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I'm referring to Catholic confession to a priest. I'm sure, like attorney-client privilege, that if you disclose a future crime you are planning to commit then they can and will tell the police. I'm wondering, is the secrecy of confession an actual legal privilege? If you confessed to a previous murder, would they legally be able to report it? Is the secrecy of confession just a rule within the religion to encourage people to confess their most often non criminal sins?

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    – Dale M
    Jul 8, 2023 at 15:07

9 Answers 9

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§53 StPO (1) 1. allows clerics to refuse to testify about things they were told during spiritual care. This does not require the setting to be exactly the Catholic sacrament of confession: it would be enough if a troubled person seeks the cleric to talk to because the cleric is a cleric.

Sections 2. to 5. list other groups with or without restrictions. Lawyers, notaries, tax advisors, physicians, pharmacists, midwives, drug abuse counselors and similar people, members of parliament, and journalists can refuse to testify about some or all they learned in the course of their protected profession. For many of them, including physicians, the subject can waive the right to secrecy, then they cannot avoid testimony any more.

The same applies to professional assistants of these people, e.g. the sexton who allows someone in or the clerk who makes an appointment.

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    This doesn't answer the question. The question is whether they may testify, not whether they may refrain from doing so.
    – DonQuiKong
    Jul 8, 2023 at 22:20
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    @DonQuiKong, the question was also if this was "just within the religion," and the law shows that it is not.
    – o.m.
    Jul 9, 2023 at 4:20
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    "The refusal may be waived by the person who did the confession, in which case the cleric can no longer refuse." That is wrong: ex negativo § 53 II 1 StPO. The client can waive the right to refuse to testify for his attorney, but not for his priest. This fits with the (catholic) religious rule: the secrecy of confession cannot be lifted by anyone – neither the penitent not a religious superior.
    – K-HB
    Jul 10, 2023 at 12:07
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    @K-HB, right, I did mis-read 1.2. for 1.1.
    – o.m.
    Jul 10, 2023 at 15:01
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In the , that privilege exists, but its availability and parameters vary from one jurisdiction to the next. See, e.g., Totten, Administrator, v. United States, 92 U.S. 105, 107 (1875) (“Suits cannot be maintained which would require a disclosure of the confidences of the confessional.”).

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  • But if a suit is 'reasonable' without that evidence, is it allowable?
    – MikeB
    Jul 10, 2023 at 7:56
  • @MikeB If you can prosecute without the testimony of the priest who received the defendant's confession, then the disclosure is not required, and thus the suit can be maintained.
    – hszmv
    Jul 10, 2023 at 13:44
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    Should also clarify, that a priest who does testify to a confession made by the defendant is legally admissible if the priest and defendant waves the rights. However, the court cannot compel the priest to testify (even if the defendant waves their right) as typically, a priest who speaks about a confession made to them is a major violation of their religious beliefs. In the Catholic Church, a priest who breaks the seal of Confession has committed a sin so grave, they are usually excommunicated from the church.
    – hszmv
    Jul 10, 2023 at 13:49
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    Per Canon 1386 of the Code of Canon Law, "a confessor who directly violates the sacramental seal incurs a latae sententiae (automatic) excommunication reserved to the Apostolic See." Jul 10, 2023 at 18:45
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In statute 905.06 says:

Communications to members of the clergy.
(1)  Definitions. As used in this section:
(a) A “member of the clergy" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting the individual.
(b) A communication is “confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(2)  General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as a spiritual adviser.
(3)  Who may claim the privilege. The privilege may be claimed by the person, by the person's guardian or conservator, or by the person's personal representative if the person is deceased. The member of the clergy may claim the privilege on behalf of the person. The member of the clergy's authority so to do is presumed in the absence of evidence to the contrary.
(4)  Exceptions. There is no privilege under this section concerning observations or information that a member of the clergy, as defined in s. 48.981 (1) (cx), is required to report as suspected or threatened child abuse under s. 48.981 (2) (bm) or as a threat of violence in or targeted at a school under s. 175.32.

The exceptions turn out not to be exceptions, however, if a confession is involved. According to 48.981(2)(bm)(3):

A member of the clergy is not required to report child abuse information under subd. 1. or 2. that he or she receives solely through confidential communications made to him or her privately or in a confessional setting if he or she is authorized to hear or is accustomed to hearing such communications and, under the disciplines, tenets, or traditions of his or her religion, has a duty or is expected to keep those communications secret. Those disciplines, tenets, or traditions need not be in writing.

175.32(2)(c)(2) has similar language.

So, in Wisconsin, the answer is yes. A confession to a past murder, or any other crime, would be legally privileged by statute.

A "confession" to a future murder runs into the problem that this would not be considered a valid confession by the Catholic Church - you can't ask to be absolved from a sin you haven't committed yet; if you were truly repentant you wouldn't still be planning to do it. This would likely release the priest from the religious obligation to not tell, and that in turn could at least result in it not being covered by the exceptions to 48.981 and 175.32 (since there's no longer a religious duty to keep it confidential.)

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Per Wikipedia, confession to a priest isn't legally privileged.

The doctrine of priest–penitent privilege does not appear to apply in English law. The orthodox view is that under the law of England and Wales privileged communication exists only in the context of legal advice obtained from a professional adviser. A statement of the law on priest–penitent privilege is contained in the nineteenth century case of Wheeler v. Le Marchant:

In the first place, the principle protecting confidential communications is of a very limited character. ... There are many communications, which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. ... Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important than his life or his fortune, are not protected.

