Confessional secret

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As a confessional , Beichtsiegel or Sigillum confessionis is called the dutiful discretion of the clergy with regard to everything to him in the confession is entrusted. The confessional secret was first formulated by the general church in 1215 at the IV Lateran Council and has been anchored in canon law ever since .

Saint Nepomuk is considered the patron saint of the confessional secret. Roman Catholic priests who lost their lives as martyrs mainly or solely for the sake of protecting the confessional secret include Henry Garnet († 1606), Johannes Sarkander († 1620), Andreas Faulhaber († 1757), Pedro Marieluz Garcés (†) 1825), Felipe Císcar Puig († 1936) and Hermann Josef Wehrle († 1944 in Berlin-Plötzensee )

Canon Law

Roman Catholic Church

Confessional secrecy is unconditionally asserted in canon law (“The confessional secrecy is inviolable”, can. 983 §1 CIC 1983) and direct violation of the same is punishable by excommunication (can. 1388 §1 CIC). It was already recognized in the church in the Middle Ages and is therefore one of the oldest data protection institutions in legal history . In the strict sense, it only concerns the confessor; however, the duty of strict secrecy also binds “interpreters and all others ... who in some way came to knowledge of sins from confession” (can. 983 §2 CIC). Since those involved can also be punished with excommunication if they violate secrecy (can. 1388 §2 CIC), there is in practice no relevant difference to the secrecy of confession in the narrower sense. In all cases it is irrelevant whether absolution was given at confession ; The only requirement is the will of those concerned to make sacramental confession.

The Jesuit general Claudio Acquaviva , however, did not see the disclosure and use of information from sacramental confession by the superiors of his order as an inadmissible violation of the secrecy of confession.

The person making the confession is not obliged to maintain secrecy, not even with regard to statements made by the confessor. Nobody can release the latter from his or her obligation to maintain confidentiality vis-à-vis third parties, not even the confessor himself. Confessional secrecy must also be observed vis-à-vis them. Childbirth is only conceivable if it is in the interests of those affected and if they so wish, but then only for the specific situation, for example a personal conversation that a penitent has with the confessor about its content outside of confession. In any case, according to church law, a confessor is considered incapable of testifying for the knowledge acquired in confession, even an express delivery does not change anything.

Evangelical regional churches

Pastoral care and confession are recognized in the area of ​​the Protestant regional churches, albeit without a sacramental character. The secrecy of pastoral care and confession was therefore also recognized. Since 2009, the EKD's Pastoral Secrets Act has also regulated the legal basis of pastoral care in the Evangelical Church. A distinction is made between pastoral care and confession. While facts that have become known in the context of pastoral care may not be passed on without the will of the person entrusting themselves, the confessional secrecy is considered “inviolable”, so delivery by the person confessing is not possible.

Evangelical pastors have already been commissioned with pastoral care by virtue of their ordination and the preservation of pastoral care secrecy is one of their central official duties from the parish service laws of the regional churches . In addition, other employees in the Protestant area can be commissioned with pastoral care and confession.

Finally, in the area of ​​church administration, there is a general "official secrecy" to be observed also with state authorities, from which the superior authority can release.

Secular law

In national law, the importance of the confessional secrecy is assessed inconsistently from country to country; in the USA and Australia, as of June 2018, there are also different legislations between the sub-state units.

Australia

Federal law

In August 2017, the highest state investigative commission, the Royal Commission, recommended that the legislature introduce a criminal reporting obligation, which should also apply if a priest learns of sexual abuse in confession . The Australian bishops spoke out against this extension of the reporting requirement, citing the confessional secret.

