SECRECY. – Materially understood, a secret is the same as a hidden thing; formally understood, it is the knowledge of that same thing with the obligation not to disclose or communicate it to others.
OUTLINE:
I. General Notion
II. Sacramental Seal (of Confession)
III. Secret of the Holy Office
IV. Professional Secret.I. GENERAL NOTION
Without doubt, man does not have only the right of ownership over external things or the free disposal of the members of his body; he also has a true and proper dominion over his own ideas and actions. Of these, some are so intimate and personal that, by their very object, they demand to be kept hidden from others (e.g., the intimate relations of the soul with God). And even if news of them should leak out to others, it is natural that the news be kept circumscribed, at least until it enters into the realm of public interest or the common good. Other ideas and actions, however, are not so strictly personal as to demand by their nature this reserve or preservation of secrecy; but the demand arises from extrinsic circumstances, for example, to avoid harm to the agent or to third parties. Finally, some ideas or actions of others demand to be kept in an atmosphere of reserve because a commitment or promise to this effect has been made, or because the news has been communicated for a private interest to persons who are commonly bound to secrecy. According to the different source from which the obligation of secrecy can arise, one speaks of natural, promised, and entrusted secrecy.Natural secrecy includes the first and second categories of information, in which the object itself demands secrecy, either because they concern ideas and actions that have a strictly personal and private order or because they concern ideas or actions whose divulgation could harm either individual or common good (there is, for example, the good name to be preserved, a harm to be avoided, or an aid to be given). Entrusted secrecy includes information known through communication made by one who was in possession of the information, with an explicit or implicit pact that the information would not go further. Promised secrecy includes information for which the recipient has committed himself to keep the knowledge circumscribed to himself or to a few other persons.
So far, the problem has been considered from a predominantly personal point of view: the right that a person has over his ideas and actions and also over his own reputation (v.). The problem of secrecy, however, is connected with other grave problems, namely, that of language and the communication of ideas. Language is made precisely for the communication of ideas among men: what, then, are the relations between the communication of ideas, language, and secrecy? From this point of view, three groups of questions deserve particular attention: those concerning the obligation to speak or to remain silent, those concerning the conduct to be observed when there is an obligation and the faculty to remain silent, and those concerning the attitude to be taken toward the news of others.
1. OBLIGATION TO SPEAK AND TO REMAIN SILENT
It is well known that man, among other things, has the faculty to express his own thoughts or his own states of mind. It is also well known that he can do this only by means of signs; he is not, in fact, able to transmit directly the content of his judgments and his reasoning, the object of his knowledge and his reflections. It is finally known that the signs he uses are substantially free. The transmission of thought is not a necessary fact, an ineluctable phenomenon that imposes itself fatally on the thinking man. It is possible for one to have a thought and not manifest it; it can even happen that one expresses something that he does not have; it is possible, in other words, that thought lack external expression, and, in the case that this exists, it is possible that it be in conformity with thought and reproduce it, or also that it be different and conceal II. Looking more deeply, one can say that men are very reticent to communicate about themselves and others things that they fear may bring harm to their interests or to their reputation; they are, instead, quick to say what they think may benefit them; indeed, in the latter case, they easily invent what is not true, and, in the former, they even deny what is true, lying in both cases, though in different ways. If one finally considers the usual consequences that follow when one tells the truth and when one lies, one finds that they are very different; they depend on what is said (it is not the same to say something pleasant or something unpleasant); on the manner in which it is said (it is not the same to say something inconsiderately and without prudence as it is to say it with regard and refinement); on habitual conduct (an isolated lie usually does not suffice to destroy a person’s credibility, just as an isolated truth does not suffice to restore it to one who has lost it; the habit of lying takes away credibility just as the habit of truth gives it in great measure).
From the phenomena indicated and from what has been said above about secrecy, a complex of problems arises. Is it lawful in some cases to keep one’s thought to oneself? Are there cases in which it is necessary to do so? Can one go so far as to alter one’s thought, that is, to lie? As one sees, these are the grave moral problems of secrecy and lying. Here, these latter are deliberately set aside (for which V. LYING) and attention is focused on those of silence or secrecy.
Already on the basis of natural right alone, one can say that, since speech is a human faculty, it is subject to the norm that governs the morality of man’s faculties, namely, the harmonious development of the person, in total subordination to God, in the use of things, in respect and love for other human creatures, or – to use the words of Christ, which undoubtedly apply also to the faculty of speech – love of God and of neighbor. Everyone, therefore, will be free to say or to keep silent about what does not harm the person and does not contradict either the submission due to God or the justice and love due to one’s brothers; one will, instead, be obliged to say what is necessary for the good of oneself and of others and to keep silent about what harms any of the persons indicated.
