Seal of the confessional.

Jimmy Akin links to a story from Los Angeles:

A judge has ruled that a monsignor in the Roman Catholic Archdiocese of Los Angeles must submit to deposition questions in the far-reaching clergy abuse case.

In his order, Los Angeles Superior Court Judge Haley Fromholz writes that Monsignor Michael Lenihan cannot assert "clergy privilege" to avoid revealing whether he heard confessions of a deacon accused of sexual abuse.

Fromholz writes that "the penitential privilege protects ‘a communication made in confidence"’ but "does not prohibit the disclosure of the fact that the communication occurred."

In other words, the judge has ruled that even though a priest is permitted by U. S. law (technically a First Amendment protection, I believe) to keep secret what he hears in confession, the priest is not protected from revealing whether or not he has heard a particular person’s confession.  (Note that regardless of the civil law, a priest may not break the seal of the confessional and, where there is no civil protection of the confessional, he must submit to civil punishment rather than reveal the contents of a confession.)

I understand that there is some debate regarding whether Canon Law considers the fact that a confession took place to be under the seal of a confession.  It seems rather odd to me — going to confession is usually a public act, even if the confession itself is not public.  Anyone can sit in the church and watch penitents standing in line at the confessional.  But read it for yourself (n.b. "confessor" = "the priest who hears the confession"):

Can.  983 §1. The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.

§2. The interpreter, if there is one, and all others who in any way have knowledge of sins from confession are also obliged to observe secrecy.

Can.  984 §1. A confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded.

So, let’s say a crime is committed on Monday.  Tuesday, Joe makes a confession to Father Smith.  Father Smith knows "Joe made a confession to me on Tuesday."  Fr. Smith knows this because… he acquired the knowledge during confession!  Now the state is prosecuting Joe for some crime and wants to use "Joe made a confession to Fr. Smith the day after the crime" as a piece of evidence that suggests Joe did something bad prior to Tuesday… that is, the state wants to use the knowledge "Joe made a confession to Fr. Smith on Tuesday" to Joe’s detriment.  Is Fr. Smith permitted to reveal that fact to the state?

I’d say Fr. Smith is prohibited completely, but IANACL.

Anyway, a good analysis of this story is to be found at Canon-law-blog In the Light of the Law, who demonstrates that there are no relevant legal conclusions that can be drawn from the fact that a person did or didn’t make a confession anyway.  So why bother (unless it’s some sort of slippery-slope attempt to remove penitential privilege entirely)?  To sum up, in the case of Joe-under-suspicion, a court can’t conclude

1. whether Joe confessed a serious sin (rather than a trivial one),
2. whether Joe confessed something that wasn’t already public knowledge,
3. whether Joe confessed something new (rather than something he had previously confessed),
4. whether Joe confessed a sin at all,
5. whether Joe completed his confession or was interrupted,
6. whether Joe confessed something that would be wrong for everyone, or something that would be wrong only if Joe or others in his specific situation did it.

So why try to get the priest to say whether a particular accused person went to confession at all?