Sarah Mitchell
The Catholic Church places great importance on the act of confession, which is formalised through the use of confessional booths. The Church also values the confidentiality of confessions, with Canon Law stating that priests are bound by the Seal of Confession, which forbids them from disclosing any information obtained during confession. This is supported by the law of many countries, with the priest-penitent privilege being recognised in many jurisdictions. However, there are exceptions to this privilege, such as in cases of child abuse, where some states explicitly deny the clergy privilege. The status of the priest-penitent privilege varies across different legal systems, with the Supreme Court of Canada, for example, assessing 'religious communications' on a case-by-case basis.
| Characteristics | Values |
|---|---|
| Confidentiality | The Church has long valued the importance of confessing sins and the Roman Catholic Church has formalized the practice. |
| Roman Catholic priests have a duty under canon law to hold in confidence any information obtained during confession. | |
| The Official Code of Georgia Annotated states that all communications made to a priest shall be deemed privileged and that the priest shall not disclose any communications made to them. | |
| The Roman Catechism states that "the faithful are to be admonished that there is no reason whatever to apprehend that what is made known in confession will ever be revealed by the priest to anyone". | |
| Pope Pius X taught that "the confessor is bound by the seal of confession under the gravest sin and under threat of the severest punishments both temporal and eternal". | |
| The Catechism of the Catholic Church teaches that "every priest who hears confessions is bound under very severe penalties to keep absolute secrecy regarding the sins that his penitents have confessed to him". | |
| Canon 21 of the Fourth Council of Lateran (1215) states that priests must take special care, "neither by word or sign, nor by any other means whatever, to betray in the least degree the sinner". | |
| Gratian's Decretum (published c. 1151) includes the following declaration: "Let the priest who dares to make known the sins of his penitent be deposed". | |
| Exceptions | Many jurisdictions have recognized the need for exceptions in extreme cases, such as child abuse, child neglect, sexual abuse, "notorious crimes"/murder. |
| At least six states in the U.S. explicitly deny the clergy privilege in child-abuse cases, according to the U.S. Department of Health and Human Services. | |
| The Supreme Court of Canada has also dealt with the issue of clergy-parishioner confidentiality, establishing a basis for assessing confidential ‘religious communications’. | |
| The priest-penitent privilege can be waived in some states if either or both parties grant a waiver. | |
| In 2014, Louisiana's Supreme Court ruled that a priest may be compelled to testify about what he was told in the confessional regarding a particular sexual abuse case. | |
| In October 2021, a report recommended requiring priests to notify the police about child abuse cases that are mentioned in confession. |
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What You'll Learn
The priest-penitent privilege
In many jurisdictions, certain communications between a member of the clergy of some or all religious faiths (e.g. a minister, priest, rabbi, or imam) and a person consulting them in confidence are privileged in law. For example, in New York, in the case of People v. Philips in 1813, a privilege for priests was recognised when the communication in question was obtained in the sacrament of Confession.
However, the priest-penitent privilege is not absolute and can be challenged in court. For example, in the United States, at least six states explicitly deny the clergy privilege in child abuse cases, and some states have modified the effect of statutory evidence law to restrict clergy privilege in such cases. In the state of Queensland, Australia, a law was passed on 9 August 2020, that requires members of the clergy to report known or suspected cases of abuse to the police.
The status of the priest-penitent privilege in English law has also not been absolutely determined. In October 2021, a report recommended requiring priests to notify the police about child abuse cases mentioned in confession, but this was rejected by Bishop Eric de Moulins-Beaufort.
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Exceptions to the rule
While statements made during Catholic confession are generally considered privileged or confidential, there are some exceptions to this rule where the priest-penitent privilege can be challenged in court.
- Child Abuse Reporting: At least six states in the U.S. explicitly deny the clergy privilege in child abuse cases, and lawmakers are carving out exceptions in other states as well.
- Waiver: In some states, both the priest and the parishioner must waive the privilege, while in others, either one can grant a waiver.
- Third-Party Presence: If a third party is present during the confession, it may not be considered truly "confidential."
- Intent of the Parishioner: If the parishioner was not confessing but rather seeking informal advice, the privilege may not apply.
- Voluntariness: Confessions must be made voluntarily to be admissible in court. If a confession is obtained through duress, threats, physical force, coercion, or mental pressure, it may be deemed involuntary and inadmissible.
- Miranda Rights: Confessions received during a detention interrogation without the individual first being informed of their Miranda rights, including the right to remain silent and to counsel, may be deemed inadmissible.
- Mental Condition: Confessions made by someone under the influence of drugs or suffering from a mental condition may be inadmissible.
- Right to Counsel: Confessions made after a person has sought an attorney are generally inadmissible unless the right to counsel is waived.
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Confidentiality in the Catholic Church
The Catholic Church places a high value on the act of confessing sins, which is seen as the route to forgiveness. The Church has formalised the practice of confession, with confessional booths where the priest is separated from the confessor by a wall and a screen obscuring facial features, allowing for anonymity.