It is not always easy, however, to see how to apply these principles concretely. Consider, for example, the sphere of speaking to children, especially on matters of sexual initiation, or speaking to the gravely ill, etc. What is good to say to all of these? Each of the solutions chosen – to say everything, to say nothing, or to say only part – has advantages and disadvantages, and it is not always clear in concreto which is the good one. Indeed, more than once, it will not be possible to obtain simultaneously the good of all. In these cases, recourse to the well-known principle of the double effect, or of the greater good or lesser evil, which has such wide application in the concrete circumstances of human life, will be inevitable. In this matter, the two terms of comparison are often public interest or private interest; fidelity to a promise or aid to one’s neighbor. The greater good to be observed often takes the name of excusing cause, which dispenses from secrecy. The social importance of the theme could not fail to draw the attention of civil and ecclesiastical legislators. Both legislations take care to establish a minimum of cases in which they make it obligatory to speak or to remain silent.
The obligation to speak – and to tell the truth – acquires a singular prominence and gives rise to particular problems in the field of procedural law. Since judicial
Judicial proceedings, both civil and criminal, have as their primary duty the ascertainment of the truth, which is manifestly an essential prerequisite for the correct application of the law and hence for a just judgment. It is therefore readily understood that the obligation of veracity is strictly prescribed, with the most severe sanctions, for those who—such as witnesses (v.) and experts (v.)—must assist judges in illuminating the facts under consideration. The obligation does not extend to the accused, nor to the accused’s close relatives (Italian Civil Code, art. 350; for canon law, cf. can. 1743), nor to certain categories of persons bound by professional secrecy (v. TESTIMONE).
In the field of canon law, see also can. 999 regarding the obligation to reveal impediments to sacred orders. No less important are the interventions of authority concerning the obligation to remain silent. Here must be recalled all provisions relating to military and political secrecy, as well as professional secrecy (arts. 622 and 623 of the Italian Penal Code; for canon law, cf. can. 243 § 2).
2. CONDUCT TO BE OBSERVED WHEN THERE IS AN OBLIGATION OR THE FACULTY TO REMAIN SILENT
The affirmation of a moral—sometimes even legal—obligation to remain silent—or at least the faculty to do so—immediately raises another series of problems: namely, how one should conduct oneself when one does not wish or is not permitted to communicate information. The first advisable attitude is silence. While it is true that “qui tacet consentire videtur,” it is also true that “qui tacet, nihil dicit.” The easiest and most secure way to preserve secrecy will therefore be, first and foremost, silence. Often, however, this means cannot be employed: sometimes it is undeniable that silence implies consent, or at the very least, silence can be a way of expressing certain thoughts. In such cases, a means of defense may be—and is—the second way of preserving secrecy: recourse to evasive formulas, that is, expressions that seem to say something but say nothing. In somewhat graver cases, one may even resort to amphibologies, that is, expressions that genuinely have two meanings, one of which the speaker intends while anticipating that the listener will understand the other. Here we are in the realm of applications of the principle of double effect, to which one may certainly have recourse when the action in itself is good or indifferent and there are sufficient reasons to permit the evil that will follow.Can one go further? Some have answered in the affirmative, proposing the well-known doctrine of mental reservation or even the opinion that, in certain cases at least, one may make false statements (v. RISERVA MENTALE). Others—perhaps not unjustly—point out that a false statement, or more simply, a lie, remains a lie and thus something intrinsically evil and therefore morally inadmissible, even if directed toward a good end; it cannot be justified unless one admits that the end justifies the means. The defense of secrecy may therefore entail considerable sacrifices in some cases; but this should not be surprising, since in all other spheres, the will to fully respect the demands of moral law may require more than a mere renunciation. Something remains, then, to be further explored in this area to clarify the conduct that one must or may adopt when faced with the necessity of defending secrecy, especially in the most difficult cases. It is obvious that in this matter, as in all others, purely verbal procedures must be avoided.
3. ATTITUDE TO BE ADOPTED TOWARD THE INFORMATION OF OTHERS
A third series of problems concerns the attitude to be taken toward the information of others. Everyone can “deposit” their thoughts in a vast array of sources (writings, recordings, magnetic tape, etc.), and by accessing these sources, we may appropriate another’s thoughts. It is also well known that one can, in various ways, compel someone to reveal their thoughts even outside or against their will (consider, for example, torture, certain interrogation techniques, narcoanalysis, etc.).What attitude can or should one adopt in this regard? In answering this question, it seems necessary to distinguish between information that pertains to the common good and that which does not. As for the former, public authority certainly has the faculty to appropriate it, within the limits required by the common good. It therefore has the right, when necessary, to violate postal secrecy, to monitor telegraphic and telephone communications, and to intercept secrets using technical means that do not offend morality. Only the extent to which the exigencies of the common good extend and which technical means are not contrary to morality remain to be clarified. It goes without saying that it is in light of these principles that the question of the liceity of recourse to torture, narcoanalysis (v.), etc., by public authority must be posed and resolved.
