Protecting Statements in Catholic Tribunal Proceedings Under the Priest-Penitent Privilege: Cimijotti v. Paulsen Considered

Transcription

1 Florida State University From the SelectedWorks of Chad G. Marzen 2010 Protecting Statements in Catholic Tribunal Proceedings Under the Priest-Penitent Privilege: Cimijotti v. Paulsen Considered Chad G. Marzen, Florida State University Available at:

2 Protecting Statements in Catholic Tribunal Proceedings Under the Priest-Penitent Privilege: Cimijotti v. Paulsen Considered Chad G. Marzen 1 I. INTRODUCTION Therefore, confess your sins to one another and pray for one another, that you may be healed. 2 This quotation from the Letter of James reflects the continuing call of Jesus Christ, the physician of our souls and bodies, for human beings to seek conversion, the forgiveness of sins, and be renewed in the grace of new life. 3 For Roman Catholics, it is through the Sacrament of Reconciliation, a sacrament of conversion, penance, confession, and forgiveness, that one is imparted the love of God who reconciles. 4 The Sacrament of Reconciliation is perhaps the least understood and participated in all of the sacraments, even among lifelong Catholics a 2005 study by the Center for Applied Research in the Apostolate at Georgetown University found that 1 Attorney, Engles, Ketcham, Olson & Keith, P.C., Omaha, Nebraska. J.D., Saint Louis University, 2008; B.A., Grinnell College, The author would like to thank Father Thomas Zinkula, J.D., J.C.L., who has been a mentor to the author in learning about the Roman Catholic ecclesiastical court system as well as the legal profession. He would also like to thank his parents, Dennis and Salud Marzen of Dougherty, Iowa, and his younger brother Christopher and Ryan for their kind, unending support, encouragement, and sacrifices to help make this essay possible. The author remains solely responsible for all in this essay and for any errors which occur. The author can be reached at marzen@alumni.grinnell.edu. 2 James 5: 16 (North American Bible). 3 UNITED STATES CATHOLIC CONFERENCE, THE CATECHISM OF THE CATHOLIC CHURCH (2 nd ed. 1994). 4 Id. at The Catechism notes the sacrament is one of conversion because it makes sacramentally present Jesus call to conversion, the first step in returning to the Father from whom one has strayed by sin. It is a sacrament of Penance since it consecrates the Christian sinner s personal and ecclesial steps of conversion, penance, and satisfaction. It is a sacrament of confession since the disclosure or confession of sins to a priest is an essential element of this sacrament. It is a sacrament of forgiveness since by the priest s sacramental absolution God grants the penitent pardon and peace Finally, it is also a sacrament of Reconciliation because it imparts to the sinner the love of God who reconciles. 1

3 42 percent of Catholics responded they don t attend confession at all. 5 Despite these figures, the Sacrament remains an integral part in the life of the Church and holds its origins from the ministry of the living Jesus Christ. 6 One of the most important elements of the Sacrament of Reconciliation is the seal of the confessional, which obligates clergy to remain perpetually silent concerning the confession of a penitent. 7 While the seal of confession is inviolable, it developed from the time of the early church fathers to a fully recognized canonical privilege within the ecclesiastical laws of the Roman Catholic Church. 8 In addition, the seal is recognized and protected through the common law priest-penitent / clergy-communicant privilege and statutorily codified in all fifty states. 9 The question arises: What if a person makes penitential statements, or non-penitential statements, in the process of a proceeding in a diocesan or archdiocesan tribunal? Would statements made to a priest or representative of a diocesan or archdiocesan tribunal be covered by the priest-penitent/clergy-communicant privilege? 5 Amanda Greene, Sins of Omission: As More Catholics Skip Confession, Some Priests Begin a Campaign to Call Them Home, (last visited September 11, 2010). 6 2 Mark: 1-12 (North American Bible). The most notable story of Jesus Christ s ministry of healing and forgiveness is the healing of the paralytic. Mark states; They [the scribes and Pharisees] came bringing to him a paralytic carried by four men. Unable to get near Jesus because of the crowd, they opened up the roof above him. After they had broken through, they let down the mat on which the paralytic was lying. When Jesus saw their faith, he said to the paralytic, Child, your sins are forgiven. Now some of the scribes were sitting there asking themselves, Why does this man speak that way? He is blaspheming. Who but God alone can forgive sins? Jesus immediately knew in his mind what they were thinking to themselves, so he said, Why are you thinking such things in your hearts? Which is easier, to say to the paralytic, Your sins are forgiven, or to say, Rise, pick up your mat and walk? But that you may know that the Son of Man has authority to forgive sins on earth he said to the paralytic, I say to you, rise, pick up your mat, and go home. He rose, picked up his mat at once, and went away in the sight of everyone. They were all astounded and glorified God, saying, We have never seen anything like this. 7 JOHN C. BUSH and WILLIAM HAROLD TIEMANN, THE RIGHT TO SILENCE: PRIVILEGED CLERGY COMMUNICATION AND THE LAW 39 (1989). 8 Id. 9 Robert John Araujo, S.J., International Tribunals and the Rules of Evidence: The Case for Respecting and Preserving the Priest-Penitent Privilege Under International Law, 15 Am. U. Int l L. Rev (2000). 2

