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.