As for information not necessary for the common good, no one—not even public authority—has the right to appropriate or extract it; for the right to preserve secrecy whenever information is not indispensable to the good of oneself or others entails the prohibition for others to extract it and—even more so—to divulge II. Classical moralists have extensively treated the case of letters, carefully distinguishing between situations where the owner still retains them, where they have been abandoned or left exposed, and where they have been torn up or discarded: in the first case, all agree that it is not permissible to read them; in the second, all agree that they may be read, since it can easily be presumed that the owner has renounced their right to secrecy; in the third case, however, some (e.g., Laymann, Lugo) argue that by tearing them up, the owner has either wished or consented to renounce their secrecy and that they may therefore be read, while others hold the opposite view, believing that by tearing them up, the owner has precisely demonstrated that they did not wish to renounce their right.
The problem, however, is much broader, encompassing all information, in all fields, wherever it may be stored. Here, too, legislation has intervened, mandating penalties in some cases for those who violate another’s secrecy. It suffices to recall here arts. 616 et seq. of the Italian Penal Code on the violation of postal, telephone, and telegraphic secrecy, of secret documents, of scientific or industrial secrets, and on the violation, suppression, or removal of correspondence. The complexity of the problems surrounding secrecy—whether in morality, law, public authority, or technology and science—is readily apparent.
4. GRAVITY OF THE OBLIGATION TO PRESERVE SECRECY AND OF VIOLATING II
When, therefore, there is an obligation to observe secrecy and no excusing causes are present, what moral injury does its revelation entail? It is necessary to distinguish among the various kinds of secrecy:1) Natural secrecy in grave matters obliges *sub gravi* and *ex iustitia*. Therefore, anyone who has maliciously or negligently extracted another’s secret is bound to make full reparation for any harm, whether to reputation or to possible patrimonial damages, provided these damages were foreseen, at least in a general way.
2) Promised secrecy obliges like any other promise (v.). The gravity and obligation are determined by the intention with which the promise was made and by the scope of the obligations assumed. When there is an obligation to reveal the secret—whether by a superior’s precept, by a motive of charity, or by a legitimate judicial inquiry—the obligation to maintain merely promised secrecy ceases; this holds even if the promise was confirmed by an oath, since the obligation arising from the oath is accessory and follows the vicissitudes of the principal obligation.
3) Confessional secrecy obliges *ex iustitia* and *sub gravi*, both because it is based on a contract or quasi-contract and because it is ordinarily of considerable importance to the public good that it be faithfully maintained.
The secret may be violated either by direct revelation, when both the information and the person are disclosed, or by indirect revelation, when the information is communicated to others under circumstances that could still lead to the identification of the person to whom the information pertains. It may also be violated by the misuse of knowledge acquired through the secret, especially when this causes harm to the one who entrusted the secret; or by unjust inquiry (v. HYPNOTISM; NARCOANALYSIS).
The problem of the violation of the secret is also connected with the problem of detraction (v.) and the violation of reputation (v. INFAMY; INJURY).
THE SACRAMENTAL SEAL (SICILLO). — By the sacramental seal is properly understood the strict and absolute obligation to observe secrecy and to refrain from any external use of whatever has been said by the penitent in relation to sacramental absolution, the disclosure or misuse of which would harm the penitent or give rise to an unfavorable opinion in those who hear or learn of II. The obligation to observe this seal is called the *sigillum*; by analogy with letters, whose contents are to remain hidden, and are therefore sealed and closed.
5. History
The obligation of the seal is based on a religious motive, namely the reverence due to the sacrament, which must not be rendered odious; and on a motive of justice, in that the secret entrusted must be kept, that is, the tacit contract of silence implicitly stipulated with the penitent, and, where the sin is occult, the natural duty not to defame one’s neighbor.The obligation of the sacramental seal is of divine right; that is, according to St. Thomas (Summ. Theol. Suppl., q. 11, a. 1 and 4; in IV, D. 21, q. 3, a. 1), the obligation of the sacramental seal flows directly and immediately from the divine institution of the sacrament of penance and of secret confession. Since secret confession is of divine institution, anything that obstructs—such as the violation of the seal—its exercise is prohibited by divine right.
From the beginning, the Church has observed what is fundamental and primary in the law of the sacramental seal, namely to maintain the seal, except with the penitent’s permission, regarding sins known through secret confession; further determinations have come later, especially concerning the use of sacramental knowledge, which is forbidden only by ecclesiastical law.