4 In the seminal case of Cimijotti v. Paulsen, the United States District Court for the Northern District of Iowa correctly held that statements to a priest in the course of a tribunal proceeding, even despite the fact the statements were non-penitential, were privileged and nondiscoverable if they corroborate a penitential statement. 10 Despite the positive holding in the Cimijotti case, not all jurisdictions would necessarily meet the same result if their state required that the communication must be penitential in nature. In this article, I consider the ramifications of the Cimijotti decision and argue that all statements, whether penitential in nature or not, should be considered privileged under the clergy-communicant privilege if the statements were made by an individual in the course of a diocesan or archdiocesan tribunal proceeding. The first part of the article examines the origins of the seal of confession in divine law and the historical development of the seal and Sacrament of Reconciliation among the early Church Fathers and later thinkers, including Saint Thomas Aquinas. The second part of this article examines the seal of the confessional in both the 1917 Code of Canon Law and the current 1983 Code of Canon Law. The third part of this article then discusses the priest-penitent/clergy-communicant privilege in the American common law and state statutes and the fourth part briefly outlines the purposes of a diocesan/archdiocesan tribunal. Finally, the article then discusses the Cimijotti decision and concludes that all statements, irrespective of their penitential nature, should be considered privileged under the clergy-communicant privilege if the statements were made by an individual in the course of a diocesan or archdiocesan tribunal proceeding. In addition, the article also proposes that in such situations, the holder of the privilege should be conferred to the priest 10 Cimijotti v. Paulsen, 219 F. Supp.621, (N.D. Iowa 1963). 3

5 or representative working on behalf of the diocesan or archdiocesan tribunal. To rule so best respects the inviolability of the confidentiality of tribunal proceedings, as well as their integrity. II. THE SEAL OF THE CONFESSIONAL: ITS ORIGINS AND DEVELOPMENT IN CATHOLIC THOUGHT While the 1983 Code of Canon Law codifies the seal of the confessional in Roman Catholic ecclesiastical law, the absolute inviolability of the seal is generally regarded to be contained in positive divine law which obliges the faithful to submit their sins to the power of the keys. 11 As the Rev. John Roos indicates, the most common explanation of why the seal of the confessional is contained in positive divine law is that if a penitent s sins were turned against him in the forum outside of the sacrament, then Christ s intention of the sacrament of Reconciliation being a fruitful means of sanctification and salvation would be frustrated and His command would, be, humanly considered, impossible of fulfillment. 12 Saint Thomas Aquinas also accepted the foregoing explanation, but only as a secondary proof. 13 Saint Thomas Aquinas wrote in The Summa Theologica that the outward sacramental actions in the sacrament of Reconciliation are the signs of what takes place privately in the conscience of a penitent who inwardly submits to God. 14 Aquinas contended, God hides the sins of those who submit to Him by Penance; wherefore this also should be signified in the sacrament of Penance, and consequently the sacrament demands that the confession should remain hidden, 11 THE REV. JOHN R. ROOS, J.C.L., THE SEAL OF CONFESSION: A DISSERTATION 1 (1960). 12 Id. at SAINT THOMAS AQUINAS, Of the Seal of Confession in THE SUMMA THEOLOGICA, (last visited September 11, 2010). Aquinas stated, Those things which are done inwardly 14 Id. 4

