Confession Seal Comes under Attack in Several State Legislatures
By Thomas A. Szyszkiewicz
National Catholic Register
February 23 - March 1, 2003
LEXINGTON, Ky. - The seal of confession is under attack in Kentucky.
The state legislature is considering two bills. One, sponsored by Democratic state Rep. Susan Westron, would completely eliminate the priest-penitent privilege. Another, sponsored by state Sen. R.J. Palmer, also a Democrat, would leave the priest-penitent privilege intact except in the case of priest-to-priest confession. In that case, Palmer's bill would require the confessor to report the penitent to government authorities.
There are also two mandated-reporter bills being debated that would put clergy on the list of reporters for the state along with the other usual occupations such as doctors and teachers.
However, said Father Patrick Delahanty of the Kentucky Catholic Conference, both of these bills would have priests violate the seal of confession.
This kind of legislation is being lobbied for by Jeffrey Anderson, a Minnesota-based lawyer who has been suing churches on sexual-abuse issues for 22 years, as well as the Survivors Network of those Abused by Priests and Link-Up, another victims' advocacy group.
Anderson has represented hundreds clients who said they were victimized by clergy members. In March, he sued the Catholic Church under the federal Racketeering Influenced and Corrupt Organizations Act. He successfully pushed to put a moratorium on statute of limitations laws in California.
The Associated Press reported in May that Anderson had estimated he'd won $60 million in settlements from Catholic dioceses.
In these lawsuits, lawyers typically keep 30% or more of the settlement, so Anderson said the priest-penitent privilege has been "used as a shield to protect" perpetrators. He called it "a loophole that has to be closed."
Susan Archibald, president of Link-Up, said she is ambivalent on this kind of legislation. "Having the seal is an important thing" because of the need for people to clear their consciences, she said. But, "there's such widespread abuse going on and it's not been addressed. With one priest going to another for confession, it gets hidden."
She alleges that confession is a "convenient" way to remove the burden of conscience from the perpetrator and one that would not be allowed "among people of other professions."
But Father John Beal, professor of canon law at Catholic University of America in Washington, D.C., said he does not expect this kind of law to pass. "It would be thrown out on First Amendment grounds," he said. "It is a clear violation of the free exercise clause," in which the Constitution protects the free exercise of religion.
He said it is ironic the seal of confession is being attacked when "you don't find legislators asking that the attorney-client privilege be lifted," and the priest-penitent privilege is definitely older, he said.
He also said he doesn't think it would help the situation at all because of practical issues. "I've been hearing confessions for 29 years," he said, "and this has not turned up once that I can recall."
He added that there are problems of the penitent's identity - "if they avail themselves of anonymity, there's not a lot a priest can report" - and if an alleged victim reports it in confession and even if the priest is reasonably sure of the penitent's identity, "what you've got at best is hearsay."
The secrecy of confession can be traced back to the fifth century, when Pope Leo the Great warned confessors not to divulge penitents' sins, according to William Jurgens' 1979 book The Faith of the Early Fathers.
The Fourth Lateran Council of 1215 codified the practice and provided that any priest who broke the seal of confession would lose his priestly office "and be sent into the confinement of a monastery to do perpetual penance."
The current penalty for priests who violate the seal of confession is automatic excommunication (Canon 1388 in the Code of Canon Law), which can be lifted only by the Pope.
Over the centuries, some priests have backed up the teaching with blood.
Tradition has it that St. John Nepomucene was burned with a torch, trussed up and thrown into the River Moldau in 1393 by the Emperor Wenceslaus IV of Bohemia at least in part because he refused to reveal the queen's confessions.
But many governments have sought to protect confessors from having to testify in court about what penitents tell them. Scholars have found some evidence that Anglo-Saxon and Norman kings respected the secrecy of confession in England about 1,000 years ago, as Michael Mazza notes in a 1998 article in the Marquette Law Review.
The Catechism of the Catholic Church teaches: "[T]he 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" (No. 1467).
Canon law is very strict on the matter. "The sacramental seal is inviolable. Accordingly, it is absolutely wrong for a confessor in any way to betray the penitent, for any reason whatsoever, whether by word or in any other fashion," says Canon 983. "An interpreter, if there is one, is also obliged to observe this secret, as are all others who in any way whatever have come to a knowledge of sins from a confession.
Says Canon 984: "The confessor is wholly forbidden to use knowledge acquired in confession to the detriment of the penitent, even when all danger of disclosure is excluded. A person who is in authority may not in any way, for the purpose of external governance, use knowledge about sins which has at any time come to him from the hearing of confession."
The state of Connecticut tried the legislation avenue as well, according to Dr. Marie Hilliard, director of the Connecticut Catholic Conference. When a pedophilia bill was being debated, a state representative brought an amendment to the floor after midnight that would suspend the priest-penitent privilege, she said. Because of the time it was brought forward and because there was no public debate on the matter, the House passed the amendment 144-2.
Hilliard got home at 4 a.m. that Saturday. During the day, she sent faxes to parishes throughout the state so priests could let their people know about it at Saturday evening and Sunday Masses. That quick action got the legislature's attention.
So many people called, Hilliard said, that one legislator called her and said, "I got the message, Marie. You can tell them to stop calling."
The Senate killed the amendment.
Organizations such as the Catholic League hope Catholics nationwide will be as vigilant.
"If it had been established that in Kentucky, and elsewhere, Catholic priests had learned of cases of child sexual molestation in the confessional and did not report them, then at least the motivation behind the legislation would make sense," said Catholic League president William Donohue in a statement. "But no one is making this charge."
He said the cases of child sexual abuse that have come to light have had nothing to do with information learned in the confessional.
"Now when this reality is acknowledged, and when it is coupled with the fact that the attorney-client privilege is to remain intact, it gives off a foul stench," he said. "Catholics and Protestants have pledged to fight this bill and we look forward to their success."
Thomas Szyszkiewicz writes
from Altura, Minnesota.
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