In the early Church, positive documents attest to the obligation and fidelity to the sacramental seal. Origen compares confession to the disclosure made to a physician of a hidden wound (In Levit., 2, 4; PG 12, 418). Aphraates urges priests, who are physicians of souls: “when he reveals his infirmity to you, do not make it public, lest on account of him the innocent be judged guilty by enemies and by those who hate us” (Demonstr., 7, 3; PL 1, 318-19). St. Asterius of Amasea exhorts sinners to candidly manifest even hidden faults to the confessor, promising that he will provide for both their salvation and their good reputation, for a father cares more for the honor of his children than they do themselves (Hom., XIII; PG 40, 369). The biographer Paulinus praises St. Ambrose because “he disclosed the causes of crimes which were confessed to him to no one except the Lord alone, for whom he interceded, thus leaving a good example to future priests” (Vita s. Ambrosii, 39; PL 14, 43). St. Augustine states: “We must correct in secret, reprove in secret: lest in seeking to reprove we expose the man” (Serm. 82, 8; PL 38, 511) and further advises that penance should not be done “in the knowledge of many,” except in cases of scandal and when the bishop judges “that this is expedient for the utility of the Church” (Serm., 351, 9; PL 39, 1545). St. Leo the Great reproaches the bishops of Campania for publishing sins against apostolic rule (Ep., 168: PL 54, 1211). The Council of Tovinense in Armenia (c. 527) appears to be the first to take measures against a priest who violated the sacramental seal (Hefele-Leclercq, II, 1079; cf. also: Council of Carthage XV and XVIII [a. 410], in Mansi, IV, 438).
In the following centuries, writers insist more energetically on the necessity of preserving the sacramental seal. Thus, in the 9th century, Hincmar of Reims (De divortio Lotharii: PL 125, 634) and the Capitulare of Charlemagne (a. 813; cf. MGH. Capitularia, I, p. 175); Lanfranc, Archbishop of Canterbury, in the 9th century, wrote an entire treatise on the subject (De celanda confessione: PL 150, 625 ff.) and in the same century Anselm of Lucca included in his *Collectio canonum* a canon concerning the sacramental seal, falsely attributed to Pope Gregory, a canon that would enter into all subsequent collections (c. 2, D. 6 de poenit.).
The Fourth Lateran Council (a. 1215) therefore made no innovation when it promulgated the first universal law on the matter, attaching the severest penalties (cap. 21: Denz-U, n. 438).
A more complex problem was whether the confessor, without exposing himself to the danger of betraying the penitent, could make use of the knowledge acquired in confession to the penitent’s detriment when it was a matter of securing a greater good for him (St. Thomas, Quodlib., V, D. 13). In the 12th and 13th centuries, the question was explicitly posed. The authors of the time unanimously responded that it was lawful, provided the confessor had grave reasons for acting in this way (cf. Th. Sanchez, *De s. matrimonii sacramento*, I, III, disp. 6, Venice 1625, p. 233 ff.). But Clement VIII, on 24 May 1593, forbade superiors of religious orders and those confessors who later became superiors from making use, in the exercise of their external forum power, of knowledge acquired in confession (decr. *Sanctissimus*, § 4; *Fontes iuris canonici*, ed. P. Gasparri, I, Rome 1923, p. 177). A declaration of the Holy Office on 18 Nov. 1682 forbade every confessor from making use of knowledge acquired in confession to the detriment of the penitent and warned against upholding contrary opinions in the future (cf. G. van Belleghem, *L'usage illicite des connaissances acquises en confession*, Québec 1948, pp. 215-16). Benedict XIV condemned in the following century the practice of asking in confession for the name of an accomplice, because this practice is a kind of misuse of the knowledge acquired in the administration of confession (brief *Suprema omnium ecclesiarum sollicitudo*, 7 July 1745: Denz-U, n. 1474).
An instruction on the use of sacramental knowledge was issued in the following century by the Congregation of Propaganda Fide (20 Feb. 1836). These instructions and decrees led theologians to adopt an increasingly strict practice regarding the sacramental seal, erroneously extending it even to the simple use of knowledge acquired in confession as an indirect violation of the seal.
More than the use of the science acquired in confessions, what is at issue is the danger of an indirect violation of the sacramental seal and the instruction of the Holy Office of 9 June 1915 (op. cit., pp. 214 ff.). Now, the discipline regarding both the sacramental seal and the use of the science acquired in the practice of confessions is codified in the *Codex Iuris Canonici*.
From what has been said, it appears that the obligation of the sacramental seal is not only of divine right but also of ecclesiastical law, whereas what is arranged, outside the object of the seal *properly so called*, for the better safeguarding of the seal itself (sacramental science) is only of ecclesiastical right.
The obligation of the sacramental seal also obtains among the Easterners, whether united or dissident (cf. M. Jugie, *Theologia Orientalis*, Lyons 1928, p. 368).
2. **Obligation and Object of the Sacramental Seal.** — Only the penitent can give the confessor permission to speak of what was said in confession, but even then the confessor may not avail himself of this faculty if there is fear of harm to the sacrament in the sense of rendering it odious to others.
The reason is given by St. Thomas (*Summa Theologiae*, Supplement, q. 11, art. 4): “First and principally, because that which is concealed pertains to the essence of the sacrament, insofar as the confessor knows it as God, whose place he takes in confession; in another way, to avoid scandal.”
The obligation of the seal, however, is of divine right not absolute, but conditioned upon the penitent’s permission (cf. ibid., art. 1; art. 4 ad 2), which must be express, free, and not revoked.
