Secret

SECRET. - A secret materially understood is the same hidden thing; formally understood it is the knowledge of that same thing with the obligation not to divulge or communicate it to others.

I. GENERAL NOTION

Without doubt man has not only the right of property over external things or the free disposal of the members of his body, but also 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 (for example, the intimate relations of the soul with God). And even should news of them leak out to others, it is natural that the knowledge be kept circumscribed, at least until it enters the order of public interest or the common good. Other ideas, however, and actions are not so strictly personal as to demand by their nature this reserve or preservation of secrecy; but they demand it for extrinsic circumstances, for example, in order not to cause 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 a promise to that effect has preceded, or the news has been communicated for a purpose of private interest to persons who are commonly held bound to secrecy. According to the different source from which the obligation of secrecy may spring, one speaks of natural, promised, and entrusted secrecy.

To natural secrecy belong the first and second category of news, in which the object itself demands secrecy, either because these are ideas and actions that have a strictly personal and private ordering, or because these are ideas or actions whose divulgence can harm the good both individual and common (there is, for example, a good reputation to preserve, a harm to avoid, or a help to give). To entrusted secrecy belong news known through communication made by one who was in possession of the news, with an explicit or implicit pact that the news go no further. To promised secrecy belong news for which the one who received it has bound himself to keep the knowledge of it circumscribed to himself or to a few other persons.

Thus far the problem has been considered from a predominantly personal point of view, the right that the person has over his ideas and over his actions and also over his own reputation (v.). The problem of secrecy is, however, connected with other grave problems, with that of language and of the communication of ideas. Language is made expressly for communicating ideas among men: what now are the relations between communication of ideas, language, and secrecy? From this point of view three groups of questions merit particular attention: those that concern the obligation to speak or to be silent, those concerning the conduct to be maintained when one has the obligation and the faculty to be silent, those concerning the attitude to assume in the face of news belonging to others.

1. OBLIGATION TO SPEAK AND TO BE SILENT

It is well known that man has, among other things, the faculty of expressing his own thoughts, or his own states of mind. It is also well known that this man can do only by means of signs; for he is not able to transmit directly the content of his judgments and of his reasonings, the object of his cognitions and of his reflections. It is well known finally that the signs he uses are substantially free. The transmission of thought is not a necessary fact, an ineluctable phenomenon that fatally imposes itself on the man who thinks. It is possible that one have a thought and not manifest it; it can even happen that one express something he does not have; it is possible, in other words, that the thought lack exterior expression and, in the case that this exists, it is possible that it be conformable to the thought and reproduce it, or also that it be difform and veil it. Looking more deeply, one can say that men are quite reluctant to communicate about themselves and about others things that they fear may bring harm to their interests or to their reputation; easy, on the other hand, to say what they think may benefit them; they even easily come, in the second case, to invent what is not, and, in the first, to deny even what is, lying in both cases, though in different forms. If one looks finally at the consequences usually verified 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 whether one says a pleasant thing or an unpleasant thing); on the manner in which it is said (it is not the same whether one says it inconsiderately and without prudence, and, instead, with regard and finesse); on habitual conduct (an isolated lie is not usually enough to destroy a person's credit, just as an isolated truth is not enough to restore it to one who has lost it; the habit of lying takes away credit just as the habit of truth gives a very great deal of it).

From the phenomena indicated and after what has been said above on secrecy, a complex of problems arises. Is it licit in some case to be silent about one's thought? 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 can be seen, these are the grave moral problems of secrecy and of lying. Here the latter are deliberately passed over (for which v. MENZOGNA) and we stop at those of silence or of secrecy.

Already on the basis of natural law alone one can say that, the word being a human faculty, it is subject to the norm that regulates the morality of man's faculties, that is, 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 hold also for the faculty of speech - love of God and of neighbor. Each one therefore will be free to say or to be silent about what does not harm the person, and does not contradict either the subjection owed to God, or the justice and love owed to brothers; he will instead be bound to say what is necessary for his own good and that of others and to be silent about what harms any of the persons indicated.