The Catholic Church has strict rules regarding the confidentiality of confessions. The Seal of Confession, also known as the Seal of the Confessional or the Sacramental Seal, is the absolute duty of priests to not disclose anything they learn from penitents during confession. Canon 21 of the Fourth Council of Lateran in 1215 laid down the obligation of secrecy, stating that priests must not "by word or sign or by any manner whatever in any way betray the sinner". This was further emphasised by Pope Pius X, who taught that priests are bound by the seal of confession under threat of severe temporal and eternal punishments. The Catechism of the Catholic Church states that priests who hear confessions are bound under very severe penalties to keep absolute secrecy.
The priest-penitent privilege, also known as clergy-penitent privilege or confessional privilege, is a legal concept that recognises the confidentiality of communications between clergy and members of their congregation. This privilege is recognised in many countries and is similar to attorney-client privilege. In the United States, state laws generally exempt clergy from testifying in court about confessions, and the priest-penitent privilege is upheld. However, this privilege is not absolute and can be challenged and waived in certain cases, particularly those involving child abuse, child neglect, sexual abuse, and murder.
In Canada, the Supreme Court has dealt with the issue of clergy-parishioner confidentiality in the 1991 case R. v. Gruenke, establishing a basis for assessing confidential religious communications. While priest-penitent privilege is recognised in Canada, there are reporting requirements that oblige clergy to notify authorities if there is a reasonable apprehension that a child is at risk. Similarly, the Canadian government has recommended requiring priests to notify the police about child abuse cases mentioned in confession.
The Catholic Church takes breaches of confidentiality in confession very seriously. According to Gratian's Decretum, published in the 12th century, a priest who reveals the sins of a penitent is to be deposed and made a lifelong, ignominious wanderer. The Church also punishes anyone who records or divulges what is said in confession with excommunication latae sententiae.
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Clergy-parishioner confidentiality in Canada
In Canada, the law does not presume that religious communications are privileged. However, the Supreme Court of Canada has affirmed that religious communications are subject to a case-by-case analysis, allowing courts to determine whether the admission of such evidence would imperil the individual's freedom of religion.
The seminal case on clergy-parishioner confidentiality in Canada is R v. Gruenke, a 1991 decision of the Supreme Court of Canada. In this case, the court applied the Wigmore criteria for assessing confidential communications, which include:
- The element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties.
- The injury that would result from disclosure must be greater than what would be gained by the court having the evidence.
In the Gruenke case, the court found that the communications between Ms. Gruenke and her spiritual advisor were not confidential. There was no church policy outlining when communications were to be kept confidential, and at one point, Ms. Gruenke's boyfriend joined the conversation, indicating a lack of expectation of privacy.
While there is no statutory provision in Canada specifically protecting priest-penitent communications from the requirement to testify in court, two Canadian provinces, Newfoundland and Labrador, and Quebec, recognize the privilege in their statutes. Additionally, lower court decisions in Canada have recognized a case-by-case analysis standard for priest-penitent privilege.
It is important to note that the duty of clergy members to maintain confidentiality does not absolve them of their obligation to report certain crimes, such as child abuse, in some jurisdictions. In such cases, clergy members may be mandated by law to report suspected or known instances of abuse to the authorities, regardless of the confidentiality of the confession.
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The Wigmore Test
- The communication must originate in confidence and the parties involved must have a reasonable expectation that the communication will not be disclosed.
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties.
- The relationship must be one that, in the opinion of the community, ought to be sedulously fostered.
The priest-penitent privilege can be waived, depending on the state law. Some states require both the priest and the parishioner to waive the privilege, while others allow either party to grant a waiver.
While the Catholic Church is known for its dedication to the sanctity of confession, and priests can face severe consequences for breaking this seal, there are exceptions in extreme cases, such as child abuse, sexual abuse, and murder. In these instances, priests may be compelled to testify or report to authorities, as the needs of modern civil society to protect victims take precedence over religious laws.
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Frequently asked questions
Generally, no. The priest-penitent privilege, clergy privilege, confessional privilege, or ecclesiastical privilege is a rule of evidence that forbids judicial inquiry into certain communications between clergy and members of their congregation. However, the priest-penitent privilege can be challenged and waived in court.
The priest-penitent privilege is a rule of evidence that forbids judicial inquiry into certain communications (spoken or otherwise) between clergy and members of their congregation. This rule recognises certain communications as privileged and not subject to obligatory disclosure, similar to attorney-client privilege.
Roman Catholic priests have a duty under canon law to hold in confidence any information obtained during confession. Other religious groups often have similar requirements. A pastor of any denomination who discloses confessional information might be at risk of a civil lawsuit for an invasion of privacy or defamation.
Yes, many jurisdictions have recognised the need for exceptions in extreme cases, such as child abuse, child neglect, sexual abuse, murder, or "notorious crimes". At least six states in the U.S. explicitly deny the clergy privilege in child-abuse cases.
The status of the priest-penitent privilege in Canadian law has not been absolutely determined. In R. v. Gruenke, it was found that the communications were not privileged because there was no expectation of privilege between Ms. Gruenke and her pastor and religious counsellor.
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