— Sir George Jessel MR, Wheeler v. Le Marchant (1881) 17 Ch.D 681[3]

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    This appears to be obiter dictum and would have the effect of limiting common law, which (my understanding is) can only be limited by Parliament creating replacement statute law. Indeed, the Canons of the Church of England, which are part of statute law, protect sacramental confessions. Jul 11, 2023 at 7:20
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Yes, but …

s127 of the uniform Evidence Act allows a member of the clergy to refuse to reveal the contents of or existence of a confession.

However, unlike a lawyer’s privilege, if the cleric chooses to testify, the evidence is admissible.

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  • The "uniform" Evidence Act is "uniform" federally and in several states.
    – david
    Jul 11, 2023 at 7:02
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The common law only provides privilege to religious communications on a case-by-case basis

At common law, there is no categorical privilege for religious communications. Instead, each claim to privilege for a religious communication is dealt with on a case-by-case basis under the "Wigmore test" (from John Henry Wigmore). See R. v. Gruenke, [1991] 3 S.C.R. 263:

  1. The communications must originate in a confidence that they will not be disclosed.
  2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
  3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
  4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

In recognition of the guarantee of religious freedom in s. 2 of the Charter and the interpretive statement in s. 27 of the Charter that the Charter is to be interpreted "in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians": "all of the relevant circumstances must be considered and the Wigmore criteria applied in a manner which is sensitive to the fact of Canada's multicultural heritage" (Gruenke, p. 291).

Two provincial jurisdictions provide statutory privilege

The province of Newfoundland and Labrador and the province of Québec both provide a statutory clergy privilege. See Newfoundland and Labrador's Evidence Act, R.S.N.L. 1990, c. E-16, s. 8:

A member of the clergy or a priest shall not be compellable to give evidence as to a confession made to him or her in his or her professional capacity.

And see Québec's Charter of human rights and freedoms, L.Q., c. c-12, art. 9:

Every person has a right to non-disclosure of confidential information.

No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.

The tribunal must, exofficio, ensure that professional secrecy is respected.

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In , yes, it's privileged as priests have a particularly strong confidentiality, often called "absolute confidentiality". The information received by a priest during a confession or an individual pastoral conversation may not, at all, be used in any other process. The priest may not be called to testify in a trial and is exempt from mandatory reporting laws.

This is by the Swedish Code of Judicial Procedure, where Chapter 36, section 5 prohibits calling priests as witnesses.

Before 2000, this would not have applied to Catholic confession as the confidentiality was limited to the Church of Sweden, a Lutheran church that was then the official state church and the confidentiality was stipulated in the Church Law that applied to the Church of Sweden.

The restriction is no longer there because Sweden fully separated church and state in 2000. The confidentiality is currently not limited to Christian priests either, the law refers to "a priest in a religious organization or a person of equivalent standing in such an organization" so the confidentiality would apply to priest-equivalent members of registered religious organizations.

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Confession in a seal of secrecy is much older than much current law

The practice of regular or devotional confession and absolute confidentiality was confirmed and codified from the 13th century in Europe. More recent developments in mandatory reporting and legislation intended to prevent abuse seem to conflict with the 'seal of confession'.

Confession is unbounded in terms of the scope of the sins that can be confessed and absolved

Here is an example statement about confession from the document cited below:

Provided always, That if any Man confess his secret and hidden Sins to the Minister for the unburdening of his Conscience, and to receive spiritual Consolation and Ease of Mind from him: We do not any way bind the said Minister by this our Constitution, but do straitly charge and admonish him [...], that he do not at any time reveal and make known to any Person whatsoever, any Crime or Offence so committed to his Trust and Secrecy (except they be such Crimes as by the Laws of this Realm, his own Life may be called into question for concealing the same)25 under pain of Irregularity...

European law and practice varies

From the Ecumenical Summary of the Ecclesiastical Law Society's Report of its Working Party on the Seal of Confession:

In Germany while there is a criminal law duty to report planned crimes an exception is made for those engaged in pastoral care.

In the Nordic and Baltic Churches there are similarities with the Church of England.

Denmark has an older law imposing secrecy but also a modern law duty to report.

In Finland there is a duty to encourage self-reporting and (as in Germany) a duty to alert the authorities of potential future crimes yet maintaining confidentiality.

For the Roman Catholic Church, having a universal Canon Law, no Bishops’ Conference has the authority to change the absolute seal of confession. Nevertheless, there are continuing official discussions in the Vatican covering all aspects of safeguarding questions and the sacrament of reconciliation. These include the necessity of far more effective training of priests, especially on the question of how to help either a penitent or victim/survivor to move from the confidentiality of their confession to God to seeking professional help and disclosure to the authorities where appropriate.

The same report furnishes the practice of the Church of England, which operates under Canon Law, which carries legal privileges in England:

The Guidelines for the Professional Conduct of the Clergy [...] begins by referring to the ministry of reconciliation and then proceed[s] via the formal ministry of absolution to deal with the inviolability of the Seal. It sets out the restrictions upon which and where ministers may exercise the ministry [...] It draws the distinction between on the one hand pastoral conversations and on the other hand confessions in the context of this ministry. It states the absolute inviolability of the Seal even after the death of the penitent. It states that if a penitent discloses serious crime (such as abuse) the priest must require the penitent to report that conduct to the police or other statutory authority and if the penitent refuses to do so absolution should be withheld. It makes clear that any disclosure outside the confessional should be dealt with by following established procedures of reporting.

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The Canons of the Church of England, which are part of statute law, protect sacramental confessions within the Church of England:

Provided always, that if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we do not in any way bind the said minister by this our Constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same), under pain of irregularity.

The effect of that proviso has actually been widened over time, as the perils to the priest's own life have been diminished. There are now no crimes for which the death penalty applies.

This protection only applies to clergy of the Church of England.

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