but then the priest must be careful in the rest of the session to limit his advice to information he has from outside the context of sacramental confession. This is hard and dangerous for the priest.
The same seal binds everyone who overhears a confession, too. The real protection of the seal of confession is that we must be willing to suffer as confessors and even to die as martyrs, God help us, to preserve it. Thanks to the McCarricks and Maciels that time is coming on us faster every day. A sacrament, I have heard said, is an oath to the death, so don’t be surprised when the time comes.
Wiping the dust off the manuals …
The seal binds, according to Prümmer, the priest and anyone except the penitent who hears the confession or learns information from a confession. Strictly it is directly violated when one connects the sin with the person, including revealing the penance given (provided this can identify whether the person confessed grave or venial sins). It’s direct violation is not only a grave sin, but an automatic excommunication. It’s indirect violation is a grave sin and can be punished by other ecclesiastical censures.
It binds when the person has approached for the sake of confessing his sins and receiving absolution. A man bragging about his sins is not protected by the seal (unlike what one might gather from movies).
Other information gained solely through confessional knowledge is also part of the seal. Things clearly not part of confession (“Oh, Father, it’s Mrs McGillicuddy, could you give me some donation envelopes after Mass?”), are not part of the seal.
Prümmer does state clearly that while outside the confessional a priest cannot even discuss with the penitent matter from the confession, the penitent can give permission for his sins to be discussed. It is not rare that if a priest needs to take advice on a matter, he may ask the penitent to discuss anonymously his sins with a distant priest (thus preventing the possibility of connecting the man and his sins). So, yes, the confessor can ask for, or the penitent could give permission to discuss the sins in extra-sacramental spiritual direction. This is usually imprudent, but might be done for a serious reason.
The question becomes then not then a matter of the seal but one of prudence. We do not want to make the burden any harder than it already is. Anything which would seem to suggest a betrayal of secrecy must be avoided, lest we push people away from confessing.
Many years ago I learned of a disturbing abuse of the sacrament of confession, namely that a seminarian, clergy member, or religious who had committed a sin (not publicly known) that could entail discplinary measures, would confess that sin to their superiors, so that the superiors would be prevented under the seal of confession from disciplining them about it (since that would make the sin public). This is just speculation, but I wonder if this could be a factor in the silence of certain bishops in regard to cases of sexual abuse.
But then, dear bourgja,
I might be wrong on this, but I think that
1. they can still discipline for the sin if (which is the somewhat easy part) there is a clean path outside the Seal which led to their knowledge, or which would have if after Confession – and (which is the difficult part) they, judging themselves objectively, see to it that their disciplinary measures are exactly the same as they would have been had they never heard the Confession.
2. Of course, they might also enjoin it as a penance to Confess to the sin in the external forum (perhaps the external-but-not-quite-public forum) towards them, and withhold absolution until they have done so or danger of death is imminent. That, of course, doesn’t break the Seal if the penitent then simply walks out of Confession; it is independent of absolution given; but if they really do intend to take Confession, and silencing the superior is only a (to them) welcome side-effect, it would help, and otherwise there is still no. 1.
Fr_Andrew says: It binds when the person has approached for the sake of confessing his sins and receiving absolution. A man bragging about his sins is not protected by the seal (unlike what one might gather from movies).
Other information gained solely through confessional knowledge is also part of the seal. Things clearly not part of confession (“Oh, Father, it’s Mrs McGillicuddy, could you give me some donation envelopes after Mass?”), are not part of the seal.
Is this how the Church is able to gather proof against priests who use the confessional for dastardly ends (e.g., soliciting sex in the confessional or absolving accomplices in crime)? It has never made sense to me that the seal could be used to insulate those types of criminals from ecclesiastical prosecution, but on the other hand, how does the Church tease out the evidence while still protecting those elements of a confession that are protected by the seal?
Which is why the traditional counsel has been for one to have confessor and spiritual director be different person whenever possible.