Outside this hypothesis, the confessor may say nothing of what he has learned in the tribunal of penance, even if it concerns averting death or other public or social harms, however grave they may be. The principle that a particular good must yield to a public interest does not apply here, because the inviolability of the sacramental seal represents the most general interest, such as the good of consciences and the good of the Church. Moreover, in the penitential tribunal there are relations between man and God, of which the priest stands in the place of God (cf. Innocent III, *Serm.*, I: *PL* 217, 625, and St. Thomas, *loc. cit.*). And the divine order, or quasi-divine order, must prevail over every merely human order.
The differences between the sacramental seal and any other seal are profound. The sacramental seal presses in the forum of God, never ceases, and holds even with regard to the penitent; it excludes parity of matter where direct violation is concerned, and its violation is always sacrilege—notes and characteristics that do not obtain in the natural seal or in any other seal.
The obligation of the sacramental seal arises solely from a sacramental confession, even if, without the penitent’s fault, it is invalid, sacrilegious, or interrupted, or if absolution is withheld or deferred. What is required and is sufficient is that the penitent have accused himself with a view to obtaining absolution; this may be inferred from words or deeds. There is therefore no sacramental confession, nor consequently any seal, if one knowingly confesses to a layman or to a priest lacking jurisdiction, if one seeks only counsel, if one approaches confession with the intention to deceive, mock, or defraud the confessor, or if the priest openly and clearly protests that he does not intend to fulfill the office of confessor.
In doctrine, the object of the sacramental seal is distinguished into essential and accidental, according as it falls under the seal by its nature or for other reasons.
The **direct essential object** consists of: 1) all mortal sins, whether accused generically or specifically, past or future, occult or even public, provided that the latter are known to the confessor only through confession; 2) venial sins, even the slightest, if accused specifically, not if accused generically.
The **indirect essential object** consists of everything necessary, useful, or even superfluous for declaring sins; such as the circumstances (e.g., end, place, time) connected with the sin; the penance imposed, except that imposed in minimal form; withheld or deferred absolution; the matter of sins; and the name and sin of an accomplice (cf. Benedict XIV, brief *Suprema omnium Ecclesiarum sollicitudo*, 7 July 1745, in *Denz.-U*, no. 1474).
The **accidental object** of the sacramental seal includes: a) occult defects—natural, moral, civil—of the penitent, especially those whose revelation would be burdensome to the penitent or render the sacrament odious, such as scruples, over-scrupulosity, or actual imperfections; b) sins committed in the act of confession and accused in confession, e.g., impenitence, offense against the confessor.
The virtues of the penitent, special gifts of God, good desires, the absolution granted, the fact of having confessed, the condition or state of the penitent, etc., do not constitute matter of the sacramental seal, always excepting those cases in which there may accidentally be a danger of indirect violation. For this reason, the confessor, at the penitent’s request, may not refuse to give him a certificate of having confessed, even if he has not absolved him; to act otherwise could easily constitute an indirect violation of the sacramental seal. It is superfluous to note that even where the law of the sacramental seal does not obtain, there normally remains the obligation of the natural or at least natural seal. Prudence in this matter must never be lacking, so as not to give occasion to scandal or render confession burdensome.
3. **Subject of the Seal.** — All persons who in any way have come to know the declarations made in the penitential tribunal are bound by the sacramental seal. First among these is the confessor (can. 889 § 1), whether approved or not—that is, lacking jurisdiction—even if he is excommunicated, suspended, interdicted, deposed, or degraded. His silence must be such that he may oppose the most formal and sworn denial to any question put to him with a view to making him reveal the object of the confession. For, as a man, he is ignorant outside of confession of all that was confided to him *as God* in the tribunal of penance. He cannot therefore be questioned about the confidences he received. If he is, he may evade the questions or limit himself to saying that he has fulfilled his duty or even affirm that he knows nothing. If questioned in a trial concerning the matter of the confession, he may and must refuse to testify. By canon law (can. 1757 § 3, n. 2) he is considered an incompetent witness; likewise in many modern state codes (cf., e.g., art. 351 of the Italian Code of Criminal Procedure; art. 458 of the Belgian Penal Code, etc.). In causes of beatification and canonization today the confessor is not admitted as a witness (can. 2027 § 2, n. 1; 1757 § 3, n. 2). Finally, if the confessor cannot accuse his own personal sins without compromising the sacramental seal, he may omit the accusation of his fault rather than expose himself to a violation of the sacramental seal.
Secondarily, the sacramental seal (cf. can. 889 § 2) binds:
1) the interpreter, if one is freely chosen to assist at the act of confession;
2) the superior who is consulted to obtain the faculty to absolve reserved cases (cf. also can. 2252, 2254 § 1);
3) the theologian or canonist, whether priest or layman, that is, anyone consulted by the confessor—with or, according to the prevailing and practically certain doctrine, without the penitent’s permission—in order to resolve a difficulty. If, however, the priest is consulted directly by the penitent, he is bound by the seal only when the subject of the consultation concerns a confession to be made to himself.
