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Monday, July 25, 2011

Will Ireland compel Catholic priests to reveal what they hear in Confession?

The Catholic Herald is reporting that the Irish government is seeking to compel Catholic priests to break the seal of confession.  The debate will sound familiar to all American lawyers familiar with our Free Exercise and religious-exemptions cases and arguments:

 . . . Irish Children’s Minister Frances Fitzgerald said: “The point is, if there is a law in the land, it has to be followed by everybody. There are no exceptions, there are no exemptions.”

Fr PJ Madden, spokesman for the Association of Catholic Priests, insisted that the sacramental seal of confession is “above and beyond all else” and should not be broken even if a penitent confesses to a crime. . . .

I doubt that Minister Fitzgerald believes, as a general matter, that "if there is a law in the land, it has to be followed by everybody", or would want to live in a community where this was true.  In any event, this might be a good occasion to take advantage (?) of the oppressive heat and watch the old Montgomery Clift film, I Confess.

Posted by Rick Garnett on July 25, 2011 at 06:50 PM in Religion, Rick Garnett | Permalink


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Anon, that does not follow. Criminals are not perfectly rational beings, and in fact many do confess (often even wrongly) directly to police. There's no reason to think that they wouldn't confess more often to priests.

Rick, you assume too much. Being legally compelled to do something does not necessarily mean one is jailed for not doing it.

I also don't see what the possible civil disobedience of priests has to do with anything. If it's a just law, they ought to be punished for breaking it; if it's unjust, then it ought not be a law. The fact that there would be people willing to break it tells us nothing about whether or not it should be implemented.

Posted by: Andrew MacKie-Mason | Jul 26, 2011 3:45:27 PM

I'm curious -- does the priest/penitent privilege as normally understood prevent the penitent from being compelled to say what he confessed to the priest, or does it protect only the priest? Obviously there could be self-incrimination issues here in a number of cases, but assume the testimony sought is not incriminating of a criminal offense.

Posted by: Jay | Jul 26, 2011 3:20:56 PM

Privileges against disclosure are generally available for non-religious counselors in mental health fields. Those cost money, so perhaps there should be privileges for bartenders and hairdressers.

Both Garnett and the previous anon are right, though. Such a move won't increase disclosure, but will merely jail some priests and/or discourage confessors from telling to begin with. What does that get us?

As for the stonewalling as justification, is there much evidence of confession-based evidence being withheld in particular? I'm willing to stand corrected, but I'd thought much of the coverup was from pressuring victims not to go public and shame the Church, and from keeping discipline minimal or quiet, etc.. I didn't think much was learned from the pedophiles confessing to fellow priests. Is that wrong?

Posted by: anonny 42 | Jul 26, 2011 3:16:55 PM

Andrew, I assume you mean, when you say "forced to break", "jailed for refusing to break." A Catholic priest would not recognize any authority in the state to compel him to break the seal of the confessional. So, for me, an interesting question is "what would be the actual, real-world effect of these proposals?"

Posted by: Rick Garnett | Jul 26, 2011 11:48:47 AM

If that were the rule, though, no one would confess such things to the priest in the first place.

Posted by: Anon | Jul 26, 2011 11:46:29 AM

It seems to me that public policy demands a recognition of the "confessional" right even to the non-religious. Similar to the privacy of exchanges with legal counsel, individuals should have protected access to someone who can advise them on how to resolve moral/ethical dilemmas.

That said (and I don't know the Catholic perspective on this question) I think priests should be forced to break the seal of the confessional if they have reason to believe a crime is in progress or will be committed in the future. (The individual who confesses to kidnapping a girl who's still missing, for instance, or the step father who confesses to molesting his step son and feeling like he will do so again.)

Posted by: Andrew MacKie-Mason | Jul 26, 2011 11:29:28 AM

Anon, that's a fair point but, with all respect, isn't it *usually* the case that challenges to religious liberty are posed in contexts that help to explain (even if not to justify) those challenges?

Posted by: Rick Garnett | Jul 26, 2011 10:35:34 AM

I don't agree with the Irish government's attempt to require priests to report crimes learned during confession, but let's be clear about the context: the Irish government wants priests to break the seal when they learn about child abuse--and this only comes after years of church stonewalling and dissimulation about clerical child abuse.

Posted by: anonprof05 | Jul 25, 2011 9:27:00 PM

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