Not always, however, is it easy to see how to apply the principles indicated in concrete terms. Consider, for example, the sector of speaking to children, especially in matters of sexual initiation, of speaking to the gravely ill, etc. What is it good to say to all these? Each of the solutions chosen, of saying everything, of being silent about everything, or of saying only a part, has advantages and disadvantages, and one does not always see in concrete terms 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 double effect," or of the "greater good" or of the "lesser evil," which has so much application in the concrete course of human events, will be inevitable. In this matter the two terms of comparison are often public interest or private interest; fidelity to a promise or help of neighbor. The greater good to be observed often takes the name of excusing cause that dispenses from secrecy. The social importance of the theme could not fail to draw the attention of the civil and ecclesiastical legislator. Both legislations take care to establish a minimum of cases in which they make it obligatory to speak or to be 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 activity, whether civil or criminal, has as its first office the ascertainment of the truth, which is manifestly an essential presupposition for the right application of the law and therefore for a just sentence, it is well understood that the obligation of veracity is rigorously prescribed, with the gravest sanctions, for those who - like witnesses (v.) and experts (v.) - must concur in enlightening the judges on the reality of the facts on which the judgment bears. The obligation does not regard the accused, nor the close relatives of the defendant (Italian Civil Code art. 350; for canon law cf. can. 1743) and certain categories of persons bound by professional secrecy (v.; also: PARTI, TESTIMONI).

In the field of canon law, see also can. 999 on the obligation to reveal impediments to holy orders. No less important are the interventions of Authority regarding the obligation to keep silent. Here mention should be made of all the 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 ONE HAS THE OBLIGATION OR THE FACULTY OF KEEPING SILENT

The affirmation of the moral obligation — sometimes also a juridical one — to keep silent, or at least the faculty of doing so, immediately raises another series of problems: that of how to behave when one does not wish or must not communicate a piece of information. The first attitude to suggest is silence. If it is true that silence gives consent, it is also true that silence says nothing. The easiest and safest way of defending a secret will therefore be, first of all, silence. Often, however, this means cannot be resorted to: sometimes it is undeniable that silence gives consent, or in any case it is beyond doubt that silence too can be a way of expressing certain thoughts. In such cases a way of defending oneself can be — and it is the second way of preserving a secret — recourse to evasive formulas, that is, to expressions that seem to say something and say nothing. In somewhat more serious cases one may even resort to amphibologies, that is, to expressions that genuinely have two meanings, of which the speaker intends one while foreseeing that the hearer will understand the other. Here we are in the field of the applications of the principle of double effect, to which it is certainly lawful to resort when the action is in itself good or indifferent and there are sufficient reasons for permitting the evil that will follow from it.

Can one go further? Some have answered yes, proposing the well-known doctrine of mental reservation or even the opinion that, at least in certain cases, one may make false statements (v. RISERVA MENTALE). Others — and perhaps not unjustly — point out that a false statement, or, more simply, a lie remains a lie and therefore something intrinsically evil and hence morally inadmissible, even if directed to a good end; it therefore cannot be uttered unless one admits that the end justifies the means. The defense of a secret may therefore entail in certain cases considerable sacrifices; but this should not be surprising, given that, in all other areas, the will to respect the demands of the moral law to the very end may cost more than one renunciation. Something therefore remains to be examined more deeply in this field in order to clarify the conduct that one who finds himself under the necessity of having to defend a secret must or may adopt, especially in the more difficult cases. And it is obvious that in this question, 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 assumed toward the information of others. Each person can in fact "deposit" his thought in the most diverse sources (writings, records, magnetized wire, etc.), and we can, by gaining access to such sources, appropriate the thought of others. It is also well known that one can, in various ways, induce someone to manifest his thought even outside or indeed against his will (one need only think of torture, of certain interrogation techniques, of narcoanalysis, etc.).