4) All who, whether voluntarily or involuntarily, through malice or by chance, come to know the matter of the confession. If, however, someone makes a public confession of his sins out of a spirit of penance or humility, it is evident that those who hear it are not bound by the sacramental seal.
Moreover, anyone who has direct or indirect knowledge of a penitent’s sins is bound by the seal, whether this knowledge comes from a culpable or inculpable revelation by a confessor or from other causes. This applies also to anyone who, by chance or deliberately, reads a written confession by the penitent, provided that the writing is considered as an actual confession or as a means to an actual confession.
The penitent is not bound by the seal. Just as, for a reasonable motive, he may renounce his right and authorize the confessor to speak of his sins, so, with even greater reason, the penitent may speak of himself. Nevertheless, the natural seal always remains intact regarding the disclosure of words, advice, or prescriptions given by the confessor, when such disclosure would redound to the latter’s harm, unless the common or general good demands it (cf. can. 904).
4. Violation of the sacramental seal and its sanctions. Use of sacramental knowledge.
As has been said, the violation of the sacramental seal is a sacrilege, an injustice, and at times a detraction. Direct violation is always grave when it explicitly or implicitly manifests the sin and the sinner. Indirect violation, on the other hand, is of equal gravity when, from the confessor’s words or actions, there arises the danger of discovering the object of the sacramental seal and the identity of the penitent.
Distinct from violation, even indirect, is the use of information acquired in confession. The Code of Canon Law clearly and carefully distinguishes between violations of the sacramental seal (can. 889) and the prohibition of the use of sacramental knowledge “with prejudice to the penitent, even excluding any danger of revelation” (can. 890 § 1). This prohibition exists even when there is no danger of direct or indirect violation, as long as the use of such knowledge redounds to the penitent’s prejudice.
Therefore, a superior may not use sacramental knowledge for external governance; that is, in his administration he may not take or alter dispositions with reference to sins heard in confession (can. 890 § 2). The words of can. 890 § 1 “with prejudice to the penitent” are not to be understood solely with reference to the particular penitent in question, but with reference to any penitent, considered indeterminately; they mean that the sacrament of Penance must not be burdensome or troublesome to any penitent, knowing that at times the use of sacramental knowledge is permitted. Once any danger of revelation is removed and the prejudice to the penitent is excluded, it is not forbidden to make use of information heard in confession.
Furthermore, the Church absolutely forbids rash speech (cf. Instruction of the Holy Office, 9 June 1915) regarding matters heard in confession, even with a view to doing good. To some superiors, moreover, it is forbidden to hear confessions habitually, both to safeguard the freedom and sincerity of confessions and to prevent illicit use of information obtained in confession for the external forum. Thus, religious superiors are forbidden to hear the confessions of their subjects habitually (can. 518 § 2), as are the novice master and his assistants, rectors of seminaries or colleges with regard to their students, except in extraordinary and individual cases at the spontaneous request of the interested party (can. 891). Finally, it is forbidden to ask for the confessor’s vote when admitting a student to sacred Orders or expelling him from the seminary (can. 1361 § 3). By ecclesiastical law, the seal binds anyone who, by reason of spiritual direction, counsel, or the exercise of jurisdiction, comes to know intimate matters regarding a person’s relations with God (can. 243 § 2, 546, etc.), although in all these cases one is outside the sacramental seal and the use of sacramental knowledge.
A confessor who dares (praesumpserit) to violate the sacramental seal directly incurs a latae sententiae excommunication reserved in a very special way to the Apostolic See (can. 2369). Indirect violation by the confessor and direct or indirect violation by others, as well as the use of sacramental knowledge and rash speech, are punished by ferendae sententiae penalties (can. 2369; 2222; cf. Instruction of the Holy Office, cited above).
Priests of the Eastern rites also incur the latae sententiae censure. Knowledge of the most grave crime of direct and conscious violation of the sacramental seal by a confessor pertains to the Sacred Penitentiary for the internal forum and to the Holy Office for the external forum (cf. declaration of the Holy Office, 21 July 1934; AAS, 26 [1934], p. 550).
III. SEAL OF THE HOLY OFFICE
This is a form of secret, confirmed by oath, to be observed by the officials of the Sacred Congregation of the Holy Office (and by extension by the officials of the Sacred Consistorial Congregation with regard to the appointment of bishops, and by those of the Sacred Congregation of Extraordinary Ecclesiastical Affairs: Letter of Pius XI, 5 July 1925; AAS, 18 [1926], p. 89) and by all others to whom this form of secret is imposed in extraordinary circumstances.The modalities of the seal are defined in the decrees of Clement XI (1 December 1709) and especially of Clement XIII (1 February 1759) and in the motu proprio of Bl. Pius X *Romani Pontifices* (17 December 1903), now implicitly reconfirmed in can. 239 § 1 and 243 § 2. Those belonging to the Sacred Congregations, tribunals, and offices of the Holy See naturally have the obligation of the seal regarding matters of office, but the modalities vary according to the different Congregations, tribunals, and offices and the importance or delicacy of the matters treated (can. 243 § 2). In general, this seal, confirmed by oath, pertains to all those matters in which ecclesiastical superiors command that the seal be kept and obliges even “when it is required by Ordinaries or when the revelation of some act could prejudice the parties or the Church.” The penalty for transgressors of this seal, when it exists, is no different from that generally imposed for all oath-breakers.
