Priest-penitent privilege
Encyclopedia
The priest–penitent privilege, also known as the clergy privilege, clergy–penitent privilege, confessional privilege, and ecclesiastical privilege, is an application of the principle of privileged communication that protects the contents of communications between a member of the clergy
and a penitent, who shares information in confidence. It stems from the principle of confessional privilege
. It is a distinct concept from that of confidentiality
(see non-disclosure agreement
).
of the Republic of Ireland
as the privilege of the priest in the case of Cook v. Carroll [1945] IR 515. In 2011, in the wake of several sex abuse scandals
, the Fine Gael–Labour government
announced plans to criminalise failure to report an allegation of child abuse
, even if made during confession. Seán Brady
, the Catholic primate of all Ireland, condemned this as compromising the seal of the confessional.
is largely cited as the jurisprudential
basis. The earliest and most influential case acknowledging the priest–penitent privilege was People v. Phillips, where the Court of General Sessions of the City of New York
refused to compel a priest to testify or face criminal punishment. The Court opined:
"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..."
A few years after Phillips was decided, People v. Smith distinguished the case on the grounds that the defendant had approached the minister as a "friend or adviser," not in his capacity as a professional or spiritual advisor. As with most privileges, a debate still exists about the circumstances under which the priest-penitent privilege applies. The capacity in which the clergyman is acting at the time of the communication is relevant in many jurisdictions.
In twenty-five states, the clergyman-communicant statutory privilege does not clearly indicate who holds the privilege. In seventeen states, the penitent's right to hold the privilege is clearly stated. In only six states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege.
provinces
recognize the privilege in the communications between individuals and their religious leaders in their statutes (Newfoundland
and Quebec
under its Charter of Human Rights and Freedoms
). Otherwise, religious communication is covered by common law
.
Canadian law descends from British common law
, and as such the status of priest–penitent privilege is not well defined in national jurisprudence. R. v. Gruenke
from 1991 is the leading Supreme Court of Canada
case regarding this privilege. Religious communications are not presumptively (prima facie
) privileged.
The court establishes that a test, proposed by John Henry Wigmore
, might be employed to determine whether a specific communication is privileged or not. The "Wigmore Criteria" is seen as a general framework, not a "carved in stone" approach. The "Wigmore Criteria" are generally used to determine if privilege covers communications that do not fall under the classic privileged communications such as solicitor-client privilege or spousal privilege
.
To determine whether a communication is privileged, the "Wigmore Criteria" state that:
The "Wigmore Criteria" are informed by the Canadian Charter of Rights and Freedoms
guarantee of freedom of religion (protected under s.2(a)) and the interpretive s.27 ("This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.")
As a result of s.27, the term "religious communications" is used in place of the more common "priest-penitent" term. Similarly, analysis should begin from a non-denominational approach.
Religious freedom strengthens the argument in favour of recognition of the privilege for religious communications. However, religious communications are only privileged in particular cases when the Wigmore criteria are satisfied. While a formal confession process is not necessary, it can help in determining whether there is an expectation of privacy when evaluating the communication using the "Wigmore Criteria"
In R. v. Gruenke
, it was found that the communications were not privileged because there was no expectation of privilege between Ms. Gruenke and her pastor and her religious counsellor.
In October 1999, it was reported that the Canadian government had opposed a plan to recognize the value of priest–penitient privilege within the bounds of international law
.
explicitly forbids calling a clergyman as a witness in order to disclose information he obtained during confession. Article 261 of Polish civil code
allows clergymen to abstain from testifying informations he obtained during confession.
, writing in the early years of the nineteenth century, devoted a whole chapter to serious, considered argument that Roman Catholic confession should be exempted from disclosure in judicial proceedings, even in Protestant countries, entitled: Exclusion of the Evidence of a Catholic Priest, respecting the confessions entrusted to him, proper. Remarkably, Bentham was an opponent of professional privilege for the giving of legal advice. He noted:
He refers the reasons in favour of the exclusion to two heads:
Under the first heading he says that the effect of non-exclusion would be the decrease in the practice of confession, he said:
The whole chapter is exclusively limited to the claim for protection for the Catholic practice of confession.
Clergy
Clergy is the generic term used to describe the formal religious leadership within a given religion. A clergyman, churchman or cleric is a member of the clergy, especially one who is a priest, preacher, pastor, or other religious professional....
and a penitent, who shares information in confidence. It stems from the principle of confessional privilege
Confessional Privilege (United States)
In United States law, confessional privilege is a rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and communicants....
. It is a distinct concept from that of confidentiality
Confidentiality
Confidentiality is an ethical principle associated with several professions . In ethics, and in law and alternative forms of legal resolution such as mediation, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to...
(see non-disclosure agreement
Non-disclosure agreement
A non-disclosure agreement , also known as a confidentiality agreement , confidential disclosure agreement , proprietary information agreement , or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties...
).
Republic of Ireland
The privilege was recognised under the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
as the privilege of the priest in the case of Cook v. Carroll [1945] IR 515. In 2011, in the wake of several sex abuse scandals
Catholic sexual abuse scandal in Ireland
The Catholic sexual abuse scandal in Ireland is a major chapter in the worldwide Catholic sexual abuse scandal. Unlike the Catholic sexual abuse scandal in the United States, the scandal in Ireland included cases of high-profile Catholic clerics involved in illicit heterosexual relations as well as...
, the Fine Gael–Labour government
Government of the 31st Dáil
The Government of the 31st Dáil is the present Government of Ireland, formed after the 2011 general election to Dáil Éireann on 25 February 2011. Fine Gael entered into discussions with the Labour Party which culminated in a joint programme for government. The 31st Dáil first met on 9 March 2011...
announced plans to criminalise failure to report an allegation of child abuse
Child abuse
Child abuse is the physical, sexual, emotional mistreatment, or neglect of a child. In the United States, the Centers for Disease Control and Prevention and the Department of Children And Families define child maltreatment as any act or series of acts of commission or omission by a parent or...
