test case

By Diogenes (articles ) | Dec 15, 2005

Here's a fascinating conundrum thrown up by The Crisis, which has moral, canonical, ecclesiastical, and legal ramifications. Minus a couple key details, it's set forth pretty clearly in an article in the Seattle Times.

In brief: James Poole is a Jesuit child molester. His provincial superior from 1990 to 1996 was Fr. Stephen Sundborg, S.J., now president of Seattle University. Jesuits have a conversation with their superiors called a "manifestation of conscience," whose content the superior is obliged to keep secret. Sundborg is refusing to testify about what he claims Poole told him during the manifestation. Victims and their attorneys are crying foul. To the article:

Sundborg, now the president of Seattle University, has refused to testify at a deposition about the meetings he had with Poole -- which Jesuits call "manifestations of conscience." Sundborg said his talks with Poole occurred behind the veil of confessional privilege.

Sundborg said he was compelled to respect the confidentiality of his past job as provincial, the top Jesuit in the Northwest. But if Poole had disclosed criminal behavior during a manifestation, Sundborg said, he would have tried to make it public.

"To give the impression that I would not have acted on it to protect children is absolutely false," he said.

Note that Sundborg does not claim that Poole made a sacramental confession to him, but only that their talks took place "behind the veil of confessional privilege" -- this privilege (immunity from the duty to testify) obtaining in civil law. To the article again:

Manifestations of conscience are particular to Jesuits, the largest order of the Catholic Church. The yearly meetings between a priest and his superior are a process in which "the spiritual director or the major religious superior can be approached by anyone of the Jesuits for spiritual direction," said William Bassett, a law professor at the Jesuit-run University of San Francisco. "It's not the same thing as going to confession, but it is very close," he said. Canon law and Jesuit norms mandate strict confidentiality of manifestations, to ensure total transparency between priests and their superiors.

Bassett is confusing spiritual direction with the manifestation of conscience here, but some measure of confidentiality applies to both. Yet, as is suggested from what follows, this confidentiality differs in purpose and scope from the seal of confession:

In his deposition, taken in late October, Sundborg was asked if he would breach the need for confidentiality and call police if a priest admitted to raping and beheading a child.

No, Sundborg answered.

It's unclear whether the admission is understood to take place in confession or in manifestation here. On the former assumption, Sundborg's answer is correct: the confessor cannot betray his penitent, even for a good reason.

On Wednesday, Sundborg said he would encourage the priest to make the same admission outside of the so-called manifestation and then would have called police.

In this circumstance, Sundborg would be encouraging, not commanding, his subject to approach him outside the internal forum (confession or manifestation). Then Sundborg would be free to inform persons who could prosecute the perp, protect others, begin therapy, etc. But read on:

If the priest refused, Sundborg said, a provincial could use the information to restrict a priest's ministry and send him to treatment.

This is the crunch point. If Sundborg restricted his subject's ministry and sent him to therapy (both orders, note, not suggestions), he would be acting in the public realm -- even against the will of his subject -- on knowledge gained in the internal forum via manifestation. Here's a clear difference from confessional practice, where the confessor cannot act at all on such knowledge unless released from his obligation of secrecy by the penitent in a context outside the sacrament.

The point at issue is not Sundborg's right to restrict his subject's ministry, etc. He could give any command, for any reason or none, and -- provided the command did not involve sin -- the subject is obliged to obey. The interesting question is whether Sundborg's contemplated action -- were it carried out -- counts as a betrayal of internal forum secrecy and, if it does, whether Sundborg thereby forfeits his privilege of immunity from having to testify. Since he was free not to act in public on information told in confidence, the choice to do so anyway would put him in a curious position.