The Holy Office, however, has an exclusive procedure. Part of this is the strictest seal, by which all affairs of this Sacred Congregation are handled, and, according to the instructions given by Bl. Pius X in the motu proprio of 17 December 1903, it obliges those bound by it “to faithfully fulfill their office and to preserve inviolate in all things and with all persons the seal, under pain of latae sententiae major excommunication, to be incurred ipso facto and without any declaration, from which they cannot be absolved except by Us and Our successors, the Roman Pontiffs, exclusively even with regard to the Penitentiary and the Cardinal Penitentiary himself, except in the case of the article of death.” The seal also extends to indirect revelation of the secret, and in case of doubt, the presumption favors the existence of the seal.
Giuseppe Palazzini
IV. PROFESSIONAL SEAL
This is a form of committed seal and obliges those who, by reason of their status, office, profession (in this case the term is used comprehensively), or art, come to know confidential information pertaining to persons who have turned to them for advice or assistance.It aims to foster the special trust inherent in a particular office and to guarantee free recourse to those exercising confidential professions even in cases where one strongly desires that matters remain hidden. The violation of the professional seal is considered more serious than that of a simple committed seal, due to its natural foundation and its impact on the common good.
The first condition for the existence of the professional seal is the quality of the person bound by II. This person must be aware of the seal by reason of their office, art, or profession; otherwise, one may speak of other forms of seal or of a committed seal in general, but not specifically of the professional seal.
Among the most common professions in this regard are the priestly ministry, which forms a category of its own, even on account of the attached obligation of sacramental seal; the professions of physician, pharmacist, midwife (or health professions in general), notary, lawyer, procurator, judge, technical consultant, magistrate in general, employee, or official (taking the professional seal in general as including the seal of office), etc. As for the quality of the confidence received or the matter known, it must concern a secret matter and therefore not be a notorious fact that the practitioner of that art or profession could have learned through other means. Moreover, the seal must be such that its disclosure could cause harm. The harm may be material or moral and may pertain to honor or property. Regarding the intentional element, the general principles of voluntary and involuntary acts apply. The gravity of the fault in revealing a professional seal will be greater or lesser depending on whether there was deliberate and intentional malice, mere voluntariness in the revelation, or whether the revelation was made without the reflection expected of a prudent person. The obligation of the professional seal is not absolute in every respect; it rather has the character of relativity.
Disclosure of the seal is culpable only if made without just and proportionate cause. The assessment of the motives that may justify the revelation of a professional seal is a matter of prudence. A just cause for revelation may be not only the common good but also the private good of the person who knows the secret, the good of others, or that of the person concerned in maintaining the seal, when the harm attached to maintaining the seal becomes too great in comparison to the good. The obligation of the professional seal safeguards a common good of great importance, but it is always limited by the other exigencies of human life.
6. Foundation of the professional seal
All the opinions advanced to explain the foundation of the obligation of the professional seal can be reduced to three: the first hinges on an obligation of a contractual nature; the second instead connects it to the natural right to good repute; and the third explains it as a creation imposed by the exigencies of the public good. In the more ancient legal systems, the seal of office first took the name of dispensation from giving testimony in court. The legislator indeed forbade harmful and indiscreet revelations that were not necessary for public order. In more recent times, however, the illegal character of the revelation of the seal of office is emphasized, being considered a crime comparable to theft or fraud. Between these two classes of opinions—the first based on contractual foundation and the second on institutional or public foundation—there is also an intermediate opinion that holds that the seal of office is founded on contract with regard to its object and on the exigency of public order with regard to its end. These opinions are especially favored among jurists.For scholars of natural law, the professional seal is founded above all in the right of the individual to good repute; consequently, one has the right not to be deprived of it by others. This right in others corresponds to the obligation not to violate II. This doctrine traces back to the teaching of the scholastics (*Sum. Theol.*, II-II, q. 73 a. 1 c; *In IV Sent.*, d. 21, 9, 3, a. 1) and also underpins the current doctrinal elaboration of moral theologians. These latter also focus on the personal right to repute, a right that, when duly respected, also promotes the common good (hence the consideration of the professional seal in positive law). The contractual bond is more a determinant of the obligation of the professional seal than its foundation, inasmuch as those who resort to the professional, public practitioner, etc., rely on the body of ethical-legal norms governing the exercise of their profession based on natural and positive law. The conflict of interests that may arise concerning those interested in maintaining the seal or in its revelation is to be resolved according to the principles of a common conflict of laws, observing natural equity.