6 and he who divulges a confession sins by violating the sacrament. 15 Since God doesn t reveal the sins of penitents who confess, Aquinas reasoned that neither should priests. 16 While the seal of the confessional is an integral part of the sacrament of Reconciliation, the nature of the sacrament of Reconciliation has gone through various changes in the Roman Catholic tradition through time. As John Bush and William Tiemann note, the origin of the seal in the early Church after the death of Jesus Christ is obscure. 17 In the early Church, public confession of sins before a congregation was a common practice. The early Christian apologist Tertullian, sometimes known as the Father of the Latin Church, wrote in his treatise Repentance that repentance is to be carried out by an external act by which one confesses sin to the Lord, not indeed as if He did not know it, but because satisfaction is arranged by confession, of confession is repentance born, and by repentance is God appeased. 18 Tertullian noted that confession is a discipline for a person s prostration and humiliation and commands one to lie in sackcloth and ashes, to cover the body with mourning, to cast the spirit down in sorrow, to exchange the sins which have been committed for a demeanor of sorrow. 19 He particularly emphasized the public element of repentance, stating that a penitent should bow before the presbyters, to kneel before God s refuge places, and to beseech all the brethren for the embassy of their own supplication. 20 Although confession of sins and penance was often public before 15 Id. 16 Id. 17 BUSH AND TIEMANN, supra note 7 at TERTULLIAN, Repentance in W.A. JURGENS, THE FAITH FO THE EARLY FATHERS (1970). 19 Id. at Id. 5

7 the early Christian congregations, there is also support for a developing seal of the confessional, even among the early Christians. Even as he accentuated the public nature of penance, Tertullian insisted the knowledge of sins a penitent may have committed was to be confined only to the congregation. 21 Many of the early Christian writers described the sacrament of Reconciliation in terms of healing and metaphorically described the role of priests as physicians. Just as Jesus Christ healed many sinners in his lifetime, especially the paralytic, he entrusted his apostles the ministry of reconciliation. 22 Therefore, bishops and priests are ministers of the sacrament of Reconciliation through virtue of the sacrament of Holy Orders and exercise the role of physicians. 23 Origen, one of the Fathers of the early Church, was one early writer who described the priest as a physician. He depicted sin as a physical ailment and declared that if people conceal their sins, they will suffer an internal urging, and may come close to being suffocated by the phlegm or humor of sin. 24 However, after confession, a penitent vomits out his fault and puts in order what was the whole cause of his illness. 25 Aphraates the Persian Sage, a Father of the Syrian Church, exhorted to clergy in his Treatises that as physicians, the disciples of our illustrious Physician, they should never deny a curative to those in need of healing. 26 While Aphraates also utilized the physician metaphor, he stressed the secrecy of the sacrament for the 21 BUSH AND TIEMANN, supra note 7 at UNITED STATES CATHOLIC CONFERENCE, supra note 3 at Id. 24 ORIGEN, Homilies on the Psalms in W.A. JURGENS, THE FAITH FO THE EARLY FATHERS 204 (1970). 25 Id. 26 APHRAATES THE PERSIAN SAGE, Treatises in W.A. JURGENS, THE FAITH FO THE EARLY FATHERS 303 (1970). 6

