Difference between revisions of "Priest-Penitent Privilege"

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== Justification for the privilege ==
 
== Justification for the privilege ==
  
John Henry Wigmore, whose influential treatise on evidence was first published in 1904, approved the privilege on the grounds that it passed what he called the four canons of privileged communications. These, canons, expressed in the form of a question, constituted a four-pronged test for whether a privilege should be recognized at common law. First, does the communication originate in a confidence of secrecy? Second, is the confidentiality of the communication integral to the relation? Third, should the state formally recognize and countenance the penitential relation? Finally, would forced disclosure result in an injury that would be greater than the benefit to justice? On the whole, Wigmore concluded that the privilege should be sustained.  
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John Henry Wigmore, whose influential treatise on evidence was first published in 1904, approved the privilege on the grounds that it passed what he called the four canons of privileged communications. These canons, expressed in the form of a question, constituted a four-pronged test for whether a privilege should be recognized at common law:
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1)  Does the communication originate in a confidence of secrecy?  
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2)  Is the confidentiality of the communication integral to the relation?  
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3)  Should the state formally recognize and countenance the penitential relation?  
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4)  Would forced disclosure result in an injury that would be greater than the benefit to justice?   
  
Wigmore's view, dubbed the utilitarian view by one scholar, is grounded in the belief that the rights of individual defendants should be sacrificed in order to provide prospective protection of the priest-penitent relationship. These supporters believe confession provides a crucial social function. They have argued that recognition of the privilege is essential because encouraging confession fosters a desirable result and a denial of the privilege would dissuade potential penitents from disclosing misdeeds.  
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On the whole, Wigmore concluded that the privilege should be sustained.  Wigmore's view, dubbed the utilitarian view by one scholar, is grounded in the belief that the rights of individual defendants should be sacrificed in order to provide prospective protection of the priest-penitent relationship. These supporters believe confession provides a crucial social function. They have argued that recognition of the privilege is essential because encouraging confession fosters a desirable result and a denial of the privilege would dissuade potential penitents from disclosing misdeeds.  
 
On the other hand, nonutilitarian supporters of the privilege contend that the privilege should be supported because of the retrospective harm that would result in requiring priests to violate their religious tenets. Under this view the privilege should be approved because it is unfair to put clergy to the "Morton's fork" of having to violate either their religious tenants or secular law. Under this theory, damage to the priest's reputation and career should supersede that of the party seeking forced disclosure.  
 
On the other hand, nonutilitarian supporters of the privilege contend that the privilege should be supported because of the retrospective harm that would result in requiring priests to violate their religious tenets. Under this view the privilege should be approved because it is unfair to put clergy to the "Morton's fork" of having to violate either their religious tenants or secular law. Under this theory, damage to the priest's reputation and career should supersede that of the party seeking forced disclosure.  
  
 
The dangers of forcing priests to disclose the communication are historically well known. Saint Neopmucene, considered a martyr to the seal of the confession in the Catholic Church, refused to divulge to King Wenceslaus IV the contents of the queen's confession. As a result he was thrown into a dungeon, racked and burned with torches and offered riches for his cooperation. Finally he was bound, thrown from a bridge in Prague and suffered a martyr's death. Legend has it that when his tomb was opened 300 years after his death, the only flesh that remained was his tongue.  
 
The dangers of forcing priests to disclose the communication are historically well known. Saint Neopmucene, considered a martyr to the seal of the confession in the Catholic Church, refused to divulge to King Wenceslaus IV the contents of the queen's confession. As a result he was thrown into a dungeon, racked and burned with torches and offered riches for his cooperation. Finally he was bound, thrown from a bridge in Prague and suffered a martyr's death. Legend has it that when his tomb was opened 300 years after his death, the only flesh that remained was his tongue.  
  
regarding the sexual battery of a child under eleven, even though the state had mandatory reporting statutes. He was charged with contempt of court and faced possible jail-time. The legislature, after public outcry, passed an amendment to the mandatory reporting statute specifically exempting priest-penitent communications.
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, a violation of the Sacrament of Confession could result in the church's most severe penalty - excommunication. A brief survey of LEXIS revealed no cases of this happening recently. In one Florida case from 1984, Reverand John Mellish refused to testify regarding confessional communications about the sexual battery of a child under eleven, even though the state had mandatory reporting statutes. He was charged with contempt of court and faced possible jail-time. The legislature, after public outcry, passed an amendment to the mandatory reporting statute specifically exempting priest-penitent communications.
  
 
== Constitutionality of the Privilege ==
 
== Constitutionality of the Privilege ==

Revision as of 10:26, 16 June 2010