Territorial Law

The capital Canberra enclosing Australian Capital Territory decided in June 2018 reporting requirement for priests who find in confession of sexual abuse, and entry into force of the law March 31, 2019. In South Australia holds a law in June 2018. In Tasmania and Western Australia was preparing a notification requirement despite the confidentiality of confession, the state of Victoria initially rejected its local introduction before a nationwide regulation. In September 2018, the parties agreed in the Victorian Parliament on the introduction of the general obligation to notify, with criminal penalties. New South Wales postponed the decision (as of July 2018). Since 2019, the criminal notification requirement has also been in force in Tasmania. The local Catholic Church called for the sabotage of the current law. Up to 21 years' imprisonment is available for following the call. In the Northern Territory , the obligation to report sexual offenses despite the confidentiality of confession has also been in effect since 2019.

Chile

In April 2019, the Chilean parliament passed a law that is intended to stipulate the criminal reporting obligation in the event of sexual abuse, despite the confidentiality of confession. The law has yet to be ratified by the Senate to take effect.

Costa Rica

In June 2019, the President of Costa Rica , Carlos Alvarado Quesada , called on parliament to discuss a criminal notification requirement in the event of sexual abuse. This should also apply if the witness, as a confessor, learns of the crime. Failure to report should be threatened with a fine .

Germany

Right to refuse to testify

In both German civil and criminal proceedings , clergymen are entitled to refuse to testify with regard to what is entrusted to them when exercising pastoral care . For criminal proceedings, this follows from Section 53 (1) no. 1 of the Code of Criminal Procedure , for civil proceedings from Section 383 (1) no. 4 of the ZPO . Contrary to the wording of Section 385 (2) ZPO, even a “delivery” (which is usually ineffective under canon law, see above) does not require a witness. For the Roman Catholic Church this results from Article 9 of the Reich Concordat , for other religious communities from the principle of equality .

Whoever is a clergyman in this sense is not determined by a certain status ( ordination , ordination ), but by the function of being called to pastoral care. Even pastoral , non-ordained pastors, parish deacons , etc. are therefore holders of rights to refuse to testify in question.

Failure to report planned crimes

For clergy there is Section 139, Paragraph 2 of the Criminal Code is also not required to report , even if, in their capacity as a pastor , they gain credible knowledge of the plan of high treason , treason , coinage , murder, manslaughter, robbery, kidnapping or a crime that is dangerous to the public . In this way, state law takes into account the conflict of conscience of the clergy and the credibility of the religious community concerned.

Reform project of the Federal Ministry of the Interior

In January 2008, a federal government under the leadership of the Federal Minister of the Interior, Wolfgang Schäuble , planned for the first time to restrict eavesdropping protection for clergymen ( Section 100c (6) of the Code of Criminal Procedure). This met with violent protests from the Christian churches. In the version of the BKA Act that has been in effect since January 1, 2009, there is no equivalent to this project.

France

In France , the secrecy of confession does not exempt from the obligation to report crimes against the defenseless or persons under 15 years of age. Failure to report a criminal offense will result in a fine of up to € 45,000 and imprisonment for up to three years. Since 2018, violations of the notification obligation no longer expire.

India

In India, there is a criminal reporting requirement for all offenses threatened with imprisonment, including the planning of criminal offenses, exceptions are not provided. Failure to report a criminal offense is threatened with up to a quarter of the maximum penalty applicable for the offense in question.

Ireland

In Ireland's criminal law , the confessional secret was an exception to the obligation to report child abuse until 2012 . The exception was abolished in 2012, but the criminal notification obligation was not applied in any court proceedings until August 2017.

Austria

The secrecy of confession enjoys particularly comprehensive protection in Austria , which committed itself to this in a concordat in 1933. Witnesses who are subject to confessional secrecy may not be questioned about facts that came to their attention in confession or in any other pastoral discussion; Knowledge gained in this way is subject to a prohibition on exploitation.

Sweden

According to Chapter 36, Section 5 of the Swedish Procedural Code (rättegångsbalken) priests should not be heard to content pastoral discussions in court. The duty of confidentiality applies absolutely, so it is not possible to release it. Chapter 31, §9 of the Church Regulations (Kyrkoordningen) of the Swedish Church contains a general obligation of confidentiality for priests.