8 good of the penitent. Aphraates urged that a priest should not make a confession public, lest because of it the innocent might be reckoned as guilty by our enemies and by those who hate us. 27 A century after Aphraates, Pope Leo I became the first Roman Pontiff to recognize the seal of the confessional. In a letter to the bishops at Compania, Samnium, and Picenum, he noted that concerning the penitence which is demanded by the faithful, one must not read publicly the notes of a written confession on the nature of each individual sin, since it suffices that the state of conscience be indicated in secret confession to the priests alone. 28 In 554 A.D., the Eastern Church also recognized the seal during the Second Synod of Dwin, held in Armenia. The twentieth canon stated, A priest who reveals the confession of the penitents shall be deposed with anathema. 29 However, over the next several centuries, little documentary evidence exists which refers to the seal of the confessional. 30 Pope Innocent III called for an ecumenical council toward the end of his pontificate, and in 1215 the Fourth Lateran Council was assembled. Pope Innocent presented seventy canons on the most important points of the dogmatic and moral theology to the council. Included among the canons was a positive affirmation of an obligation for clergy to observe the seal of the confessional. Canon 21 of the Council placed an obligation among Catholics who have attained the age of reason to confess their sins at least once a year, but also importantly placed the strict 27 Id. 28 BUSH AND TIEMANN, supra note 7 at Id. at Id. 7

9 penalty of relegation to a monastery for penance for the duration of one s life for any cleric who violated the seal of the confessional. The Canon states: Let the priest be discreet and cautious that he may pour wine and oil into the wounds of the one injured after the manner of a skilful physician, carefully inquiring into the circumstances of the sinner and the sin, from the nature of which he may understand what advice to give and what remedy to apply, making use of different experiments to heal the sick one. But let him exercise the greatest precaution that he does not in any degree by word, sign, or any other matter make known the sinner, but should he need more prudent counsel, let him seek it cautiously without any mention of the person. He who dares reveal a sin confided to him in the tribunal of penance, we decree that he be not only deposed from the sacerdotal office but also relegated to a monastery of strict observance to do penance for the remainder of his life. 31 As the time of the Reformation approached, nothing in church doctrine or practice derogated from the necessity of the seal of the confessional. In fact, priests sacrificed their lives to preserve the seal. 32 Saint John Nepocumen was one such martyr in the 14th century. A pious and devout priest, he was sought out by the Empress Jane of Bohemia, the wife of King Wenceslaus IV, to hear her confessions. 33 King Wenceslaus IV loved the Empress greatly, but was often capricious and changeable and often abandoned himself to fits of jealousy. 34 The King grew jealous of Saint John, and made her [the empress Jane s] virtuous conduct an argument for his suspicions. 35 King Wenceslaus attempted to ascertain the contents of the Empress s confessions, so he could know of her thoughts concerning him. 36 Saint John 31 The Canons of the Fourth Lateran Council (1215), Canon 21 in the MEDIEVAL SOURCEBOOK, (last visited September 11, 2010). 32 Araujo, supra note 9 at Eternal Word Television Network, Saint John Nepocumen, (last visited September 11, 2010). 34 Id. 35 Id. 36 Id. 8

10 Nepocumen refused, responding to the King that to reveal her confession would be a sacrilege to both reason and religion. 37 In response, the King ordered the Saint tortured, thrown in a dungeon, and eventually drowned in the Moldau River on the Vigil of the Feast of the Ascension on May 16, Saint John Nepocumen s life is a model for all priests today which emphasizes the gravity of the obligation for clergy to preserve the seal of the confessional. Canonists and theologians have been unanimous in stressing the essential element of the seal of the confessional to the sacrament of Reconciliation since the fifteenth century. 39 The 1917 and 1983 Code of Canon Law would later both codify the divine law of the seal of the confessional within the ecclesiastical laws of the Church and serve to protect its vital purposes. III. THE PURPOSES OF THE SEAL OF THE CONFESSIONAL AND ITS INCLUSION IN THE CODEX IURIS CANONICI OF 1917 AND 1983 There are two main purposes to the seal of the confessional: the first and most fundamental purpose is the protection of the Sacrament of Reconciliation itself, and the other is for the good of the penitent. 40 Anthony Cardinal Bevilacqua states the former purpose is a graver obligation since if the Sacrament was rendered difficult to the faithful they would be deterred from approaching it, thereby undermining the Sacrament itself to the great spiritual harm of the faithful, as well as to the entire Church. 41 He also recognizes that the seal is for the good of the penitent, an implicit contract of silence between confessor and penitent not to expose the 37 Id. 38 Id. 39 BUSH AND TIEMANN, supra note 7 at Bevilacqua, Cardinal Anthony, Confidentiality Obligation of Clergy from the Perspective of Roman Catholic Priests, 29 Loy. L.A. L. Rev (1996). 41 Id. 9

