Earlier this week, Howard Friedman posted an interesting piece on Religion Clause, Penitent May Testify To Her Statements To Priest In Confession, about a US case on the confidentiality of sacramental confession. In February a Louisiana trial court had held that a plaintiff suing a priest and the Roman Catholic Church could legitimately testify that in 2008 she had told the priest in confession that she was being abused by a parishioner.
The Church and the priest appealed on grounds of confidentiality; but in Mayeux v Charlet LA App, July 29, 2016, in a 2-1 decision, the appeals court upheld the trial court. Drake and Chutz JJ denied the application for a supervisory writ without giving reasons: dissenting, however, Holdridge J argued that, because the seal of the confessional prohibits a priest from revealing anything learned during confession on pain of excommunication latae sententiae,
“allowing Plaintiffs to mention, reference, or introduce evidence at trial of the confessions at issue will place an undue burden on Father Bayhi’s right to the free exercise of his religion and violates the constitutional command of separation of church and state. La. Const. art. I, § 8. The statements of both parties may also be inadmissible. La. Code Evid. arts. 401, 403, and 801.”
The US Free Exercise Clause has no obvious UK parallel: there is certainly no simple read-across to Article 9 ECHR. However, the case raises an interesting issue from an English common law perspective – Louisiana not being a common law jurisdiction in matters of private law – exactly whose privacy is the seal intended to protect: the priest’s or the penitent’s?
In an earlier post we noted R v Leighton  EW Misc (CrownC) (unreported) in which HHJ Moreland refused to regard as privileged a previous admission of guilt by the accused, a Jehovah’s Witness “ministerial servant”, before the elders of his church when confronted with allegations of sexual misconduct. The three elders to whom the admission had been made were issued with witness summonses and the judge ordered them to testify, taking the view that the public interest in establishing the facts overrode their confidentiality claim.
In a subsequent comment on that post, Alan T Perry, Executive Archdeacon of the Diocese of Edmonton, drew our attention to the judgment of the Supreme Court of Canada in R v Gruenke  3 SCR 263, in which the Court adopted the Wigmore Criteria as the test that must be applied to any claim of priest-penitent privilege. The first of the Criteria is that the communication in question must originate in a confidence that the communication will not be disclosed. Since it is the penitent that is making the communication, not the priest, the parallel would appear to be with the understanding in English law that, in the case of lawyer-client confidentiality, the privilege attaches to the client, not to the legal adviser: see, for example, the advice of the Law Society of England & Wales on legal professional privilege.
On that basis, it would appear likely that, where a claim of privilege is made in respect of information disclosed in confession, the privilege – if it exists at all, which is itself something that is not entirely beyond question – attaches to the penitent. Possibly the minister in the case could try pleading interference with the right to manifest under Article 9 ECHR, but we suspect that s/he might get pretty short shrift from the court in doing so.
Whether or not the court would be prepared to respect the Article 8 right of a penitent to privacy is another matter.