Switzerland

In Switzerland , the secrecy of confession establishes a right to testify and refuse to report. A legislative proposal to lift the confidentiality of confession in the case of child abuse failed in the National Council in March 2012 .

United States

In the USA , the individual states and outer areas determine the significance of the confessional secrecy in court within the framework of general criminal and civil law . In all states, anyone, regardless of profession, has the legal right to report child neglect or sexual abuse. In addition , Delaware , Florida , Idaho , Indiana , Kentucky , Maryland , Mississippi , Nebraska , New Hampshire , New Jersey , New Mexico , North Carolina , Oklahoma , Puerto Rico , Rhode Island , Tennessee , Texas , Utah, and Wyoming are all independent obliged by their profession to report such cases. In Alabama , Arizona , Arkansas , Colorado , Connecticut , Georgia , Guam , Illinois , California , Louisiana , Maine , Massachusetts , Michigan , Minnesota , Mississippi , Missouri , Montana , Nevada , New Hampshire , New Mexico , North Dakota , Ohio , Oregon , Pennsylvania , South Carolina , Vermont , West Virginia, and Wisconsin clergy are among the notifiable professions; in Louisiana they are allowed to refuse to testify in civil proceedings on the basis of the confessional secret.

In February 2019, a bill was introduced in California that would criminalize the concealment of sexual abuse, even if it is known in confession. Michael Barber , Bishop of Oakland , announced that if the law passed, he would break the law and accept the threat of imprisonment .

Trivia

The secrecy of confession is a popular film motif: In his film Ich confess (1953), Alfred Hitchcock deals with the problem of a priest being suspected of murder whose real perpetrator he knows from confession, but is not allowed to use this knowledge to exonerate himself due to the secrecy of confession . Other films with the confessional secret as a central motif are, for example, The Seal of God (1949), The Red Hostel (1951), The Chaplain of San Lorenzo (1953), Confessional Secret (1956), The Good Shepherd (2004) and On Sunday You're Dead (2014).

literature

  • Secretariat of the German Bishops' Conference (Ed.): Testimony, right to refuse to testify and confidentiality. A legal guide for pastors on the protection of confessional and pastoral secrets (= Secretariat of the German Bishops' Conference. Working aids 222). Secretariat of the German Bishops' Conference, Bonn 2008 (PDF; 150 kB) .
  • Walter Fischedick: The right of clergy and church employees to refuse to give evidence (= writings on state church law. Vol. 30). Lang, Frankfurt am Main et al. 2006, ISBN 3-631-54053-1 (At the same time: Frankfurt am Main, University, dissertation, 2004/2005).
  • Nikolaus Knopp: The Catholic pastor as a witness in court. A canonical-pastoralist treatise. Manz, Regensburg 1849.