11 reputation of the penitent to detraction through the revelation of occult sins based upon the virtue of justice. 42 The seal is absolute, even in the case where the good of justice might be served. 43 For instance, there might be a situation where a public sinner confessed a particular sin with great sorrow and amendment a relaxation of the seal might work to the penitent s credit and to the good of justice rather than discredit in this particular instance. 44 However, the good of religion and of the sacrament trumps any possible exception since the spiritual good of the Christian community might potentially be endangered by exceptions. 45 As Father Roos further contends, Penitents would always fear that further exceptions would be presumed without sufficient justification. 46 In addition, since the seal s origins are derived from God s divine law, no exceptions could be legislated, even by the Roman Pontiff. The seal of the confessional was codified in ecclesiastical legislation in the 1917 Codex Iuris Canonici. The 1917 Code contained protections both for the fundamental seal of the confessional and also for the other purpose of the good of the penitent. Canon 889, 1 of the Code states: The sacramental seal is inviolable; therefore a confessor will diligently take care that neither by word nor by sign nor in any other way or for any reason will he betray in the slightest anyone s sin. 47 Another canon in the Code specifically gave shield to the good of the 42 Id. 43 Id. at Roos, supra note 11 at Bevilacqua, supra note 40 at Roos, supra note 11 at THE 1917 OR PIO-BENEDICTINE CODE OF CANON LAW IN ENGLISH TRANSLATION, 1917 Codex Iuris Canonici, Canon 889, 1, 314 (2001). 10

12 penitent. Canon 890, 1 states: Any use to the detriment of the penitent or knowledge acquired by confession is entirely prohibited to the confessor, even excluding all danger of revelation. 48 Severe penalties for violation of the seal of confession were present in the 1917 Code; direct violations resulted in the penalty of excommunication, while indirect violations resulted in less strict, though severe, penalties. The penalties were outlined in Canon 2369, 1 which states: A confessor who presumes to violate directly the sacramental seal remains in an excommunication most specifically reserved to the Apostolic See; but one who only indirectly [violates the seal] is liable to the penalties mentioned in 2368, Indirect violations of the seal were subject to Canon 2368, 1, which essentially suspended clergy from many of their ministerial functions, including the celebration of Mass and hearing sacramental confessions. Canon 2368, 1 stated, Whoever commits the crime of solicitation mentioned in Canon 904 is suspended from the celebration of Mass and from hearing sacramental confessions and even, for the gravity of the derelict, is declared incapable of receiving them, is deprived of all benefices, dignities, active and passive voice, and is for all of these declared incapable, and in more serious cases is also subject to degradation. 50 The current 1983 Code of Canon Law protects the seal of the confessional in even stronger words than the 1917 Code. Canon 983, 1 provides for the confidentiality of the seal of the confessional in stating, The sacramental seal is inviolable; therefore, it is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason Id. at 315 (Canon 890, 1). 49 Id. at (Canon 2369, 1). 50 Id. at 751 (Canon 2368, 1). 51 THE CODE OF CANON LAW: A TEXT AND COMMENTARY, 1983 Codex Iuris Canonici, Canon 983, 1, 691 (James A. Coriden, Thomas J. Green, and Donald E. Heintschel, eds. 1985). 11

