Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, July 29, 2011

Ego te absolvo a peccatis tuis...

A few days ago Rick wrote about the reports from Ireland that may lead to Irish legislation which would mandate priests to break the seal of the confessional. He also invited a response. We know that other jurisdictions have also been contemplating similar changes in their laws as well. Well, I suppose what Caesar gives, Caesar can claim return. That is positive law-making pure and simple. In the context of American law, the priest-penitent privilege traces its heritage to the 1813 case in which Mr. and Mrs. Phillips were charged with the receiving stolen goods belonging to Mr. James Cating. Phillips had received Cating’s property from sources tied to the Reverend Father Anthony Kohlmann, S.J. It seems that Father Kohlmann had received the stolen goods during the administration of the sacrament of confession/reconciliation. It was the intent that the stolen property would be returned to its rightful owners.

Father Kohlmann was summoned to testify in the judicial proceedings concerning his knowledge about the source of the stolen property that had come into his possession. He could not answer citing the Canon Law norm regulating the secrecy of the confessional. Canons 983 and 984 of the present Code of Canon Law preserve the inviolability of the seal of the confessional. It is a crime for the priest to disclose what he knows from the administration of the sacrament; moreover, the confessor is absolutely forbidden to use the knowledge received from a confession that in any way that might prejudice the penitent.

Under the civil law, this and all other evidentiary privileges (e.g., spousal privilege; lawyer-client privilege; doctor-patient privilege; and the privilege of news reporters) are creatures of the positive law. Spouses, lawyers, doctors, and reporters have been held in contempt for not disclosing what they may have known about another that was arguably protected by the privileged communication they claimed. Others have been prosecuted for their refusal to testify. The fundamental justification for these privileges is that they are important to society and the law that governs it. While it is a fact that a witness is typically obliged to disclose all that he or she knows about the subject to which he or she has been called to testify, privileged communications that emerge from certain relationships are to remain in confidence and protected from disclosure.

Clearly those who confess sins which may also be great offenses against their neighbor are in trouble not only with the civil authorities but also with the law of God. But unlike the person who commits a crime and does not also take it to confession, the penitent is in a different case. He or she has already expressed contrition before God. Might this also lead to a parallel expression before the neighbor who has been wronged? In exercising his canonical office, the priest has a role in exhorting the penitent to reconcile with the neighbor who has been wronged. Those who do not confess will not have the benefit of this exhortation. Would it not make sense to see that preservation of the priest-penitent privilege may very well lead to greater justice?

When legislatures contemplate modifying or repealing the priest-penitent privilege, they should take stock of this. The New York court which heard the case involving Father Kohlmann came to realize this and upheld the seal of the confessional. (More can be learned about the case of Father Kohlmann by reading the essay “Privileged Communications to Clergymen” at 1 Catholic Lawyer 199, 1955.)

I pray that the legislatures contemplating modifying or abolishing the evidentiary privilege will preserve it. While it may not seem to be this, the seal of the confessional can be a means of furthering justice rather than its nemesis. As one who happens to be both lawyer and confessor, I think the position has great merit that advances the common good.


RJA sj



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