What attitude can or must one assume in this regard? In the answer it seems necessary to distinguish between information that concerns the common good and other information. As for the former, the public power certainly has the faculty of appropriating it, within the limits of the requirements of the common good. It therefore has the right, in case of necessity, to violate postal secrecy, to monitor telegraphic and telephone communications, to extract secrets by those technical means that do not offend morality. It will only remain to specify how far the requirements of the common good extend and which technical means are not in conflict with morality. It need not be said that it is in the light of these principles that the question of the lawfulness for the public power of recourse to torture, to narcoanalysis (v.), etc., must be posed and resolved. On the other hand, as for information not necessary to the common good, no one — not even the public power — has the right to appropriate it or to extract it; indeed, the right to preserve a secret every time a piece of information is not indispensable to one's own or another's good carries with it the prohibition for others to extract it and — even more — to divulge it. The classical moralists have long treated the case of letters, carefully distinguishing when the owner still keeps them, when he has abandoned them or leaves them exposed, and when he has torn them up or thrown them away: in the first case all agree in saying that it is not lawful to read them; in the second case all agree in saying that they may be read, since it can easily be presumed that he has renounced his right to preserve the secret; in the third case, however, some (e.g., Laymann, Lugo) think that, by tearing them up, he intended or consented to renounce his secret and that they may therefore be read; others, on the other hand, hold the opposite opinion because they believe that by tearing them up the owner would have demonstrated precisely that he did not wish to renounce his right.

The problem, however, is far broader, concerning all information, in all fields, wherever it is entrusted. Here too legislation has intervened, imposing in some cases severe penalties against those who violate the secret of others. It suffices here to recall arts. 616 ff. of the Italian Penal Code on the violation of postal, telephone and telegraphic secrecy, of secret documents, of scientific or industrial secrets; on the violation, removal and suppression of correspondence. It is easy to see the complexity of the problems that arise around secrecy, whether for morality, for law, for the public power, or for technology and science.

4. GRAVITY OF THE OBLIGATION TO PRESERVE A SECRET AND OF THE INJURY THERETO

When therefore there is an obligation to observe a secret and there are no excusing causes, what injury to the moral order does revealing it import? It is necessary to distinguish the various kinds of secret. 1) The natural secret in a grave matter obliges of itself sub gravi and ex iustitia. Therefore whoever has extracted a secret from another, by deceit or negligence, is bound to repair every harm both in relation to the reputation injured and in relation to possible patrimonial damages, provided that these damages were foreseen, at least in a confused manner. 2) The promised secret obliges like any promise (v.). Its gravity and obligation are inferred from the intention with which the promise was made and from the extent of the obligations that were intended to be assumed. When there is an obligation to manifest the secret either by a precept of a superior, or for a motive of charity, or for a legitimate interrogation by a judge, the obligation to maintain a merely promised secret ceases; and this even if the promise has been confirmed by oath, because the obligation by oath is accessory and follows the vicissitudes of the principal obligation. 3) The entrusted secret obliges by justice and sub gravi, both because it is based on a contract or quasi-contract, and because ordinarily it is of notable interest for the public good that it be faithfully maintained.

A secret can be violated either by direct revelation, when both the information and the person are made manifest; or by indirect revelation, when only the information is communicated to others, but in such circumstances that the person to whom the information refers can still be discovered. It can also be violated by abuse of knowledge acquired through knowledge of the secret, especially if this occurs to the detriment of the one who entrusted the secret itself; or by unjust inquisition (v. IPNOTISMO; NARCOANALISI).

The problem of the violation of a secret is also connected with the problem of detraction (v.), of the violation of reputation (v. INFAMIA; INGIURIA).

Giovanni Battista Guzzatti.