13 One commentary to this Canon mentions that the 1983 Code utilizes the word nefas ( crime ), which is not present in the 1917 Code, to stress the gravity of a violation of the norm. 52 The commentary also states that the secrecy of the seal of the confessional is total the Canon does not make a distinction among the matters confessed, whether the sinful sanction itself or attendant circumstances, or the acts of satisfaction or penances imposed. 53 Therefore, the seal of the confessional not only covers the actual confession of sins, but also covers the penance imposed by the confession, and other attendant circumstances surrounding it. Just as in the 1917 Code, the 1983 Code contains a Canon protecting the good of a penitent. Canon 984, 1 states: Even if every danger of revelation is excluded, a confessor is absolutely forbidden to use knowledge acquired from confession when it might harm the penitent. 54 In addition, the 1983 Code also retains the distinction between direct and indirect violations of the seal of the confessional. Direct violations of the seal of the confessional result in an automatic latae sententiae excommunication, while indirect violations are punished according to their seriousness. 55 Canon 1388, 1 states: A confessor who directly violates the seal of confession incurs an automatic (latae sententiae) excommunication reserved to the Apostolic See; if he does so only indirectly, he is to be punished in accord with the seriousness of the offense. 56 While the foregoing shows an explicit privilege for the seal of the confessional exists in ecclesiastical law, the common law and individual state jurisdictions have responded generally to 52 Id., Commentary on Canon 983, Id. 54 Id. at 691(Canon 984, 1). 55 Id. at 927 (Canon 1388, 1). 56 Id. 12

14 protect the seal of the confessional and the priest-penitent, or clergy-communicant, privilege. In some cases, both canon and civil law may interact to produce difficult questions for judges to answer. IV. THE PRIEST-PENITENT PRIVILEGE IN THE AMERICAN COMMON LAW AND IN STATE STATUTES Courts in the United States have recognized the priest-penitent privilege since the landmark case of People v. Phillips in The Phillips case, decided by the New York Court of General Sessions, involved a Catholic priest, Father Anthony Kohlmann, who was given stolen goods from a penitent during confession. 57 After hearing the confession, Father Kohlmann turned in the stolen goods to the authorities, who questioned him regarding the identity of the individual who turned over the goods. 58 Father Kohlmann objected to the question about the identity of the penitent, citing the seal of the confessional. 59 The Court upheld Father Kohlmann s canonical obligation to silence, stating eloquently: After carefully examining this subject, we are of the opinion that such a witness ought not to be compelled to answer. The benevolent and just principles of the common law guard with the most scrupulous circumspection, against temptations to perjury, and against a violation of moral feeling, and what greater inducement can there be for the perpetration of this offence, than placing a man between Scylla and Charybdis, and in such an awful dilemma that he must either violate his oath, or proclaim his infamy in the face of day, and in the face of day, and in the presence of a scoffing multitude? 60 In federal jurisprudence, the United States Supreme Court has never explicitly addressed a case involving the applicability of the confidentiality of the seal of the confessional or the 57 Araujo, supra note 9 at Id. 59 Id. 60 Id. 13

15 priest-penitent privilege in the common law tradition. Although no case has addressed it as a main question, the Supreme Court has on three different occasions given its recognition and approval to the privilege. 61 In 1875, Justice Stephen Johnson Field noted in dictum in Totten v. United States that public policy forbids disclosure of matters in court which the law deems confidential, including suits which would require a disclosure of the confidences of the confessional. 62 For nearly the next 100 years, the Supreme Court fell silent on the priestpenitent privilege. In United States v. Nixon, the Court stated that communications between a President and staff members are presumptively privileged, but there are situations where a prosecutor s need for tape recordings and documents trumps the President s general interest in confidentiality. 63 The Court reaffirmed the priest-penitent privilege in dictum, stating that generally an attorney or a priest may not be required to disclose to disclose what has been revealed in professional confidence. 64 Finally, the Court most recently in Trammel v. United States explained the policy of the priest-penitent privilege and reindicated its approval. The Court remarked that the privilege is rooted in the imperative need for confidence and trust. 65 Declaring the main purpose of the privilege in civil law, it declared, The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation 61 Michael Mazza, Should Clergy Hold the Priest-Penitent Privilege?, 82 Marq. L. Rev. 178 (1998). 62 Totten v. United States, 185 U.S. 107 (1875). 63 United States v. Nixon, 418 U.S. 708 (1974). 64 Id. at Trammel v. United States, 445 U.S. 51 (1980). 14

