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Why risk so much for so little?

January 12, 2006

An LA Superior Court judge has ordered a priest to testify about whether he ever heard the confession(s) of an accused clergy child-abuser, saying that the priest-penitent privilege protects the content of confession, but not the fact of confession. It’s a narrow distinction that I cannot consider here; let’s just say there are plausible points to be made on both sides of that one. What I want to ask is something different, namely: why does the court think it needs to know whether Father A heard Deacon B’s confession in the first place?

Off the top of my head, here are six reasons why a civil court CAN’T (not shouldn’t, but CAN’T) draw any conclusions about a penitent’s conduct based on whether he went to confession, and about whether he even went to (what folks generally consider to be) confession simply because his priest asserts the “priest-penitent” privilege.

According to canon law (1983 CIC 983), the seal of confession applies:

1) Whether the sins are grave or trivial. “Bless me Father for I have sinned, I lifted $ 2 that was left as a tip in a restaurant” gets exactly the same seal of confession protection as would “I embezzled $ 50,000 from my brother’s business.” One can tell absolutely nothing about the magnitude of a sin based on a priest’s assertion of the privilege.

2) Whether sins are already public knowledge (even admitted publicly) or are secret. Even if a freely admitted, DNA-convicted, serial killer goes to confession the night before his execution, the priest can say no more about that confession than if someone whose sin never has been and never will be found out goes to confession. To the outside world, the priest’s stance must be the same for both cases.

3) Whether the sins are new or have already been confessed and absolved previously (even by a different priest). So-called “devotional confessions” which relate sins that are remote in time and already forgiven, qualify for the same seal protection as do sins recently committed never before confessed. One can’t tell, then, whether “old news” or “new sins” were discussed based on whether a confessor asserts the priest-penitent privilege.

4) Whether the “sins” are really even sins in the first place. If, say, someone concerned about the environment sincerely confesses riding an elevator instead of climbing the stairs, the priest should point out that using elevators is not a sin, but he is nevertheless bound by the seal never to mention that so-and-so rode the elevator. One cannot tell, then, whether what was confessed in the conversation was even a sin at all simply because the seal is invoked.

5) Whether the confession was completed. If confession is interrupted for any reason (emergency, illness, bad memory, lack of time, etc.), what was disclosed up to that point is still protected by the seal of confession. One can’t tell how much, if anything, was communicated simply because the privilege is invoked. Moreover, even if absolution is not given (again, many benign factors could account for that) a priest still must honor the seal of confession and invoke the privilege against testifying.

6) Whether the sins are “common” or “particular”. Here, a “common” sin describes an action that would be wrong for anyone to do (e.g., stealing, insulting one’s parents, etc.) while “particular” sin describes actions that are sinful only for certain persons (e.g., a cleric deliberately failing to say his daily prayers). Thus, depending on circumstances, a person might confess things that are sinful for him or her, but are clearly not sinful or even wrong for most other people. Either way, the priest is bound by the seal, and outsiders cannot deduce anything about what kind of sins a given person might want to confess based on his refusal to answer questions.

To be sure, not every conversation one ever has with a priest is necessarily privileged, and persons with information which they are free to share should do so when legitmately asked by a court. But if, as in this case, one can conclude so little, in fact virtually nothing, about a penitent in light of his confessor’s assertion of the “priest-penitent” privilege, why risk prejudicing the fact finders by asking such questions in the first place, and why chance provoking an unnecessary, and severe, Church-State conflict along the way?

PS: Al Kresta and I will talk about this today at 5:20 PM Eastern. Tune in!

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