WASHINGTON — For centuries, the Catholic Church has maintained
that what a penitent says to a priest in the confessional is strictly
confidential, but in 2019 that rite continues to be challenged by governments.
Church scholars assert the concept of the seal of confession was
given to the apostles by Jesus, eventually morphing into the sacrament of
penance, providing the faithful with an opportunity to confess their sins and
to be reconciled with God.
The soul-cleansing, sacred practice is private, confidential and
repeatable.
Governmental leaders have challenged the priest-penitent
privilege of the seal of confession since at least the 14th century, prompting
priests to sacrifice their freedom and sometimes their lives protecting that
confidentiality.
In the wake of renewed attention on the clergy child sexual abuse
scandals, 21st-century lawmakers in Australia, the United Kingdom, Ireland,
Chile and the U.S. have introduced measures that would compel priests to report
to civil authorities information related to child abuse and neglect learned in
the confessional.
"There are many reasons why we are seeing challenges to the
seal of confession today," said Father Ronald T. Kunkel, theology
professor at Mundelein Seminary at the University of St. Mary of the Lake in
Illinois, near Chicago.
The church has suffered "self-inflicted wounds" to its
reputation and credibility from the clergy sex abuse crisis, making the seal of
confession vulnerable to governmental intrusion, Father Kunkel said in an April
interview.
"There have been terrible sins and crimes that have been
committed, including by members of the hierarchy," he said. "But, I
think in many cases this is being used as an excuse in order to further
marginalize the church in our society today."
That reaction has been echoed by countless theologians, canon
lawyers, priests and penitents throughout the U.S., particularly in California,
where a bill making its way through the state Legislature attempts to amend its
mandatory reporting laws to require priests to provide civil authorities with
information about child abuse or neglect confessed by priests or co-workers
during the sacrament of penance.
Critics of that legislation, S.B. 360, call it governmental
overreach that clearly violates religious freedoms enjoyed in the U.S., as well
as its tradition of separation of church and state. Some also fear that
authorities could send someone in to confess to abuse in order to prosecute the
priest for failing to report it.
Supporters of the California bill say it closes a loophole in a
law that provides cover for pedophile priests — and other criminals — who
receive absolution from the sin of child sexual abuse without being held
accountable by society. They believe it emboldens such penitents to continue to
victimize others.
Laws making it an offense for a priest's failure to report the
confessions of child sex abuse have already been passed in three Australian
states and similar acts are being considered in Chile.
"I think it's worth noting that the mandatory reporting
statutes, the clergy-penitent privilege, and the seal of confession, these
three doctrines if you will, are all in tension with each other," said
Mary Graw Leary, a professor of law at The Catholic University of America in
Washington and a former prosecutor specializing in the abuse and exploitation
of children and women. "They all serve very positive social goods. But,
these kinds of circumstances bring them in tension with each other and it's a
very difficult problem to solve."
Pope Francis' new universal Catholic law "Vos estis lux mundi" ("You are the light of
the world") — released in early May — says that every priest or member of
a religious order who knows of a case of clerical sexual abuse of a minor or
who has good reason to believe that such abuse took place must report that
abuse to the bishop of the place where the abuse occurred; if the accused
abuser is a bishop, the report must be made to the metropolitan archbishop or
the Vatican nuncio.
Bishop Juan Ignacio Arrieta, secretary of the Pontifical Council
for Legislative Texts, said that the Catholic Church also obliges all of its
members to act in accordance with local civil law on mandatory reporting.
The seal of confession, however, remains inviolable and is not
affected by the new norms.
The Australian Royal Commission into Institutional Responses to
Child Abuse issued a report in 2017 recommending the Catholic Church change the
Code of Canon Law to allow priests to break the seal of confession when a
penitent confesses to the sexual abuse of minors.
That recommendation also has been championed by Father James E.
Connell of the Archdiocese of Milwaukee, a canon lawyer, who says protecting
the innocent should be the church's first priority.
However, Father Connell seems to be in the minority of Catholic
clergy and canon lawyers advocating for such a change in church law.
"There is no indication the church will change canon law
regarding the seal of confession" and it shouldn't, said Dominican Father
Pius Pietrzyk, a canon and civil lawyer who teaches at St. Patrick's Seminary
and University in Menlo Park, California.
In the sacrament of reconciliation, the penitent is communicating
with God himself and the priest is simply acting as an intermediary, Father
Pietrzyk said in a May interview.
"The priest may never act as if that information is
his," he said. "It is a terrible affront to God and it's a terrible
affront to the dignity of the penitent."
There is no evidence that laws requiring priests to report child
sexual abuse heard in the confessional will actually protect children, said
Msgr. Stephen J. Rossetti, a psychologist and expert on the spiritual and
psychological health of priests, who is a theology professor at The Catholic
University of America.
It would be rare occurrence for a pedophile to confess the sin of
child sexual abuse, Msgr. Rossetti said in an April interview.
"They are in such denial that what they are doing is child
abuse, they just don't confess that," he said. "I have never heard it
in the confessional. I never will. None of the priests I know have heard
it."
Furthermore, if Catholics believe there is even a remote
possibility that a priest will be obligated to report to authorities what they
say during penance, they will lose faith in the sacrament of reconciliation and
will be unlikely to incriminate themselves, said Auxiliary Bishop Peter L.
Smith of Portland, Ore., who also is a canon lawyer.
Because the Code of Canon Law states the penalty for a priest who
violates the seal of confession is automatic excommunication — which can only be
lifted by the pope himself — most members of the clergy would go to jail rather
than comply with these laws, said Father Thomas V. Berg, professor of moral
theology at St. Joseph's Seminary in Yonkers, N. Y.
There are currently seven U.S. states that have laws requiring
priests to report criminal information gained in the confessional, which are
New Hampshire, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas and
West Virginia.
There are no reports that priests in those states have reported
to civil authorities information learned in the confessional and to date no
members of the clergy have been charged with failing to do so. It's unclear if
these statutes would survive a legal battle in the U.S. courts or be ruled
unconstitutional, Graw Leary said.
It's also uncertain if these laws will have any impact on the
safety of children, she said.
"Right now, with the statutes on the books, it may have no
effect whatsoever because it may just not become a factual circumstance that
will arise," Graw Leary said. "However, if a priest were to be forced
to disclose (information gained in the confessional) or were to be legally
punished for failing to comply with the mandatory reporting statue, that could
produce some kind of precedence."