The seal of confession is in the news again. From New Hampshire to California, state legislatures and trial court judges are pressuring Catholic priests to disclose information (most recently, about clergy sexual abuse) that they might have gained during a sacramental confession. While some elected representatives and trial lawyers (many of whom are not Catholic) are using solid constitutional arguments to resist these encroachments on religion, the debate is far from over.

We should pray that the right answer is found quickly. The consequences of getting policies wrong in the area of the “priest-penitent privilege” could be very serious.

The confidentiality of the confessional is not just one of the most important canonical rights enjoyed by the faithful. Its protection is one of the glories of Church history. Over the centuries, powerful forces have often tried to crack the secrets of the confessional, only to be stopped by priests who accepted suspicion, ridicule, prison and occasionally even a martyr’s death, rather than violate the trust shown by those making use of Christ’s Sacrament of Reconciliation.

Today, Canon 983 of the Code of Canon Law absolutely forbids a confessor from betraying a penitent in any way for any reason. In more concrete terms, the seal of confession prohibits a priest from disclosing the identity of the penitent and the sin or sins that he or she has confessed. Canon 1388 provides teeth for this rule when it imposes canonical penalties, up to and including excommunication, for the violation of the sacramental seal.

We might wonder why a civil state would want to protect from disclosure, even in its own courts, certain types of conversations such as those occurring between priests and penitents, doctors and patients, or attorneys and clients. Basically, the explanation for all three privileges is the same: Society is better off in the long run when people know they can approach clergy, physicians or lawyers without the fear that what they talk about might be freely shared with others.

Still, some lines have to be drawn. Let’s take a closer look at when the seal of confession applies according to canon law. Perhaps a better understanding of this topic will contribute toward developing and affirming sound civil policies in this important area.

The Extent of the Seal

The obligation to respect the seal of confession applies whether the sins confessed are grave (such as abortion, blasphemy, unchastity) or minor (such as being carelessly late for Mass or rude to strangers). It applies even if the sacrament was interrupted or not completed, as might happen if a penitent becomes ill or admits a sin but refuses to express sorrow for it.

When we say, though, that the seal of confession applies even if the sacrament is not conferred, we must be careful not to assume that every “confidential” conversation with a priest – even conversations about spiritual matters – is protected by the seal of confession. Other obligations of confidentiality might apply in such cases, but only those exchanges in which the penitent is clearly seeking sacramental reconciliation are protected by the seal of confession.

Having said that, we must nevertheless note that the protection of the seal extends to other cases as well. It applies, for example, even if the fact of the sin is publicly known from other sources. For example, if an individual has widely announced that he or she has committed some crime and later confesses that crime to a priest, the priest cannot confirm that the individual confessed the same crime.

The seal of confession also applies to sins that are “particular” to that penitent (such as a deacon failing to pray the Liturgy of the Hours) even if such acts or omission would not be sinful for the rest of us. And the obligation of the seal applies as well to what are sometimes called “devotional confessions”- that is, confessions in which previously confessed and absolved sins are mentioned again as an aid to deepening one’s sorrow for them.

It’s important to note that the obligation to preserve the secrecy of the confessional applies to those who happen to come into knowledge of confessional matters, say, by overhearing (deliberately or accidentally) another’s confession or by having served as an interpreter for confession.

It’s true that there’s a canonical distinction in the type of obligation to secrecy that such persons bear. But there’s no doubt that those who repeat such confessional information as they might have acquired are subject to severe canonical penalties for disclosing what they have heard.

Some people are reluctant to go to confession for fear that, while the priest would never disclose their sins, he might use the information against them in other ways – say, by shunning the individual or by asking for his or her resignation from a parish position.

Church law, however, has already anticipated this problem and has taken steps to prevent it. Canon 984 expressly forbids a confessor from using any information gained from confession against the penitent even if all danger of disclosure is excluded.

Release from Obligation?

One current thought in canonical opinion would allow a penitent to release a confessor from the obligation of the seal under certain conditions. After all, so runs the argument, the seal of confession protects the penitent from the fear of being exposed, so if a penitent wishes to disclose his or her confession through the confessor, canon law should allow for that.

In my opinion, though, this argument overlooks the fact that the seal of confession protects penitents in ways they might not have even thought about; it protects the priests who must minister within it; and it defends the sacrament itself.

Think about it: If the seal of confession is absolutely unwaivable, penitents would be protected from being pressured by others to release their confessors in certain cases, priests would be protected from having to decipher vague or unclear purported releases from penitents, and all the faithful would be protected from having to wonder whether what certainly looks like a violation of the seal might have been something actually requested or at least agreed to by a penitent at some time or another.

Finally, even though there’s a danger of introducing a slippery slope here, most who write on canon law agree that a confessor may answer a legitimate question as to whether he is in fact asserting the seal of confession in regard to inquiries about a specific person. After all, a defendant on the stand is not permitted simply to refuse to answer legitimate questions; he or she must base the refusal on some sort of recognized privilege such as the Fifth Amendment.

Similarly, a priest who does not wish to disclose information he might have gained in confession must be able to confirm that he has concluded that the seal of confession prohibits him from answering a question.

Moreover, when we recall how little (indeed, how almost nothing) can be guessed about what kinds of things might have been discussed under the seal, there seems little danger of “betraying a penitent” merely by a priest’s stating that the answer to such-and-such a question is precluded by the seal of confession.

The current encroachments on the seal of confession are cause for concern. Yet we must always remember that, serving, as it does, one of the seven sacraments Christ gave His Church, the seal of confession shares in the protection that the Lord showers on His Church. Such protection shouldn’t cause us to slacken in our efforts to protect the priest-penitent privilege under civil law. But it does help us remember that God will have the final word.