Our Boosters are matching gifts up to $45,000. We have $32,467 to go. Your gift today will count twice!
Click here to advertise on CatholicCulture.org

The two-edged nature of sacramental privilege

By Diogenes (articles ) | Oct 30, 2003

Attorneys prosecuting convicted child-rapist Paul Nolin for the murder of 20-year-old Jonathan Wessner will ask a judge to compel testimony from two priests who were friends of the accused murderer. The interesting twist is that at least one of the priests is claiming a clerical privilege of confidentiality.

[Fr. Bernard] Kelly, 70, and Nolin, 39, were allegedly involved in a sexual relationship, which could hinder Kelly's claims that their conversations were protected by the rules of the church. Nolin's attorney, Robert Nolan, denies any sexual relationship between the two.

It goes without saying that, if Nolin did in fact make a confession to Kelly, Kelly cannot break the seal by testifying about the matter of the confession, even if he is held in contempt of court for refusing to testify.

Yet there's a hypothetical (I repeat, hypothetical) situation that is more intriguing. Imagine -- just for the sake of argument -- that Nolin did not make a confession to Kelly and that Kelly is using the confidentiality exemption to avoid giving testimony he'd find personally damaging or embarrassing. Wouldn't a false appeal to sacramental secrecy be itself an abuse of the sacrament?

Suppose further that either 1) Kelly knows that Nolin is innocent of Wessner's murder, or 2) Kelly doesn't know whether Nolin is innocent or guilty of Wessman's murder. Isn't it the case that, were Kelly to hide behind sacramental privilege -- or more generally "priestly privilege" -- in refusing to testify, he would in effect be bearing false witness against Nolin? That is, by implying that his silence is obligatory in virtue of Nolin's confession, Kelly would be sending a signal that Nolin had indeed something inculpating to confess. Even if a judge were to instruct the jury that no conclusions should be drawn by a refusal to testify, it's hard to erase the general impression thereby created. But leaving aside the question of how Kelly's privilege claim affects Nolin's chances in the courtroom, that claim is nonetheless a public act, with enduring consequences for Nolin's reputation.

By analogy, imagine a wife who knows her accused husband is innocent of a murder but who, for reasons of her own, wants his reputation to suffer. If she refused to testify in court on the grounds of spousal privilege, she would be helping to damage her husband, not exonerate him, in the public eye. The point with respect to the Cape Cod trial is that Father Kelly, whatever the facts of the matter, is taking a big responsibility upon himself by his invocation of the seal.

An appeal from our founder, Dr. Jeffrey Mirus:

Dear reader: If you found the information on this page helpful in your pursuit of a better Catholic life, please support our work with a donation. Your donation will help us reach seven million Truth-seeking readers worldwide this year. Thank you!

Our Fall Campaign
Progress toward our year-end goal ($117,141 to go):
$150,000.00 $32,858.98
78% 22%
Sound Off! CatholicCulture.org supporters weigh in.

All comments are moderated. To lighten our editing burden, only current donors are allowed to Sound Off. If you are a donor, log in to see the comment form; otherwise please support our work, and Sound Off!

Show 1 Comments? (Hidden)Hide Comments
  • Posted by: - Oct. 30, 2003 1:41 PM ET USA

    To muddy the waters even more - if Kelly and Nolin had a sexual relationship, Kelly could not absolve Nolin in confession (Canon 977). But if Nolin attempted to confess to Kelly I think anything said there would still be covered under the Seal - even if absolution could not be given. But it is troubling that if there were no confession, the Sacramental Seal is being used to cover up something else. A tangled web indeed...!

Fall 2014 Campaign
Subscribe for free
Shop Amazon
Click here to advertise on CatholicCulture.org

Recent Catholic Commentary

Contentious Spirits, Beware! 14 hours ago
And here's another very old story: the secular media don't understand Catholic affairs October 29
How not to be persuasive October 29
Francis the Man, Francis the Pope October 28
Clarifying what it might mean for a pope to wish to change Catholic doctrine October 28

Top Catholic News

Most Important Stories of the Last 30 Days
Key synod report calls for 'gradualism' in Church response to irregular family situations CWN - October 13
As synod concludes, bishops issue message, approve document; Pope weighs in CWN - October 20
Synod of Bishops opens with Mass in St. Peter’s Basilica CWN - October 6