7. Professional secrecy in canon law
Although it is not explicitly mentioned, professional secrecy in canon law also encompasses office secrecy, just as the moral consideration of both is identical. In detail, a form of professional secrecy peculiar to canon law and the gravity and delicacy of the issues handled by ecclesiastical authority is the secrecy of the Holy Office. In common usage, office secrecy is also obligatory for the other congregations, tribunals, and offices of the Roman Curia (Ordo servandus in Romana Curia — Normae peculiares, cap. 7, art. I, 11; AAS, 1 [1909], p. 80). Indeed, it must be confirmed by a special oath (ibid., cap. 3; AAS, 1 [1909], p. 40) and is accompanied by a special sanction (suspension from office, imposed by the Regulations for the Personnel of the Roman Curia: art. 73, 5). The Supreme Tribunal of the Apostolic Signatura includes among its matters of competence the judging of complaints lodged against the prelates-auditors of the Sacred Roman Rota for violation of office secrecy (can. 1603 § 1, n. 1). All those who receive information for admitting someone to an Order or Congregation, not only superiors but also examiners, counsellors who read testimonial letters or receive information, are bound by the grave obligation to preserve secrecy (can. 546). To all of them, the information is given for reasons of office.In canon law, professional secrecy takes these various forms: sacramental secrecy, quasi-sacramental secrecy, and extra-sacramental secrecy or office secrecy properly so called, which must be observed in sacred ministry. Quasi-sacramental secrecy arises from freely opening one’s conscience to others, whether to satisfy a requirement, as religious rules once prescribed, or to enlighten a conscience, either on the occasion of confession or outside sacramental confession, when the matter does not fall within the scope of sacramental secrecy.
To safeguard these forms of secrecy, the ecclesiastical legislator declares priests incapable of giving testimony about anything they have learned in confession (can. 1757 § 3, 2) and exempts from the obligation to testify before a judge regarding matters they have learned in the exercise of their office or profession: priests concerning matters known outside of confession in the exercise of their ministry, magistrates, physicians, midwives, lawyers, notaries, and others bound by secrecy concerning matters they handle in their office (can. 1755 § 2, n. 1).
For the common good and to avoid possible harm to the innocent party, office secrecy is always required in criminal trials; in contentious trials, it may sometimes be imposed on the judge or assistants of the tribunal (can. 1623 § 1; cf. also can. 1943). Certain witnesses may legitimately be permitted by the judge to conceal the truth they have learned for reasons of sacred ministry, office, counsel, or assistance, inasmuch as they are bound by office secrecy (can. 1755 § 2, 1). In the process of removal, examiners, consultors, and notaries must observe secrecy regarding everything they have learned for reasons of office (can. 2144). Bound by secrecy are also the Ordinary, the priest who assisted at a marriage, and the witnesses in so-called marriages of conscience; however, if the avoidance of harm to the innocent party and the good of religion so require, the Ordinary may lift the obligation, for if secrecy were to become a bond of iniquity, it would no longer be binding (can. 1105-1106).
Office secrecy, moreover, binds especially when confirmed by an oath. The force of this obligation is to be inferred from the wording of the oath. There is indeed a common formula, which binds according to the sacred canons, and a special formula, which may be imposed by superiors; in the latter case, violation of office secrecy is punished more severely with an ecclesiastical penalty incurred *ipso facto* (Ordo cit., cap. 3; AAS, 1 [1909], p. 41).
8. Professional secrecy in Italian law
The revelation of professional secrecy is considered a crime, prosecuted upon the complaint of the injured party. Similarly, the use of secret information for one’s own or another’s profit is considered a crime. The penalty is imprisonment for up to one year or a fine from 300 to 500 lire (Italian Penal Code, art. 622). The revelation of office secrecy by a public official, however, constitutes a specific crime (art. 326). The right to refuse to testify on grounds of professional secrecy is also recognized for many categories of persons (ministers of the Catholic religion or other recognized cults, lawyers, procurators, technical consultants, notaries, physicians, surgeons, pharmacists, midwives, and those practicing the healing arts in general), but the law may impose on them the obligation to inform the authorities (Italian Code of Criminal Procedure, art. 351), as it does for certain infectious diseases. This obligation, however, cannot be imposed directly in the case of office secrecy, but requires the authorization of the Minister of Justice (ibid., art. 352).For the revelation of professional or office secrecy to be imputed as a crime, the law requires the fulfillment of certain conditions, such as: a) the revelation having been made, b) the status of the person subject to secrecy, c) the circumstances in which it is known that the matter is secret, d) the intention of the office of the agent, which is identified with the motive of the action, since one who knowingly reveals a secret cannot be said to have acted without intention. On the contrary, the revelation of a secret without the intention to do so cannot be called a crime due to its involuntary and unconscious nature.