Web links

Individual evidence

  1. ↑ Canon 21, cf. DS 814.
  2. ↑ a b c Rudolf Weigand : § 69. The Sacrament of Penance. In: Joseph Listl , Hubert Müller , Heribert Schmitz : Outline of post-conciliar church law. Verlag Friedrich Pustet , Regensburg 1980. ISBN 3-7917-0609-8 , pp. 504-519. Here: p. 515f. ("4. The Confessional Secret").
  3. ↑ Art. Henry Garnet ( memento of March 9, 2015 in the Internet Archive ) on the website of the Gunpowder Plot Society (English, accessed on May 23, 2015); see. Philip Caraman: Henry Garnet 1555-1605 and the Gunpowder Plot. Longmans, London 1964.
  4. ↑ a b c d e Cf. Paul Jerome Keller: 101 Questions & Answers on the Sacraments of Healing: Penance and Anointing of the Sick. New York 2010, pp. 71-73. (limited book preview, English).
  5. ↑ Virgilio Grandi: El convento de la Buenamuerte. 275 años de presencia de los padres camilos en Lima. Bogotá 1985, pp. 125–129 ( proof of work ( memento of April 28, 2016 in the Internet Archive )).
  6. ↑ The provision was also found word for word in the previous code (can. 889 §1 CIC 1917).
  7. ↑ Before the promulgation of the new CIC in 1983, this was seen differently and interpreters etc. were also considered to be directly bound by the secrecy of confession; see. R. Weigand: § 69. The sacrament of penance. In: Listl, Müller, Schmitz: Outline of post-conciliar church law. Regensburg 1980, p. 515. In the current church code, however, an express distinction is made between the confessional secret of the confessor and the confidentiality obligation of other parties involved; see. PJ Keller: 101 Questions & Answers on the Sacraments of Healing: Penance and Anointing of the Sick. New York 2010, p. 73.
  8. ^ Oskar Panizza : German theses against the Pope and his dark men. 'With a foreword from MG Conrad . New edition (selection from the “666 theses and quotations”). Nordland-Verlag, Berlin 1940, p. 70.
  9. ↑ Full text of the church law for the protection of pastoral secrecy (Seelsorgegeheimnisgesetz - SeelGG) of October 28, 2009 http://www.kirchenrecht-ekd.de/document/12484
  10. ↑ Commission against Confessional Secrecy in Child Abuse. Deutschlandfunk from August 14, 2017.
  11. ↑ Australia: Confessional secrecy even in the event of abuse. ORF from August 15, 2017.
  12. ↑ Australia advises lifting the confidentiality of confession in the event of abuse. kath.net from June 15, 2018.
  13. ↑ South Australia no longer protects confessional secrets. Pro media magazine from June 15, 2018
  14. ↑ Parties in Victoria for the end of confessional secrecy in the event of abuse - Up to three years in prison could threaten. Domradio from September 7th 2018.
  15. ↑ Melissa Davey: Victoria criticized for delaying decision on reporting child abuse heard in confession. The Guardian July 11, 2018.
  16. ↑ Australian state hesitates to require priests to break seal of confession. Catholic News Agency July 12, 2018.
  17. ↑ Law will not strengthen protection. Domradio from September 12, 2019.
  18. ^ Chile: legislative initiative wants to overturn confessional secrecy. ORF from April 26, 2019.
  19. ↑ Chile: Bishops adhere to the secret of confession. Vatican News of April 30, 2019.
  20. ↑ "The confessional secret is inviolable - confession is a sacred space". kath.net from June 11, 2019.
  21. ↑ BGH NJW 2007, 307 (308: tasks of pastoral care ); BVerfG v. January 25, 2007 ( 2 BvR 26/07 ), No. 12: The prerequisite for the granting of the right to refuse to testify is a sufficiently concrete job description of the privileged group of people.
  22. ↑ Farewell to the confessional secret? Vatican Radio.
  23. ↑ Article 434-3, code pénal
    "Better go to prison than report a priest". Spiegel Online , April 16, 2010.
  24. ↑ Pope appoints administrator for the diocese of Cardinal Barbarin. kath.net from June 25, 2019.
  25. ↑ Indian Penal Code, section 120 ff
  26. ↑ Investigators against confessional secrecy in child abuse. RP online from August 14, 2017.
  27. ^ Klaus Schwaighofer : Confessional Secret: Loosening it would be a mistake. The press , September 18, 2011.
  28. ^ National Council: Confessional secret remains in the event of abuse. Tagesschau , March 7, 2012.
  29. ^ US Department of Health & Human Services : Mandatory Reporters of Child abuse and neglect. P. 2, as of August 2015.
  30. ↑ US court confirms: The confessional secret is inviolable. Catholic News Agency , Aug. 4, 2016.
  31. ↑ Jordan Bloom: Could priests in California be jailed over the Seal of Confession? Catholic Herald, February 28, 2019
  32. ↑ US Bishop: Go to jail before I break the confessional secret. kath.net from June 5, 2019.