, even if made during confession. Seán Brady
Seán Brady
Seán Baptist Brady is an Irish cardinal of the Catholic Church. He is the current Archbishop of Armagh and Primate of All Ireland, and was elevated to the cardinalate in 2007.-Early life and education:...
, the Catholic primate of all Ireland, condemned this as compromising the seal of the confessional.
United States of America
The First AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
is largely cited as the jurisprudential
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
basis. The earliest and most influential case acknowledging the priest–penitent privilege was People v. Phillips, where the Court of General Sessions of the City of New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
refused to compel a priest to testify or face criminal punishment. The Court opined:
"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..."
A few years after Phillips was decided, People v. Smith distinguished the case on the grounds that the defendant had approached the minister as a "friend or adviser," not in his capacity as a professional or spiritual advisor. As with most privileges, a debate still exists about the circumstances under which the priest-penitent privilege applies. The capacity in which the clergyman is acting at the time of the communication is relevant in many jurisdictions.
In twenty-five states, the clergyman-communicant statutory privilege does not clearly indicate who holds the privilege. In seventeen states, the penitent's right to hold the privilege is clearly stated. In only six states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege.
United Kingdom
As the only professional privilege granted in English law is for the purposes of obtaining legal advice from professional advisers, there is no priest-penitent privilege.Canada
Two CanadianCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
provinces
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
recognize the privilege in the communications between individuals and their religious leaders in their statutes (Newfoundland
Newfoundland
Newfoundland usually refers to either:* Newfoundland, the former name of Newfoundland and Labrador, a Canadian province in the eastern part of Canada* Newfoundland , an island that forms part of the province of Newfoundland and Labrador...
and Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
under its Charter of Human Rights and Freedoms
Quebec Charter of Human Rights and Freedoms
The Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
). Otherwise, religious communication is covered by common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
Canadian law descends from British common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, and as such the status of priest–penitent privilege is not well defined in national jurisprudence. R. v. Gruenke
R. v. Gruenke
R. v. Gruenke [1991] 3 S.C.R. 263 is a leading Supreme Court of Canada decision on privilege. The Court developed a case-by-case test for determining if a communication is privileged...
from 1991 is the leading Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
case regarding this privilege. Religious communications are not presumptively (prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
) privileged.
The court establishes that a test, proposed by John Henry Wigmore
John Henry Wigmore
John Henry Wigmore was a U.S. jurist and expert in the law of evidence. After teaching law at Keio University in Tokyo , he was the dean of Northwestern Law School...
, might be employed to determine whether a specific communication is privileged or not. The "Wigmore Criteria" is seen as a general framework, not a "carved in stone" approach. The "Wigmore Criteria" are generally used to determine if privilege covers communications that do not fall under the classic privileged communications such as solicitor-client privilege or spousal privilege
Spousal privilege
In the law of the United States, the spousal privilege comprises two separate privileges, the marital confidences privilege and the spousal testimonial privilege....
.
To determine whether a communication is privileged, the "Wigmore Criteria" state that:
- The communications must originate in a confidence that they will not be disclosed
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties
- The relation must be one which in the opinion of the community ought to be sedulously fostered.
- The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation
The "Wigmore Criteria" are informed by the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
guarantee of freedom of religion (protected under s.2(a)) and the interpretive s.27 ("This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.")
As a result of s.27, the term "religious communications" is used in place of the more common "priest-penitent" term. Similarly, analysis should begin from a non-denominational approach.
Religious freedom strengthens the argument in favour of recognition of the privilege for religious communications. However, religious communications are only privileged in particular cases when the Wigmore criteria are satisfied. While a formal confession process is not necessary, it can help in determining whether there is an expectation of privacy when evaluating the communication using the "Wigmore Criteria"
In R. v. Gruenke
R. v. Gruenke
R. v. Gruenke [1991] 3 S.C.R. 263 is a leading Supreme Court of Canada decision on privilege. The Court developed a case-by-case test for determining if a communication is privileged...
, it was found that the communications were not privileged because there was no expectation of privilege between Ms. Gruenke and her pastor and her religious counsellor.
In October 1999, it was reported that the Canadian government had opposed a plan to recognize the value of priest–penitient privilege within the bounds of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
.
Poland
Article 178 of Polish criminal codeCriminal Code
A criminal code is a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law...
explicitly forbids calling a clergyman as a witness in order to disclose information he obtained during confession. Article 261 of Polish civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
allows clergymen to abstain from testifying informations he obtained during confession.
Justification of the principle
McNicol gives three arguments in favour of the privilege:- Freedom of religionFreedom of religionFreedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
- The ethical duty of ministers of religion to keep confessions confidential
- The practical fact that ministers of religion will inevitably be ruled by the conscience and defy the courts, even at the cost of their own liberty.
Bentham's views
Jeremy BenthamJeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
, writing in the early years of the nineteenth century, devoted a whole chapter to serious, considered argument that Roman Catholic confession should be exempted from disclosure in judicial proceedings, even in Protestant countries, entitled: Exclusion of the Evidence of a Catholic Priest, respecting the confessions entrusted to him, proper. Remarkably, Bentham was an opponent of professional privilege for the giving of legal advice. He noted:
He refers the reasons in favour of the exclusion to two heads:
- evidence (the aggregate mass of evidence) not lessened
- "vexation", "preponderant vexation".
Under the first heading he says that the effect of non-exclusion would be the decrease in the practice of confession, he said:
The whole chapter is exclusively limited to the claim for protection for the Catholic practice of confession.