II. SACRAMENTAL S (SEAL)

By sacramental secret is properly meant the strict and absolute obligation to observe secrecy and to abstain from any extra-sacramental use of everything that has been said by the penitent in order to sacramental absolution, the disclosure or use of which would harm the penitent or give rise to an unfavorable opinion in those who see or hear. The obligation to observe this secret is called the seal; by analogy with letters, whose contents one wishes to remain hidden, and which are therefore closed and secured with a seal.

1. History

The obligation of the secret is based on a motive of religion, on account of the reverence owed to the Sacrament, which must not be made hateful; and on a motive of justice, insofar as one must keep a secret entrusted to one, that is, the contract of silence, implicitly and tacitly stipulated with the penitent, and, where a hidden sin is involved, the natural secret of not defaming one's neighbor.

The obligation of the sacramental secret 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 secret flows directly and immediately from the very divine institution of the Sacrament of penance and of secret confession. Since secret confession is of divine institution, everything that stands in the way of its exercise — such as the violation of the secret — is forbidden by divine right.

From the beginning the Church has observed what is fundamental and primary in the law of the sacramental secret, namely to keep the secret, save for the penitent's authorization to the contrary, regarding sins known through secret confession; further determinations came later, especially with regard to the use of sacramental knowledge, which is forbidden only by ecclesiastical right.

In the ancient Church there are positive documents of the obligation and fidelity to the sacramental secret. Origen compares confession to the disclosure made to a physician of a hidden wound (In Levit., 2, 4: PG 12, 418). Aphraates recommends to priests who are physicians of souls: «cumque (infirmitatem) vobis revelaverit, nolite eam publicare, ne propter illum ab inimicis et ab iis qui nos oderunt, innocentes in culpa esse iudicentur» (Demonstr., 7, 3: PL 1, 318-19). St. Asterius of Amasea exhorts sinners to manifest candidly to the confessor even their hidden faults, promising that he will provide for both the salvation and the good reputation of the penitent, because the father cares more for the honor of his children than they do themselves (Hom., XIII: PG 40, 189). The biographer Paulinus praises St. Ambrose, because «caussa autem criminum quae illi confitebatur nulli nisi Domino soli, apud quem intercedebat, loquebatur, bonum relinquens exemplum posteris sacerdotibus» (Vita s. Ambrosii, 39: PL 14, 43). St. Augustine affirms: «In secreto debemus corripere, in secreto arguere: ne volentes arguire prodamus hominem» (Serm., 82, 8: PL 38, 511) and further recommends that penance must be performed not «in notitia multorum», except in the case of scandal and where the bishop judges «hoc expedire utilitati Ecclesiae» (Serm., 351, 9: PL 39, 1545). St. Leo the Great reproaches the bishops of Campania, because against the apostolic rule they published sins (Ep. 168: PL 54, 1211). The Council of Tovin, in Armenia (ca. 527), appears to be the first that took measures against the priest who violates the sacramental secret (Hefele-Leclercq, II, 1079; cf. also: Council of Carthage XV and XVIII [a. 419], in Mansi, IV, 438).

In the following centuries writers insist more energetically on the necessity of preserving the sacramental secret. 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 has an entire opuscule on the subject (De celandis confertione: PL 150, 625 ff.) and in the same century Anselm of Lucca inserts into his Collectio canonum a canon, concerning the sacramental secret, falsely attributed to Pope Gregory, a canon that would become part of all the following 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, arming it with very severe penalties (cap. 21: Denz-U, n. 438).

