In defense of protecting the seal of confession

Recent and unprecedented calls for legislative action in Delaware, Vermont, and Washington seek to remove the legal protection afforded Catholic priests under the seal of the confession when mandatory sexual abuse reporting laws are in place. These proposals, which would obligate priests to disclose what they hear during the Rite of Reconciliation, are serious cause for concern. If enacted, these laws have the potential to compromise the confidential nature of the Sacrament, undermining the trust of penitents that what they have said could be subject to disclosure, thereby and possibly undercutting Catholic teaching about the heretofore inviolability of the seal of confession.

Amid the present legislative attempts to revoke confidentiality during confession, it is important to keep in mind that the vast majority, but not all, jurisdictions respect the seal of confession. The sponsor of an earlier such proposed bill in California , which would have required priests to break the seal of confession in cases of child abuse, withdrew it from consideration in July 2019 just a day before it was subject to a public hearing, The withdrawal was due to the vociferous opposition from Catholics and other advocates of religious freedom; the sponsor realized that he lacked sufficient support to pass it out of Public Safety Committee to the full California Assembly.

Attacks on the seal of confession are not unique to the United States. For example, despite a recommendation of Australia’s Legislation Committee of the Legislative Council that the seal of confession be respected, officials its states of Victoria, Tasmania, Queensland, South Australia, and the Australian Capital Territory in Canberra have sought to direct priests to violate the seal of confession during investigations over the prosecution of child sexual abusers.

The seal of confession, a canonical right of Catholics, is essential in light of Jesus’ words “Whose sins you shall forgive, they are forgiven them; and whose sins you shall retain, they are retained.” Canon 983 unequivocally articulates the Church’s position: “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.” Of course, in order for priest to grant absolution and forgiveness, penitents must be contrite and promise to sin no more.

Two other sections of canon law address the great significance of the seal. First, Canon 1387, “A priest who in the act, on the occasion, or under the pretext of confession solicits a penitent to sin against the sixth commandment of the Decalogue is to be punished, according to the gravity of the delict, by suspension, prohibitions, and privations; in graver cases he is to be dismissed from the clerical state.” Even more to the point, Canon 1388 states that “§1. A confessor who directly violates the sacramental seal incurs a latae sententiae [literally “of a/the sentence passed”] excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.” Latae sententiae is an automatic excommunication.

Canon 1388 adds “§2. An interpreter and the others mentioned in can. 983, §2 who violate the secret are to be punished with a just penalty, not excluding excommunication.” In imposing the automatic excommunication, section 1383 specifies, in part, that individuals who are subject to this extreme penalty must be at least sixteen years old, know that their actions violated of Church law, have acted freely without threat of force or grave fear, have the use of reason, and not have acted mistakenly.

Section 1467 of the Catechism of the Catholic Church also unambiguously sets forth the Church’s position on the seal of confession:

Given the delicacy and greatness of this ministry and the respect due to persons, the Church declares 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. He can make no use of knowledge that confession gives him about penitents’ lives. This secret, which admits of no exceptions, is called the “sacramental seal,” because what the penitent has made known to the priest remains “sealed” by the sacrament.

Because of its centrality to the Rite of Reconciliation, it is important to review the history of how long the seal of confession has been an explicit part of Church teachings. Apparently the earliest reference to the seal of confession appeared in 1151 in the work if the Italian theologian Gratian, who compiled the edicts of previous councils as he noted: “Let the priest who dares to make known the sins of his penitent be deposed.” Gratian added that anyone who violated this precept should have been made a life-long, ignominious wanderer.

The Fourth Lateran Council in 1215 promulgated the earliest official pronouncement: “Let the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner.” In the same century, St, Thomas Aquinas devoted a chapter to the seal of Confession in the Summa Theologica. Centuries later, St. Pius X, in question 86 of his Catechism, reiterated the long-standing belief 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.”

