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confessional
privilege and secrecy
This page looks at confessional privilege.
It covers -
introduction
As preceding pages have noted, most western jurisdictions
privilege religious organisations and their clergy, particularly
when fulfilling what might be usually regarded as core
religious functions.
That 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) and
moves to reduce clerical privilege in the UK, US and Eire
after incidents of sexual abuse involving clergy of several
churches.
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
boundaries of secrecy and privacy.
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)
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 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. That is not the case in other Australian
jurisdictions.
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 and Marci Hamilton's bracing God vs.
The Gavel: Religion & the Rule of Law (New York:
Cambridge Uni Press 2005)
Questions of medical privilege are explored elsewhere
on this site.
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