A more complex problem was whether the confessor, always without exposing himself to the danger of betraying the penitent, could make use of the information received in confession cum gravamine poenitentis, when it was a matter of securing for him a greater good (St. Thomas, Quodlib., V, D. 13). In the 12th and 13th centuries the question was posed explicitly. The authors of the time unanimously replied that the thing was lawful, provided the confessor had serious motives for acting in that sense (cf. Th. Sanchez, De s. matrimonii sacramento, I, III, disp. 6, Venice 1625, p. 233 ff.). But Clement VIII, on 24 May 1593, forbade regular superiors and those confessors who later became superiors to make use, in the exercise of their power in the external forum, of information learned in confession (decr. Sanctissimus, § 4; Fontes iuris canonici, ed. P. Gasparri, I, Rome 1923, p. 177). A declaration of the Holy Office of 18 Nov. 1682 forbade every confessor to make use of knowledge acquired in confession cum gravamine poenitentis and warned against maintaining in the future the lawfulness of opinions to the contrary (cf. G. van Belleghem, L'usage illicite des connaissances acquises en confession, Québec 1948, pp. 215-16). Benedict XIV condemned in the following century also the practice of requesting in confession the name of the accomplice, because this practice amounts to a kind of use of information 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 brought it about that theologians oriented themselves toward an ever more rigid practice of the sacramental secret, going so far as erroneously to include in the indirect violation of the sacramental secret the mere use of knowledge had from confession.

More than the use of knowledge acquired in confession, the instruction of the Holy Office of 9 June 1915 (op. cit., p. 214 ff.) concerns instead the danger of indirect violation of the sacramental secret. Now the discipline both with regard to the sacramental secret and with regard to the use of knowledge acquired in the practice of confession is sanctioned in the CIC.

From what has been said it appears that the obligation of the sacramental secret is not only of divine right, but also of ecclesiastical right, while it is only of ecclesiastical right that which, outside the object of the sacramental secret properly so called, is laid down for a better protection of the secret itself (sacramental knowledge).

The obligation of the sacramental secret also exists among the Orientals, both united and dissident (cf. M. Jugie, Theologia Orientalis, Lyon 1928, p. 368).

2. Obligation and object of the sacramental secret

Only the penitent can give the confessor permission to speak of what has been said in confession, but even then the confessor cannot use this faculty if harm to the Sacrament is feared in the sense of making it hateful to others.

The reason is given by St. Thomas (Summ. Theol., Suppl., L. 11, a. 4): «primo quidem et principaliter, quia illud ut occultatio est de essentia Sacramenti, in quantum sit illud ut Deus, cuius vicem gerit in confessione; alio modo, propter scandalum vitandum». The obligation of the seal, however, is of divine right not absolutely, but conditioned on the penitent's permission (cf. ibid., a. 1; a. 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 is a matter of avoiding death or other public or social harms, however grave. 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 relations take place between man and God, whose place the priest takes (cf. Innocent III, Serm., I: PL 217, 625, and St. Thomas, loc. cit.). And the divine, or quasi-divine, order must prevail over every other purely human order.

The differences between the sacramental seal and any other secret are profound. The sacramental seal presses in foro Dei, never ceases, holds also with regard to the penitent, excludes parvity of matter where there is question of direct violation, and its non-observance is always a sacrilege; notes and characteristics, these, which do not occur in the natural or entrusted secret.

The obligation of the sacramental seal springs solely from a sacramental confession, even if, without fault of the penitent, it is invalid, or sacrilegious or interrupted, or if absolution is denied or deferred. It is required and sufficient that the penitent has accused himself in order to obtain absolution; a fact which can be gathered from words or from deeds. Hence there is no sacramental confession, and therefore no seal, if one knowingly confesses to a layman or to a priest lacking jurisdiction, if he asks only for advice, if he approaches confession with the intention of deceiving, mocking or robbing the confessor; nor if the priest openly and clearly protests that he does not wish 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 and future, hidden or even public, whenever the latter were known to the confessor only through confession; 2) venial sins, even the lightest, if specifically, not if generically manifested. The indirect essential object consists of everything that is necessary, useful or even superfluous for declaring sins; such as: the circumstances (e.g., the end, the place, the time) connected with the sin; the penance imposed, except that imposed in minimal form; the denied or deferred absolution; the matter of the sins and the name and the sin of the accomplice (cf. Benedict XIV, brief Suprema omnium Ecclesiarum sollicitudo, of 7 July 1745, in Denz-U, n. 1474).

