Canon, civil law collide on seal of confession, says expert

(OSV News) -- Proposed legislation looking to repeal clergy-penitent protections in at least two states is in a head-on collision with the church's primary legal code, one expert told OSV News.

Montana and Washington are among the states seeking to compel clergy to disclose abuse revealed to them in the context of the sacrament of reconciliation or similar confidential pastoral settings in other faith traditions.

Earlier in January, Washington state Sen. Noel Frame introduced a third bill to mandate clergy to report abuse revealed under the seal of confession or in pastoral counseling. Two previous bills sponsored by state lawmakers failed; the latest would mandate clergy who receive information about abuse in confession to report it to authorities, but would allow them to abstain from testifying in court cases or criminal proceedings.

On Jan. 14, Montana state Sen. Mary Dunwell introduced SB 139, which seeks to strike an existing provision that does not require priests or other clergy to report abuse if the information was revealed in such settings. Currently, Montana recognizes that such confidentiality can be required by "canon law, church doctrine, or established church practice," although SB 139 bill would eliminate that consideration.

In a Jan. 22 email, Dunwell told OSV News she had advanced the bill "to protect children and save them from a potential lifetime of emotional and mental scars," adding, "This is about civil and criminal laws, not canon law. Absolution is still possible without secrecy."

Dunwell subsequently wrote in a Jan. 27 email to OSV News that she had revised the text of the bill after discussions with the Montana Catholic Conference and Bishop Austin A. Vetter of Helena, Montana. The amended text, which Dunwell sent to OSV News, states that "a member of the clergy or a priest is not required to make a report under this section if the communication is required to be confidential by canon law or church doctrine."

The Montana Catholic Conference confirmed the change to OSV News, adding that "the bishops are satisfied with the amendment" and "plan to support the amended bill."

Although the Montana bill was satisfactorily amended, legislative efforts to mandate abuse reporting by confessors are fundamentally at odds with the Catholic Church's understanding of the sacrament of reconciliation, said Father John Paul Kimes, associate professor of the practice at Notre Dame Law School and the Raymond of Peñafort Fellow in canon law at Notre Dame's de Nicola Center for Ethics and Culture.

Canon law holds that "the sacramental seal" of the confessional is "inviolable," and 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" (Canon 983.1).

Even when there is no danger of such revelation, canon law prohibits a confessor "completely from using knowledge acquired from confession to the detriment of the penitent" (Canon 984).

Moreover, canon law uses "extraordinarily strong" language regarding the seal, describing its violation as "nefas" -- a term that is "the worst possible thing you can call something in Latin," said Father Kimes. "It's horrible, despicable, unthinkable."

As a result, "at the end of the day, this is an unresolvable conflict between civil and canon law," Father Kimes told OSV News.

While civil law would assign the privilege to a party -- historically, the penitent who has been accused -- "in canon law, the seal (of confession) belongs to no one," neither the priest nor the penitent, said Father Kimes. "It belongs to the sacrament."

He noted the clash has a long history, with the first U.S. civil case in which the issue was treated, People v. Philips, dating back to 1813.

In that case, Father Anthony Kohlmann -- who had been subpoenaed by a grand jury -- refused to break the seal of the confessional by testifying against defendant Daniel Philips, who indicated he had spoken with the priest about receiving stolen goods.

New York City Mayor DeWitt Clinton, presiding over the court of general sessions, ruled that "it is essential to the free exercise of a religion that its ordinances should be administered -- that its ceremonies as well as its essentials should be protected."

Clinton stressed that compelling such revelations would violate constitutional guarantees of religious freedom, stating that "secrecy is of the essence of penance." Forcing priests to reveal disclosures from penitents was to in essence "declare that there shall be no penance," and if such measures were permitted, "this important branch of the Roman Catholic religion would be thus annihilated."

"The seal is there because it's part of the sacrament itself," said Father Kimes. "It is an essential element of the sacrament because it allows all of us, when we are repentant of sin, to come and seek forgiveness in a concrete fashion, in a way where we know that sin remains private, regardless of its gravity. That's for everybody."

At the same time, said Father Kimes, "whether we're confessing a lie or a murder," or "atrocious sins that are also crimes, like the sexual abuse of minors," each penitent must demonstrate repentance and a firm purpose of amendment.

"And if you don't demonstrate those things, then you can't receive absolution," he said.
Civil laws seeking to undermine the inviolability of the confessional seal "fundamentally misunderstand" the sacrament, said Father Kimes.

He noted that there has been "a long conversation in the literature," including canon law, moral law and sacramental theology "about what falls under the seal and what doesn't" -- and "there is a spectrum of opinions," he added.

In 2019, the Vatican's Apostolic Penitentiary issued a note on the importance of the internal forum and the inviolability of the sacramental seal.

The note affirmed that the "inviolable secrecy of Confession comes directly from the revealed divine right and is rooted in the very nature of the Sacrament, to the point of not admitting any exception in the ecclesial sphere, nor, least of all, in the civil one."

At the same time, said Father Kimes, there are some potential opportunities to exhort those who confess committed criminal acts to alert the authorities.

"There are plenty of instructions that have been given to confessors that say, 'Look, you can't condition penance on somebody revealing a crime in the civil forum,'" said Father Kimes. "But you can encourage them to. … I can't say, 'You have to go do this in order for me to absolve you,' but I can say, 'Wow, two necessary elements of confession are repentance and firm amendment not to sin again. … And bringing this to the civil authorities' attention would certainly go a long way toward demonstrating both of these.' So I can't require it, but the sacrament itself is set up to encourage those kinds of things, because of what we're looking for in the sacrament."