The Seal of the Confessional

by Luis Granados

Australia was in the news last month, when Prime Minister Julia Gillard and other leading government officials pressed for a change in the law to require all adults, including members of the clergy, to report to the authorities all cases of child sex abuse that come to their attention. Gillard, one of the only (perhaps the only) non-communist national leader who openly professes non-belief in God, explicitly stated that this rule should apply with full force to information a priest receives during the Catholic sacrament of confession. “It's not good enough for people to engage in sin of omission and not act when a child is at risk” Gillard reasoned. Senator Nick Xenophon called the seal of the confessional a “a medieval law that needs to change in the 21^st century."

The church responded with its typical intransigence, as Sydney’s Cardinal Pell insisted that a priest may never divulge anything revealed in the confessional, ever, for any reason. Canon law section 983.1 is crystal clear: “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”

There’s dissension in the Catholic ranks, though. Retired Sydney bishop Geoffrey Robinson accuses the Cardinal of being out of step with the majority of Australia's bishops on this issue, and agrees that priests must be prepared to break the confessional seal if it is for the “greater good.” Even more importantly, Tony Abbott, an outspoken Catholic who is the official leader of Australia’s parliamentary opposition, agrees that “The law is no respecter of persons. Everyone has to obey the law, regardless of what job they are doing, what position they hold.” He pointedly included priests within his definition of “everyone.”

In legal terms, what’s at stake is sometimes called the “confessional privilege,” or the “priest-penitent privilege,” or the “clergy-communicant privilege.” It is one of several exceptions to the general rule that the law can compel individuals to disclose information, especially in the context of a criminal trial. For example, there is a right not to testify against yourself, a right not to testify against a spouse, and a right to keep many lawyer-client or doctor-patient communications confidential.

The details of the confessional privilege vary from place to place, and from state to state within the US. In some places, it only applies to information disclosed in a formal sacrament, like the Catholic confession; in others, it applies to all communication with a “spiritual advisor.” In some places, the cleric can choose to waive the privilege if he wants, and the defendant can’t stop him from doing so; in others, the privilege “belongs” to the defendant, who has the sole power to decide whether it can be waived or not. In all cases, if the privilege doesn’t apply for some reason and the cleric refuses to testify anyway, the consequence is contempt of court, punishable by fine or imprisonment at the nearly unlimited discretion of the judge.

There are even some places, like Texas, where the law recognizes no such privilege at all, and a priest who refuses to tell what he knows could be locked up until he decides to comply with the same law that applies to the rest of us. There are no reported cases where that has actually happened, though. Either Texan priests have been cooperative, or, more likely, Texan prosecutors have been too cowed by God expert political power to use the authority they have to protect Texan children.

One thing Sen. Xenophon was wrong about is calling the clerical privilege a “medieval law.” English common law, the original source of both American and Australian law, generally does not recognize such a privilege. In the famous Gunpowder Plot of 1605, for example, when Catholics tried to blow up the Parliament, Father Henry Garnett, S.J. refused to reveal to the court what he had learned in the confessional about the plot. After he was executed, his head was mounted on a pole on London Bridge. Less dramatically, in R v Hay, 175 ER 933 (1860), Rev. John Kelly was jailed for contempt after refusing to tell an English court which penitent had given him a stolen watch for safekeeping.

In fact, when you look deeper into history, in earliest Christian times there wasn’t any need for a confessional privilege, because confessions were not done in secret. The first Christians, those closest in time to Jesus and his original followers, believed in the power of priests to forgive sins but felt that true repentance required public confession, in front of the whole congregation. This state of affairs lasted until 459 CE – in other words, quite a bit longer than the entire history of the United States – until Pope Leo I decided that he knew more about God’s will than they did and switched course. Confidentiality undoubtedly increased the total number of confessions, and the total number of penances, some of which involved conscience-clearing payments to the church.

Regardless of the history, the privilege certainly exists within the popular mind today, which explains why even in places like Texas where it doesn’t even exist in the law prosecutors are reluctant to challenge it. This derives in part from popular culture, e.g., movies like Alfred Hitchcock’s 1953 I Confess, in which handsome Montgomery Clift refuses to divulge what he learned in the confessional even when he himself is falsely accused of the same murder, and gossip about his highly unpriestly history with gorgeous Anne Baxter starts to spread. How heroic! It’s a little less heroic when you think about the real-world cases today where priests refuse to rat out serial child-molester fellow priests because the pope said they shouldn’t. In Australia, the privilege is protecting members of groups like the Hospitaller Order of St. John of God, which ran homes for boys who were wards of the state, who were routinely beaten, gang raped, drugged and declared mentally ill and subjected to shock therapy if they didn't submit. Two boys appeared to have died in the group’s care without any report to authorities, and at least seven boys formerly under the group’s care have committed suicide as adults.

The question is, should such a confessional privilege exist at all? And if it is to be cut back, why just for child sex abuse? There are plenty of other heinous crimes as well. Undoubtedly, there is something appealing about the right to disclose secrets in confidence, that may provide mental comfort to a wrongdoer. But how much do we really care about criminals’ mental comfort?

A century ago, legal professor John Henry Wigmore analyzed the whole field of privilege against compelled testimony, as part of his legal treatise on evidence. After studying essentially every reported privilege case in existence, Wigmore distilled four principles that courts use to decide whether a particular privilege should apply:

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 relationship. 3. The relation must be one which, in the opinion of the community, ought to be sedulously fostered. 4. The injury which would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

When you apply these principles to something like the spousal privilege, they make sense. Strong marriages are important for society, and if you can’t admit mistakes to your spouse, marriage just wouldn’t be the same. Jerry Sandusky’s wife wasn’t called to testify against him, and no one ever suggested she should have been; even a monster like Sandusky is allowed that much. For somewhat different reasons, the lawyer-client privilege makes sense as well. A criminal lawyer must defend even the guiltiest scumbag by forcing the prosecution to prove its case, using only lawfully obtained evidence. It’s not possible to do that properly unless you can get a straight story from your client, which you can’t get if the client knows that whatever he tells his lawyer might be used against him. So courts, applying Wigmore’s principles, will allow the guilty to go free occasionally rather than violate the spousal or lawyer-client privileges.

The same logic does not apply to the confessional privilege, especially in a society where a third of the people call themselves “not religious.” For that third, which ought to count for something, it is unimaginable that crooks should go free so that a purely religious relationship can be “sedulously fostered.” Even among the other two-thirds, quite a few people are not all that religious, since only a shrinking minority of Americans attend church regularly. And even among that devout group, only a minority belong to a denomination which believes God delegated sin-forgiving authority to a black-robed fellow sinner. When you compare the priest-penitent relation to the spousal or lawyer-client relation on the “opinion of the community ought to be sedulously fostered” standard, it simply doesn’t measure up.

It’s also important to understand that if the privilege were scrapped, it would still be an easy matter for those with guilty consciences to unburden themselves on a priest. The last time I went to confession (quite a while ago), the physical structure was such that the priest and I couldn’t see each other, although we could hear each other’s voice. I could easily go to a priest in a parish where my voice wouldn’t be recognized, tell him about all the rape/murders I’ve committed, get my instruction on how many Hail Mary’s to say, and drive off with my soul saved and my secret intact. There is no need to keep priests above the law to allow me to do that. That kind of anonymity isn’t possible with a lawyer or a spouse, which is why they deserve the privilege, and priests do not.

So more power to Julia Gillard and friends. May her brand of common sense somehow beam around the planet to a country that could sorely use it.