Will the legal protection of the content of confession and similar practices against its mandatory disclosure, even when a crime is involved, survive the present assault?
by Massimo Introvigne
In this series of articles, I have reviewed at length the book Religious Confession and Evidential Privilege in the 21st Century (Cleveland, Queensland: Shepherd Street Press, 2021), edited by Mark Hill and A. Keith Thompson. It is the most comprehensive treatment to date of a crucial issue: whether the legal statutes protecting ministers of all religions from disclosing what they have learned from parishioners within the context of a clergy-penitent relationship will, and should, survive the present assault by those who want to abrogate them in the wake of the pedophile Catholic priests scandals.
In the previous article, I examined the last chapter of the book, by Eric Lieberman, where he argues that the protection of the confessional privilege in the United States is based on constitutional principles rather than on precedents. As such, it should protect all religions, whether or not their confessional practices are similar to the Catholic confession, the subject matter of the earliest cases decided by American courts. Lieberman also concludes that, because of these reasons, auditing, the central religious practice of Scientology, will likely be granted by American courts the same protection they have offered to the Christian confession.
I agree with Lieberman’s conclusion, although he does not address the issue, discussed by other authors of the book, of the introduction of exceptions to the confessional privilege in cases of child sexual abuse that are now parts of the laws of Ireland and several Australian and American states and are being promoted elsewhere. While the protest against religious authorities who covered up cases of sexual abuse is understandable, I also agree with those who argued in the book that these statutes open a breach in the wall protecting the confessional privilege, which may lead to other breaches until the wall will collapse altogether.
The book addresses issues that go beyond confession. As a sociologist, I am reminded of the famous 1906 article by Georg Simmel (1858–1918) “The Sociology of Secrecy and of the Secret Societies” (American Journal of Sociology 11:441–98), which included many useful observations but ultimately fueled a culture of mistrust and suspicion against all religious (and non-religious) organizations maintaining secrets.
As Wouter Hanegraaff demonstrated in his Esotericism and the Academy: Rejected Knowledge in Western Culture (Cambridge: Cambridge University Press, 2012), the suspicion against secrets is as old as Protestantism. Secrets, the early Protestants believed, were a feature of pagan religions, used to hide immorality, and they had passed into Roman Catholicism. Later, Enlightenment philosophers and Marxist ideologists saw the secret as something usually hiding anti-liberal or right-wing conspiracies against progress or socialism.
American historian David Brion Davis (1927–2019), in another landmark article that he published in 1960 (“Some Themes of Counter-Subversion: An Analysis of Anti-Masonic, Anti-Catholic, and Anti-Mormon Literature,” Mississippi Valley Historical Review 47:205–24), argued that this century-old distrust of the secret led American Protestant to a militant and sometimes violent opposition in the 19th century against three secrets they regarded as immoral and sinister. They were the secrets of the Masonic lodges, of the Catholic confession, and of the Mormon temple rituals.
Later, more civility prevailed, and society seemed to accept from scholars that secret is intrinsic to spirituality, and religion cannot perform its role without the confidentiality of certain practices, which the laws should protect and guarantee as part of religious liberty. In the late 20th and 21st centuries, however, terrorist attacks perpetrated using or misusing the name of Islam, the pedophile priests crisis in the Catholic Church, and campaigns against “cults” revamped old theories that religious secrets are something sinister and hide illegal activities.
The Internet also created an illusion of total democratization and openness. Jesus said in Matthew 10:27 “What I tell you in the dark, speak in the daylight; what is whispered in your ear, proclaim from the roofs,” which was mistakenly interpreted to claim that in Christianity there should be no secrets. It seems that today the Internet is telling us “What was whispered in your ear, post on your blog or on Facebook immediately.”
Perhaps students should be taught courses using both the book by Hill and Thompson and David Ventimiglia’s 2019 textbook Copyrighting God: Ownership of the Sacred in American Religion (Cambridge: Cambridge University Press, 2019). The fashionable but false claim examined by Ventimiglia, that nothing published by a religion should be protected by copyright because religion should be free to be used and even misused by everybody, is based on the same rationale as the claim that nothing in a religion should be secret or confidential.
Not coincidentally, Ventimiglia’s book also discussed anti-copyright claims used against the Church of Scientology, although I am not sure I agree with his conclusions.
My personal opinion about the confession controversy is that laws affording a special protection to the Catholic Church’s sacrament of confession or its equivalents in certain Eastern Orthodox, Anglican, and Lutheran churches will probably not survive the pedophile clergy crisis, nor a Western world where, in one country after the other, active members of the traditional Christian churches are becoming part of a minority.
Italy may be a special case, because the protection of confession is part of a Concordat it signed not with the Italian Catholic Church, as explained in a previous article of this series, but with the Vatican as a foreign state, making it an international treaty. Other limited geographical exceptions may also survive. In general, however, special laws protecting the confessional practice of a church because it used to include the majority of a country’s population may become a thing of the past sooner than some religionists believe.
At the same time, both constitutional principles and international conventions about religious liberty will probably continue to be applied to recognize that religious practices for which an absolute confidentiality is essential, such as the Catholic or Eastern Orthodox confession or Scientology’s auditing, should remain protected and survive what the co-editor of the book calls the “moral panic” about child sexual abuse.
The expression should be qualified, as both Thompson and the undersigned, as well as the other authors of the book, agree that child sexual abuse by members of the clergy is a horrific reality. The moral panic operates when legitimate concerns are misused to demolish one of the foundations of religious liberty, the confessional privilege.
Churches, on the other hand, can and should contribute to defusing the moral panic by addressing the sexual abuse issues with more honesty and transparency than some of them exhibited in the past. I believe they should also accept that old statutes singling out “national” denominations for special protection will disappear (almost) everywhere, and focus on advocating for religious liberty and a confessional privilege for all religions.
However, absolute transparency is a myth. As the Hill-Thompson book demonstrates, the confessional privilege does not protect only, and perhaps not even mostly, the religions and the ministers. It protects the sinners, i.e., all of us, who should not be deprived of the comforting certainty that there is a place in the world where we can talk freely and acknowledge our shortcomings and wrongdoings, with confidence that what we say will not be reported to the police officer, the tax collector, or the prosecutor.
Without these safe havens, be they operated by the Catholic Church or the Armenian Orthodox Church or the Church of Scientology, not only will criminals lose what may well be their last opportunity to reform, but we will all lose one of the few opportunities remaining in this world to safely and honestly look at ourselves, our past mistakes, and our fears for the future.