Let the priest who dares to make known the sins of his penitent be deposed | Decretum, Secunda pars, dist. VI, c. II
- and he goes on to say that the violator of this law should be made a life-long, ignominious wanderer.
Let the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner: but if he should happen to need wiser counsel let him cautiously seek the same without any mention of person. For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office but that he shall also be sent into the confinement of a monastery to do perpetual penance | Hefele-Leclercq, "Histoire des Conciles" at the year 1215; Mansi or Harduin, "Coll. conciliorum"
Notably, neither this canon nor the law of the Decretum purports to enact for the first time the secrecy of confession. The great fifteenth century English canonist William Lyndwood speaks of two reasons why a priest is bound to keep secret a confession, the first being on account of the sacrament because it is almost (quasi) of the essence of the sacrament to keep secret the confession.
Provided always, That if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him: we do not in any way bind the said minister by this our Constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same) under pain of irregularity.
There are two points to be observed in the canon: First, there is an express exemption from the duty of secrecy where such duty should conflict with one imposed by the civil power under a certain penalty. There does not appear to have been, in fact, at that time any law which made the mere concealment of any crime, including treason, an offence punishable with forfeiture of life. This in no way affects the principle laid down in the canon. The exemption is a marked departure from the pre-Reformation ecclesiastical law on the subject as shown by the pre-Reformation English canons and otherwise. Second, even apart from the exemption, the language used to declare the injunction bears a marked contrast to the language used to declare the secrecy in pre-Reformation days. It is evident that secrecy is not quasi of the essence of confession, as William Lyndwood had declared it to be at the time which he wrote. The notion of secrecy as explained by the Fourth Lateran Council, and the English Councils of Durham and Oxford - which made stringent decrees - seems to have been ended by the English Reformation.
It results from the Submission of the Clergy Act that a canon is void if it contravenes common or statute law, and, accordingly, it becomes void if at any subsequent period a statute inconsistent with it is passed. It does not seem that there was in 1603 any statute to which canon 113 was necessarily contrariant or that any has been passed since. When we have to decide whether or not it conflicted with the common law it must be remembered that many items of the common law must have disappeared or have undergone considerable alteration by such a change in the whole national life as that which was caused by the English Reformation. Rules of canon law and certain precepts of the Church had, undoubtedly, formed some of the stones in the growing fabric of English common law. So, where the practices to which these rules or precepts applied were repudiated or considerably modified one must expect a corresponding cessation or modification of the common law relating to it. Of many such instances confession would be one. Even the established Church of England did not claim for confession absolute inviolability. That said, there has never been any legislation in England, one way or the other, about the disclosure in evidence of religious confession. If the privilege had ceased to be part of the common law, legislation would be necessary to re-establish it. If it survived in the common law it could only have done so through the allowance of it in the Church of England.
The 21st Century has presented its own set of problems and questions. The Church of England has found itself responding to social pressures for greater self-regulation of professions including such matters as a) good practice in pastoral and counseling relationships, b) dealing with data protection issues relating to the keeping of records and c) the importance of clergy being aware of legal obligations on them. On the one hand privacy concerns in the secular world has meant that personal information is to be regarded as presumed confidential. On the other hand, child abuse awareness has meant that clergy must be aware when they are under a duty to disclose information, such as where the protection of children is involved. At the same time, the absolute confidentiality of the 'seal of the confessional' is upheld.
The Book of Alternative Services of the Anglican Church of Canada states: "The secrecy of a confession of sin is morally absolute for the confessor, and must under no circumstances be broken." (page 166)
However, the Church of England in Australia has allowed priests to report penitents' confesssions to the police if a crime has been comitted and there is a likelihood that the penitent will offend again.