16 and guidance in return. 66 With these statements, the Court in Trammel also echoed the rationale for the secondary canonical purpose of the seal of the confessional for the good of the penitent. Today, all fifty states in the United States have adopted a statute codifying the priestpenitent or clergy-communicant privilege. 67 Variations exists among the statutes in some states, spiritual advice is also included among the communications protected by the privilege. 68 In nearly all the statutes, ministers who perform sacerdotal functions are covered. Finally, there is a question in many statutes of who holds the privilege in some states, only a minister holds the privilege, in others, the penitent, and in others both the penitent and the member of the clergy hold the privilege. 69 Under many statutes, it is questionable whether a statement made to a member of the clergy in an diocesan or archdiocesan tribunal proceeding would be covered. V. THE PURPOSES OF A DIOCESAN/ARCHDIOCESAN TRIBUNAL Similar to civil courts, the Roman Catholic Church has courts to handle cases pursuant to the laws of the Church, most commonly the 1983 Code of Canon Law. 70 In each Diocese or Archdiocese in the United States, a Metropolitan Tribunal is the ecclesiastical court which handles matters concerning church law. 71 Today, most cases before a Metropolitan Tribunal deal 66 Id. 67 Norman Abram, Addressing the Tension Between the Clergy-Communicant Privilege and the Duty to Report Child Abuse in State Statutes, 44 B.C. L. Rev. 1127, 1133 (2003). 68 Id. at Anthony Merlino, Tightening the Seal: Protecting the Catholic Confessional from Unprotective Priest-Penitent Privileges, 32 Seton Hall L. Rev. 655, 671 (2002). 70 Archdiocese of New York, FAQ Annulments, (last visited September 11, 2010).. 71 Id. 15

17 with the validity of the Sacrament of Marriage, as persons who believe their marriages were invalid according to the teachings of the Church may petition the Court to declare the marriages null and void. 72 In a marriage annulment case, the proceedings begin with a preliminary stage in which the petitioner (person seeking the annulment) makes an inquiry which a parish priest or other duly authorized pastoral minister. 73 A priest or other official authorized by a Bishop or Archbishop, called an advocate, is then appointed by the Tribunal to determine whether sufficient grounds for annulment exist. 74 If sufficient grounds exist, then the case moves to a more formal stage. 75 At the formal stage, formal testimony is given, either in writing or orally at a formal hearing. 76 The formal hearing is not open to the public and no confrontation of the parties or witnesses occurs. 77 The Judge or Judges(s) assigned to the case then make a final decision as to whether sufficient grounds exist for an annulment to be granted. 78 Irrespective of the decision, each ruling is reviewed by an appellate Court of Appeal. 79 If the Court of Appeal reverses the lower court, 72 Id. 73 Id. 74 Id. 75 Id. 76 Id. 77 Id. 78 Id. 79 Id. 16

18 then the case is automatically forwarded to the Roman Rota; if the petitioner or respondent disagrees with the decision, then an appeal can be sought before the Roman Rota. 80 Throughout the entire process, confidentiality is required. 81 Although confidentiality of Roman Catholic ecclesiastical proceedings is required under canon law, the Cimijotti case serves as a caution that whether the clergy-communicant privilege applies to all statements made in the course of ecclesiastical proceedings is not necessarily a straightforward decision for courts to make. VI. THE CIMIJOTTI DECISION The United States District Court for the Northern District of Iowa in Cimijotti v. Paulsen addressed the question of whether non-penitential statements to a priest in the course of a tribunal proceeding were privileged. In Cimijotti, the Plaintiff (Eberhard Cimijotti) plead a defamation cause of action in which he alleged the Defendants (Lauretta Cimijotti, Clarice Sprout and Frances Paulsen) made defamatory statements in attempting to aid Lauretta Cimijotti to obtain sanctions from the Catholic Church for a civil action against the Plaintiff. 82 The Plaintiff took the depositions of the defendants, the Reverend Clarence S. Kruse, and the Reverend Joseph Wheeler to identify the contents of the statements made to the Rev. Kruse and the Rev. Wheeler. 83 The deposed refused to answer questions, partially relying upon the First Amendment of the United States Constitution Id. 81 Id. 82 Cimijotti v. Paulsen, 219 F. Supp. at Id. at Id. 17

