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confessional
privilege and secrecy
This page looks at confessional privilege, aka priest-penitent
privilege, and broader questions of evidentiary privilege
for religious organisations.
It covers -
introduction
As preceding pages have noted, religious belief and practice
enjoy a special status in Australian (and most overseas)
statute law and common law.
Most western jurisdictions privilege religious organisations
and their clergy, particularly when fulfilling what might
be usually regarded as core religious functions. That
privilege usually involves substantial tax concessions.
It often involves grants or other funding to parochial
schools, health services institutions, aged care facilities
and buildings that are considered to be culturally (or
merely politically) significant.
It may involve a special status for information provided
to clergy on a particular basis - typically in a formal
confessional mode - and information provided by clergy
to the faithful. That evidentiary privilege - analogous
to parliamentary privilege - may even extend to documents
created by religious institutions. It is thus not necessarily
restricted to a oracular confession made directly by a
penitent to a confessor.
Evidentiary privilege is not absolute and is often uneasy,
with -
- conflicts
between legal systems (for example clashes between secular
law and canon law over disclosure of information provided
on a confessional basis)
-
moves to reduce clerical privilege in the UK, US and
Eire after incidents of sexual abuse involving clergy
of several churches
- criticisms
that common or statute law is strongly biased towards
particular faiths (and even to denominations within
a faith)
- arguments
that in the 'war on terror' there should be greater
international recognition of religious faith as a shield
for disclosure of information
- courts
generally restricting the privilege to clergy, a potential
inequity for denominations that do not ordain priests,
parsons or potentates.
confessional secrecy
The privileged status of information disclosed to religious
figures in the expectation that it will not be provided
to civil authorities or the general public lies at the
intersection of secrecy, evidence and privacy law.
Pope Innocent III commented in 1215 that "whosoever
reveals a sin announced at the tribunal of penitence ...
must be stripped of his priestly office and committed
to life in a monastery of strict observance", with
confessors being willing to suffer martyrdom (on the model
of St John Nepomucene) rather than "betray a penitent
by word or in any other manner or for any reason".
Roman Catholic canon law provided that
The sacramental seal is inviolable. Accordingly, it
is absolutely wrong for a confessor in any way to betray
the penitent, for any reason whatsoever, whether by
word or in any other fashion (Canon 983)
A confessor who directly violates the sacramental seal,
incurs a latae sententiae excommunication reserved
to the Apostolic See; he who does so only indirectly
is to be punished according to the gravity of the offence.
(1388)
In
1813 a New York state court in People v. Phillips,
the leading case prior to adoption of a bewildering variety
of state enactments, commented 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. 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
As
noted above, contemporary responses to such restrictions
have varied, with secularisation of Western societies
being reflected in a weakening of civil protections for
confessional privilege and a preparedness - often awkward
- to override clerical codes.
Typically, claims of privileged communication involve
four tests -
1)
one participant in the relationship is acting in a professional
capacity and has maintained a professional identity
as a member of clergy
2) the person confessing expects the communication to
remain confidential
3) neither participant in the relationship has waived
the privilege by allowing the content of the communication
to be discussed with others
4) legislation does not require testimony.
In
Australia (as in the UK and New Zealand but not in Eire)
there is no strongly recognised privilege for priests
or penitents in common law. Statute law provides protection
in particular circumstances. The Commonwealth Evidence
Act and New South Wales Evidence Act provide that a member
of the clergy may refuse to divulge a religious confession
to a federal, ACT or NSW court. As discussed below, that
is not the case in other Australian jurisdictions.
Protection of varying comprehensiveness is found in other
jurisdictions. In France for example the privilege was
assimilated into the Code Penal by the Supreme Court of
Appeal in the case of Lambel-Maye. Protection in Germany
(under s 383(1) of the Zivilprozessordnung) and Austria
dates from 1879 and 1873 respectively. In the US protection
reflects variation in statutes regarding identification
of what communications are privileged, who is recognised
as a member of clergy and who holds the privilege (priest,
penitent or both).
Questions of medical and legal privilege are explored
here and here
elsewhere on this site.
studies
An overview of the Australian regime is provided in Renae
Mabey's 2006 article (PDF)
The Priest-Penitent Privilege in Australia and its
Consequences. It is complemented by Michael Perella's
1997 article
Should Western Australia Adopt An Evidentiary Privilege
Protecting Communications Given In Religious Confessions?,
the Law Reform Commission of Western Australia's 1993
Professional Privilege for Confidential Communications
report and the Queensland Law Reform Commission's 1991
Protection of Statements to Religiously Ordained Officials
report.
For introductions to Australian evidence law see Odgers'
Uniform Evidence Law (Pyrmont: LBC 6 ed 2004)
and McNicol's Law of Privilege (Sydney: Law Book
Co 1992).
The New Zealand regime is considered in Priscilla Agius's
2002 dissertation The priest-penitent privilege.
A US perspective is provided by Norman Abrams' paper
Addressing The Tension Between The Clergy-Communicant
Privilege & The Duty To Report Child Abuse In State
Statutes, Marci Hamilton's bracing God vs. The
Gavel: Religion & the Rule of Law (New York:
Cambridge Uni Press 2005) and Robert Araujo's 2000 'International
Tribunals and Rules of Evidence: The Case for Respecting
and Preserving the "Priest-Penitent" Privilege
Under International Law' in 15 American University
International Law Review.
More specialist articles for the US include Chad Horner's
concise 1997 'Beyond the Confines of the Confessional:
The Priest-Penitent Privilege in a Diverse Society' in
45 Drake Law Review, Walter Walsh's 2005 'The Priest-Penitent
Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence'
in Indiana Law Journal (PDF),
J Michael Keel's 1997 'Law and Religion Collide Again:
The Priest-Penitent Privilege in Child Abuse Reporting
Cases' in 28 Cumberland Law Review, Jeffrey Miller's
1998 'Silence Is Golden: Clergy Confidence and the Interaction
between Statutes and Case Law' in 22 American Journal
of Trial Advocacy 31 (1998), Anthony Merlino's 2002
'Tightening the seal: Protecting the Catholic confessional
from unprotective priest-penitent privileges' in 32 Seton
Hall Law Review, Nicholas Cafardi's 1994 'Discovering
the secret archives: evidentiary privileges for church
records' in 95 Journal of Law & Religion,
Michael Cassidy's 3003 'Sharing sacred secrets: Is it
(past) time for a dangerous person exception to the clergy-penitent
privilege?' in 44 William & Mary Law Review,
Ezra Griffith & John Young's 2004 'Clergy Counselors
and Confidentiality: A Case for Scrutiny' in 32 Journal
of the American Academy of Psychiatry & the Law
(PDF)
and Michael Mazza's 1998 'Should Clergy Hold the Priest-Penitent
Privilege?' in 82 Marquette Law Review.
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