The Inviolable Seal of Confession?

By Jennifer Haselberger
Canonical Consultation
January 20, 2015

http://canonicalconsultation.com/1/post/2015/01/the-inviolable-seal-of-confession.html

Today, the United States Supreme Court denied the petition for certiorari in the Roman Catholic Church of the Diocese of Baton Rouge v. Mayeux. This means that our nation's highest court will not consider the issue of whether the courts can determine what constitutes a 'confession per se' or whether such courts must 'respect the church's own view that such communications are confessional and absolutely protected from disclosure by the priest on penalty of automatic excommunication'. For the full summary of the issue, please see the SCOTUSblog.

This question is only one aspect of an otherwise highly contentious case which touches on the very nature of the sacramental seal (canon 983, 1). Canon law holds that the seal of confession is inviolable, and imposes 'severe' punishment upon a priest who directly or indirectly reveals the privileged communication. As such, the Diocese of Baton Rouge is arguing that a priest cannot be compelled to testify about the contents of a confession.

In general, I think Catholics support this understanding of the nature of the sacramental seal. However, what makes this case interesting is that the privilege is being claimed, by the priest and the diocese, not for the benefit of the penitent but for the benefit of said priest and diocese, who are being sued for negligence. For, it is alleged that a minor penitent, Rebecca Mayeux, confessed to her priest, Father George Bayhi, that a fellow parishioner, an adult, had molested her. According to nola.com, the molestation was alleged to have occurred in 2008, when both Rebecca and her alleged abuser were members of Our Lady of the Assumption Catholic Church in Clinton. The Mayeux family alleges that on three separate dates in July 2008, Rebecca told Father Bayhi that the adult parishioner had inappropriately touched her, kissed her and told her "he wanted to make love to her." Bayhi did not report the abuse to civil authorities or take other measures to prevent further abuse from occurring because, he argues, the communications occurred during the Sacrament of Reconciliation.

Generally, priests are exempt from mandatory reporting laws when the information is received in the act of sacramental confession. What makes this case interesting is that the Louisiana Supreme Court ruled in May that priests should be subject to mandatory reporting laws if the person who makes the confession waives confidentiality. In other word, the Louisiana Supreme Court found that confidentially in such contexts is intended to protect the person who made the confessions, not the person who receives them.

Arguments similar to those of the Diocese of Baton Rouge have also been advanced by the Archdiocese of Saint Paul and Minneapolis regarding the contents of the communications made to Father John Paul Erickson about the abuse committed by Father Curtis Wehmeyer. A lawsuit has also been filed in that matter, but with the Archdiocese petitioning for bankruptcy protection that case will not go to trial.

It is not my intention to use this post to debate the inviolability of the sacramental seal, or to take a position on the alleged abuse or negligence. However, I do want to take the opportunity to present two points of canonical minutia about the sacrament of reconciliation that have troubled me for some time, and which I think should inform our thinking on these issues.

First, it is a little known fact that from the time of the promulgation of the 1917 Pio-Benedictine Code of Canon Law until its abrogation by the 1983 Code of Canon Law, penitents were at times required to divulge certain facts of their confession. Referring to the crime of solicitation (soliciting sexual activity with a penitent in the context of confession), the 1917 Code imposed an automatic excommunication (the same penalty that is threatened for the priest in the Baton Rouge case) on a penitent who failed to divulge the fact of the solicitation and the name of the priest-confessor within one month of the solicitation occurring. Furthermore, the Pio-Benedictine Code mandated that a person who incurred an excommunication for failing to report sacramental solicitation was not be absolved until the required report had been made (1917, canon 2368, 2).

In the long list of unworkable canonical norms and laws, this one has always seemed to take the cake. First, it requires someone who has been solicited to report that fact to a religious authority, an extremely unlikely event. Second, it presumes that penitents were generally informed of this requirement (even more unlikely). However, in acknowledgment of the inviolability of the seal, priests accused of solicitation were and are unable to respond fully to accusations if in doing so they would reveal or cause to be revealed the nature of the sin that had brought the victim to the confessional. This would seemingly support the claims being made by the Diocese of Baton Rouge.

The second bit of minutia has to do with the actual penalty applied in cases involving the direct or indirect violation of the seal, and the frequency with which the seal is violated. Obviously this can take various forms with different levels of gravity both for the penitent and priest. For instance, it is not unheard of for a priest to forget to shut off his microphone prior to hearing confessions after Mass, or for civil authorities to attempt to record confessions that occur in a prison setting (a violation of secrecy rather than the seal, which binds only priests).

Most priests, in my experience, will allow themselves some latitude in cases where a penitent has asked them to disclose the information, especially if the disclosure is to aid in something beneficial for the penitent, such as the process for a declaration of nullity of marriage or progress in secular counseling. Although priests might disagree among themselves about the appropriateness of this, I have never heard of anyone being reported to the Congregation for the Doctrine of the Faith as a result (since the promulgation of the motu proprio Sacramentorum Sanctitatis Tutela, both direct and indirect violations of the sacramental seal, as well as the recording of confessions, are crimes reserved to the CDF). But, I have known priests to be reported to the CDF for violations of the seal without the penitent's consent, and in cases where the divulged information caused harm to the penitent. In my experience, the Congregation's response to such matters is generally underwhelming. When a priest of the Archdiocese of Saint Paul and Minneapolis committed such an offence, the ordinary was instructed to warn and rebuke the priest (canon 1339), which didn't really seem to bother the priest much at all.

These facts offer less support for the position advocated by the Diocese of Baton Rouge. For, as much as I like to hold to our romantic Catholic ideals of priests being tortured and burned at the stake rather than violating the sacramental seal, my practical experience leads me to believe that many priests faced with the dilemma of Father Bayhi would weigh the pros and cons of such a disclosure and then pick up the phone and call the necessary child protection agency, or speak with the parents. I think those same priests would consider any future ecclesiastical rebuke to be a fair price to pay for keeping one member of their flock safe from sexual abuse, and another safe from the crime of committing it. Then again, I don't think it has ever been a question of either/or. Almost every priest has either been instructed on ways to bring internal forum communications into the external forum, or knows someone he could ask if he needed to figure out how to do so.

So maybe this case isn't really about the sacramental seal at all.