But did he so act? That's not at all clear from the article. Sundborg only said he could have acted, and strongly implied ("To give the impression that I would not have acted on it to protect children is absolutely false") that he would have seen it as his duty to act -- i.e., in a manner short of direct disclosure of Poole's manifestation. By his own admission Poole was sent for therapy to Jemez Springs because of allegations of abuse -- and that in 1994, within the period of Sundborg's provincialate, yet Sundborg may have been acting on the allegations and in the face of Poole's denial.

It's entirely possible that Poole admitted to Sundborg nothing criminal at all, and that Sundborg's refusal to testify is simply a defense of the Jesuit manifestation of conscience -- no different in principle from any priest's refusal to reveal a penitent's confession. It's Sundborg's volunteered hypothetical that's at issue: his insistence that he would have acted on a confidential criminal admission 1) in the public arena, 2) for purposes of justice and healing, 3) against the will of his subject. With that highly peculiar notion of secrecy in play, he has a tough case to make for keeping mum.

I'm stumped. Any ideas, folks?

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  • Posted by: extremeCatholic - Dec. 18, 2005 12:10 AM ET USA

    I believe civil law is relevant: The recognition of the the seal of the confessional is there because confession is integral to the Catholic faith (and other religions with a penitential practice). It is a manifestation of religious freedom. Had the Jesuits sought the inclusion of manifestation of conscience in the law, then they might have a case. The closest analogy here is to a supervisor/employee conversation which binds the supervisor to non-disclosure for employee privacy reasons.

  • Posted by: Deacon Bart - Dec. 16, 2005 3:42 PM ET USA

    It seems civil law here is irrelevant. If bound by the seal, no action is possible. If not so bound, action is demanded under pain of a serious sin of omission. Is a confessor ever free to act in the public forum? If a seminarian confesses to murder, can the confessor prevent him from being ordained? I don't know but it does seem to be the issue.

  • Posted by: Ignacio177 - Dec. 16, 2005 3:00 PM ET USA

    NÂș 155 paragraph 2 of the Complementary Norms of the Society of Jesus says: What is heard in the account of conscience absolutely cannot be to manifested to anybody in any manner, nor directly nor indirectly, if there is not expressed consent by he who gives the account. -- The expert on canon law and jesuit law says that Fr. Sundborg's argument can be sustained. That is that the account of conscience is similar to confession but it is not confession. In confession the priest cannot tell what he heard nor can he act on it. The account is secret like confession the superior cannot say what he heard, however it is different in that he may act on what he heard for the good of those concerned without revealing the content of the account of conscience. Thus Fr. Sundborg could have acted to protect the children if it was revealed in the account of conscience, but he can never say what he heard. The question is if a civil court will accept this practice.

  • Posted by: - Dec. 16, 2005 1:29 PM ET USA

    I like your reasoning. If Sundborg was free to publicly act on information obtained during the manifestation, it seems that the manifestation is not truly secret, and that the no confessional privilege should apply. Admittedly, however, I'm not sure how the civil law treats other confessional privileges such as the psychiatrist-patient privilege. It could be that those privileges also have exceptions but nevertheless remain inadmissible in a court.

  • Posted by: John J Plick - Dec. 16, 2005 12:48 PM ET USA

    If the Church as a whole would give appropriate penances and impose reasonable consequences this "issue" would NOT exist at all. This entire thing is nonsensical and a gross embarrassment to any sincere Roman Catholic. Since when did the "judicial" arm of the Church (confessors as well) begin to trivialize sin of this nature?? To think, that we now discuss the "scandal" of "concealing" heinous crimes IN THE CHURCH from the civil government because THEY take them more seriously! Mercy!!

  • Posted by: Tony D - Dec. 15, 2005 8:18 PM ET USA

    "Manifestations of conscience!?" I thought they stopped giving Jesuits consciences about the time they started crossing their fingers as they took the oath of loyalty to the Pope...

  • Posted by: Ignacio177 - Dec. 15, 2005 3:07 PM ET USA

    Uncle Di Let me ask a top Jesuit expert on the constitiutions of the Society and Canon Law who just happens to be in the city. I get back to you