Writing in defense of the inviolability of the seal of confession, let me make it clear that I have absolutely no sympathy whatsoever for evildoers who voluntarily and freely engage in heinous criminal activity by participating in sexual misconduct with minors; individuals who abuse children must be punished to the full extent of the law. However, a significant point of contention arises as to the extent a governmental officials can or should infringe in the internal operations of the long-held sincere religious beliefs of religions, insofar as the First Amendment guaranteed that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The government undoubtedly has an important duty to adopt and enforce laws designed to protect children from sexual abuse. But as well-intentioned as these bills denying protection to the seal of confession may appear, they seriously endanger religious freedom. Such bills may be the first in later efforts to push the boundaries of how far civil authorities can attempt to intrude on the internal workings of religious bodies and their spiritual leaders even if they are purportedly acting in pursuit of worthwhile ends such as protecting children rather than antipathy toward religion. Should such laws succeed, who know where the limit will be set on a variety of matters involving Church teachings and practices to ensure conformity with the attitudes and values public officials think churches and their clergy should adopt?

Let’s take a brief look at the development of the legal protections afforded the seal of confession in the United States in support of the position that the seal of confessions must remain unimpaired.

The first reported recognition of and protection afforded the seal of confession in the United States emerged in an 1813 case, People v. Phillips. In that dispute a unanimous New York Court of General Sessions upheld the priest-penitent privilege under the seal of confession based on state constitutional grounds. The court agreed that forcing the priest in this case to testify about what he heard in confession when he ordered a penitent to return the jewelry he stole as his penance would have violated both common law principles and religious liberty clause in the constitution of the state of New York.

On the other hand, even in conceding that it did not involve a sacramental experience, religious leaders and all interested in religious freedom should be mindful of the outcome in State of New Hampshire v Willis. Here, in 2013, the state’s highest court affirmed that because the remarks a criminal defendant made in a conversation with his Baptist pastor, admittedly not during confession, about his having been the aggressor in a sexual relationship with a minor, his words were subject to disclosure because they were not entitled to protection by religious privilege.

Returning to current developments, it is important to reiterate that the majority of states respect the seal of confession. Conversely, North Carolina, Oklahoma, Rhode Island, Texas and West Virginia all deny religious exemptions from their child abuse reporting laws. Further, while Connecticut’s statute identifying mandated reporters of child abuse includes “any member of the clergy,” it fails to address the status of its priest-penitent evidentiary privilege.

State legislative intents aside, mandatory reporting laws excluding confidential conversations between priests and penitents under the seal of confession may be subject to challenges in jurisdictions that have enacted statutes modeled after the federal Religious Freedom Restoration Act. These laws forbid governmental actions substantially burdening the sincerely held religious beliefs of religious bodies or individuals unless the can be achieved by the least restrictive means possible in pursuit of a compelling state interest. While preventing child abuse and prosecuting abusers certainly is a compelling governmental interest, the challenge is to devise a system that does not substantially burden the beliefs and sacramental practices of the Roman Catholic Church and its clergy by protecting religious freedom even as laws seek to protect vulnerable young people from sexual predators.

The seal of confession remain inviolable because it is the best interest of all that individuals have the religious freedom to speak openly, honestly, and frankly to a confessor without fear that their conversations might be disclosed to others. Just as their Australian prelates have made it clear that the seal of confession is “sacred,” regardless of the sin confessed, so, too, American bishops share this stance. For instance, in a pastoral letter to his flock on April 19, 2023, Bishop Thomas A. Daly of Spokane, Washington, emphasized that “I want to assure you that your shepherds, bishop and priests, are committed to keeping the seal of confession – even to the point of going to jail.” Daly wrote in response to the proposed state senate version of bill that, in making priests mandatory reporters of child abuse, would not only have eliminated an amendment intended to protected the sacrosanct nature of the seal of confession, but would also have made priests who refuse to disclose information they learned during confession subject to being jailed for unspecified lengths of time.

Hopefully, priests in the U.S. will not have to follow the path of their brethren who witnessed to the faith by sacrificing their lives rather than violate the seal of confession by revealing what they heard from penitents. Still, because recent proposed legislative actions raise yet another serious concern amid ongoing threats to religious freedom in the United States, one must hope that lawmakers will respect the integrity of the seal of confession by not attempting to force priests to violate their duties to not never disclose what they hear from penitents. If such bills challenging the sanctity of the seal of confession are enacted into law, religious freedom in the United States may be at grave risk of death by one of the proverbial thousand cuts.