Priest–penitent privilege

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The priest–penitent privilege, also known as the clergy privilege, clergy–penitent privilege, confessional privilege, and ecclesiastical privilege, is an application of the principle of privileged communication that protects the contents of communications between a member of the clergy and a penitent, who shares information in confidence. It stems from the principle of confessional privilege. It is a distinct concept from that of confidentiality (see non-disclosure agreement).

Republic of Ireland

The privilege was recognised under the common law of the Republic of Ireland as the privilege of the priest in the case of Cook v. Carroll [1945] IR 515.^[1] In 2011, in the wake of several sex abuse scandals, the Fine Gael–Labour government announced plans to criminalise failure to report an allegation of child abuse, even if made during confession.^[2] Seán Brady, the Catholic primate of all Ireland, condemned this as compromising the seal of the confessional.^[2]

United States of America

Main article: Confessional privilege (United States)

The First Amendment is largely cited as the jurisprudential basis. The earliest and most influential case acknowledging the priest–penitent privilege was People v. Phillips, where the Court of General Sessions of the City of New York refused to compel a priest to testify or face criminal punishment. The Court opined:

"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. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance..."

A few years after Phillips was decided, People v. Smith distinguished the case on the grounds that the defendant had approached the minister as a "friend or adviser," not in his capacity as a professional or spiritual advisor. As with most privileges, a debate still exists about the circumstances under which the priest-penitent privilege applies. The capacity in which the clergyman is acting at the time of the communication is relevant in many jurisdictions.

In twenty-five states, the clergyman-communicant statutory privilege does not clearly indicate who holds the privilege. In seventeen states, the penitent's right to hold the privilege is clearly stated. In only six states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege.

United Kingdom

Main article: Priest–penitent privilege in the UK

See also: Priest–penitent privilege in England from the Reformation to the nineteenth century and Public Interest Immunity

As the only professional privilege granted in English law is for the purposes of obtaining legal advice from professional advisers, there is no priest-penitent privilege.

Canada

Canadian law descends from British common law, and as such the status of priest–penitent privilege is not well defined in national jurisprudence. R. v. Gruenke from 1991 is the leading case regarding this privilege, and it establishes that there is a test, proposed by John Henry Wigmore that might be employed to determine whether a specific communication is privileged or not.

In October 1999, it was reported that the Canadian government had opposed a plan to recognize the value of priest–penitient privilege within the bounds of international law.^[3]

Poland

Article 178 of Polish criminal code explicitly forbids calling a clergyman as a witness in order to disclose information he obtained during confession^[4]. Article 261 of Polish civil code allows clergymen to abstain from testifying informations he obtained during confession^[5].

Justification of the principle

McNicol^[6] gives three arguments in favour of the privilege:

• Freedom of religion
• The ethical duty of ministers of religion to keep confessions confidential
• The practical fact that ministers of religion will inevitably be ruled by the conscience and defy the courts, even at the cost of their own liberty.

Bentham's views

Jeremy Bentham, writing in the early years of the nineteenth century, devoted a whole chapter to serious, considered argument that Roman Catholic confession should be exempted from disclosure in judicial proceedings, even in Protestant countries, entitled: Exclusion of the Evidence of a Catholic Priest, respecting the confessions entrusted to him, proper.^[7][8] Remarkably, Bentham was an opponent of professional privilege for the giving of legal advice. He noted:

Among the cases in which the exclusion of evidence presents itself as expedient, the case of Catholic confession possesses a special claim to notice. In a political state, in which this most extensively adopted modification of the Christian religion is established upon a footing either of equality or preference, the necessity of the exclusion demanded will probably appear too imperious to admit of dispute. In taking a view of the reasons which plead in favour of it, let us therefore suppose the scene to lie in a country in which the Catholic religion is barely tolerated: in which the wish would be to see the number of its votaries decline, but without being accompanied with any intention to aim at its suppression by coercive methods. Any reasons which plead in favour of the exclusion in this case will, a fortiori, serve to justify the maintenance of it, in a country in which this religion is predominant or established.

He refers the reasons in favour of the exclusion to two heads:

• evidence (the aggregate mass of evidence) not lessened
• "vexation", "preponderant vexation".

Under the first heading he says that the effect of non-exclusion would be the decrease in the practice of confession, he said:

The advantage gained by the coercion gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. ... The advantages of a temporal nature, which, in the countries in which this religious practice is in use, flow from it at present, would in a great degree be lost: the loss of them would be as extensive as the good effects of the coercion in the character of an aid to justice. To form any comparative estimate of the bad and good effects flowing from this institution, belongs not, even in a point of view purely temporal, to the design of this work. The basis of the inquiry is that this institution is an essential feature of the Catholic religion, and that the Catholic religion is not to be suppressed by force. If in some shapes the revelation of testimony thus obtained would be of use to justice, there are others in which the disclosures thus made are actually of use to justice, under the assurance of their never reaching the ears of the judge. Repentance, and consequent abstinence from future misdeeds of the like nature; repentance, followed even by satisfaction in some shape or other, satisfaction more or less adequate for the past: such are the wellknown consequences of the institution: though in a proportion which, besides being everywhere unascertainable, will in every country and in every age be variable, according to the degree and quality of the influence exercised over the people by the religious sanction in that form, and the complexion of the moral part of their character in other respects.

The whole chapter is exclusively limited to the claim for protection for the Catholic practice of confession.^[9]

References

1. ^ McNicol (1992) p.338, n.88.
2. ^ ^{a b} "Shatter insists mandatory reporting will apply to priests despite Cardinal’s comments". TheJournal.ie. 29 August 2011. http://www.thejournal.ie/shatter-insists-mandatory-reporting-will-apply-to-priests-despite-cardinals-comments-212267-Aug2011/. 
3. ^ Canada attacks priest-penitent rights
4. ^ Polish Criminal Code (in Polish)
5. ^ Polish Civil Code (in Polish)
6. ^ McNicol (1992), p. 328-331.
7. ^ Rationale of Judicial Evidence, in Bowring, Works of Jeremy Bentham, VII, Bk.IX, Pt.II, Ch.VI section 5, pp366-368
8. ^ Catholic Encyclopaedia (1913) "Seal of the Confessional"
9. ^ See also, "Evidence that ought not to be admitted - Disclosure of Catholic Confession", Introductory View of the Rationale of Evidence, in Bowring, Works of Jeremy Bentham, VI, section 5, p. 98-99.

Bibliography

•  This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed (1913). Catholic Encyclopedia. Robert Appleton Company. 
• Doyle, D. J. (1984). "Religious freedom and Canadian church privileges". Journal of Church and State 26: 293. 
• McNicol, S. B. (1992). Law of Privilege. Sydney: Law Book Co. Ltd. ISBN 0-455-21149-3. , Ch.5

See also

• Privilege (evidence)
• Duty of confidentiality
• Admissible evidence

External links

• Privileged and Confidential Communications by Richard R. Hammar