19 The Court addressed the applicability of the priest-penitent privilege. In Iowa, the elements of a valid assertion of the privilege included: 1) The statements were made in the usual course of the discipline; 2) That the person claiming the privilege is allowed by the statute to claim it; 3) That the communication was secret; and 4) That the statement be penitential in character and made by the penitent. 85 The Court found there was no question that Lauretta Cimijotti s statements to the Rev. Kruse and the Rev. Wheeler were privileged since they were penitential in character, and she was the penitent. 86 However, the Court recognized there was a question as to the whether the statements made by Clarice Sprout and Frances Paulsen were privileged, since they were not penitential in character. 87 The Court cited an earlier Iowa decision, Ruetkemeier v. Nolte, 161 N.W. 290 (Iowa 1917), in which the Iowa Supreme Court held that the priest-penitent privilege applied to any person whose duty to the chief recipient allowed them to know of the communication. 88 The Court reasoned that since the Cimijotti statements, which were penitential and privileged, could not remain so if those who corroborated this testimony (the Sprout and Paulsen statements) stated what it was they corroborated, all of the statements were covered by the privilege. 89 While the statements made in the course of the Archdiocesan Tribunal proceedings remained privileged, Cimijotti appears limited to situations where non-penitential statements 85 Id. at Id. 87 Id. at Id. at Id. 18

20 corroborate penitential statements; it does not appear to apply to all non-penitential statements in particular. The Court mentioned that at least in Iowa, the penitential character of the privilege is not a requirement. 90 However, the Court also recognized there is a split of authority as to whether a statement must be penitential to be covered by the privilege. 91 VII. CONCLUSION Cimijotti leaves open this question: how would a Court have ruled in the case where a statement is made in the course of an Archdiocesan Tribunal proceeding to a priest, is nonpenitential, and does not corroborate a penitential statement made by another? Is the statement covered by the priest-penitent/clergy-communicant privilege? To protect the inviolability of confidentiality of diocesan or archdiocesan tribunal proceedings, any statement made to a priest or any other representative working on behalf of a tribunal, irrespective of whether the statement is penitential, should be regarded by any Court examining the question of privilege to be privileged under the clergy-communicant/priestpenitent privilege. Furthermore, in the case where statements are made to a priest or any other representative working on behalf of a tribunal, the holder of the clergy-communicant/priest-penitent privilege should be conferred to the priest or representative working on behalf of the diocesan or archdiocesan tribunal. Cardinal Anthony Joseph Bevilacqua, the former Archbishop of the Archdiocese of Philadelphia, has argued that civil legislation which only provides a penitent the 90 Id. 91 Id. 19

21 holder of the priest-penitent privilege is flawed. 92 The statutes are flawed as compared to canon law because by holding that the penitent holds the privilege, the secondary purpose of the seal of the confessional, which is the good the penitent, is recognized to the exclusion of the religious and sacramental dimension where no exception can be made. 93 As Bevilacqua writes, by failing to recognize both dimensions of religious confidences, courts, legislators and others run the risk of equating confidential communications between a communicant and minister as merely another in a series of professional secrets. Such thinking totally ignores the religious dimension of these confidences, as well as poses a grave threat to the freedom of practice of religion. 94 All participants in a diocesan or archdiocesan tribunal proceeding should be able to rest assured their confidential communications are covered by the clergy-communicant/priestpenitent privilege. The requirements of civil law and canon law can certainly be reconciled by the drafting of state statutes which provide that any statement made to a priest or other representative working on behalf of a tribunal, irrespective of whether the statement is penitential, is privileged under the clergy-communicant/priest-penitent privilege and the holder of the privilege would remain in the hands of the priest or other representative working on behalf of the tribunal. To do so respects both civil law and canon law as well. 92 Bevilacqua, supra note 40 at Id. 94 Id. at