The accidental object of the sacramental seal consists of: a) the hidden defects — natural, moral, civil — of the penitent, especially those whose manifestation would be burdensome to the penitent or would render the Sacrament odious, as, for example, scruples, meticulousness, imperfections properly so called; b) the sins committed in the act of confession and accused in confession, e.g., impatience, offense to the confessor. The virtues of the penitent, the 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, however, excepting those cases in which there can accidentally be the danger of an indirect violation. For this reason the confessor, when asked by the penitent, cannot deny him an attestation that confession was made, even if he has not absolved him; to act otherwise could easily be an indirect violation of the sacramental seal. It is superfluous to note that even when the law of the sacramental seal does not hold there normally exists the obligation of the entrusted or at least natural secret. Prudence, moreover, in such a matter must never be lacking, so as not to give occasion for possible scandal and so as not to render confession burdensome.

3. Subject of the seal

All persons who, in any way, have had knowledge of the declarations made in the penitential tribunal are bound by the sacramental seal. In the first place comes the confessor (can. 889 § 1), approved or not approved, that is, lacking jurisdiction, even if excommunicated, suspended, interdicted, deposed or degraded. His silence must be such that he can oppose the most formal and sworn denial to any question put to him in order to make him reveal the object of the confession. He, in fact, ut homo is ignorant, outside confession, of everything that has been confided to him ut Deus in the tribunal of penance. He cannot therefore be questioned about the confidences received. If this is done, he may evade the questions or limit himself to saying that he has fulfilled his duty or even affirm that he knows nothing. Questioned in court about the matter of confession, he can and must refuse to testify. By canon law (can. 1757 § 3, n. 2) he is considered an incapable witness; so too in many modern state codes (cf., e.g., art. 351 Cod. proc. pen. ital.; art. 458 Cod. pen. belga, 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). If, finally, the confessor cannot accuse his personal sins without compromising the sacramental seal, he may omit the accusation of his fault rather than expose himself to the violation of the sacramental seal.

Secondly, the following are subjects of the sacramental seal (cf. can. 889 § 2): 1) the interpreter eventually and freely chosen for the act of confession; 2) the ecclesiastical superior, to whom recourse has been made in order to obtain the power to absolve from reserved cases (cf. also cann. 2252, 2254 § 1); 3) the theologian or canonist, priest or layman, that is, anyone consulted by the confessor without or, according to the dominant and practically certain doctrine, with the license of the penitent, in order to resolve a difficulty. If, instead, the priest is consulted directly by the penitent, he is bound to the seal only in the case that the object of the consultation concerns the confession to be made to himself. 4) All those who, voluntarily or involuntarily, through malice or by chance, come to know the matter of the confession. But if someone, out of a spirit of penance or humility, were to make public confession of his faults, it is evident that those who listened are not bound by the sacramental seal. Moreover, anyone is bound to the seal who has knowledge, direct or indirect, of the sins of a penitent, whether through a criminal or non-criminal revelation on the part of a confessor, or for other reasons. So too is it said of one who, by chance or voluntarily, reads the confession written by the penitent, provided the writing is considered as an actual confession or as a means to an actual confession.

The penitent is not bound by the secret. Just as, for a reasonable motive, he can renounce his right and authorize the confessor to speak of his faults, so, and with greater reason, the penitent can speak of himself. Nevertheless there always remains the natural secret of not disclosing the words, the counsels or the prescriptions given by the confessor, when such manifestation would redound to the latter's harm, unless the common or general good requires it (cf. can. 904).

4. Violation of the sacramental seal and 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, that is, when the sin and the sinner are manifested explicitly or implicitly. Indirect violation, on the other hand, admits parvity of matter, that is, when from the words or actions of the confessor there can arise the danger of knowing the object of the sacramental seal and the person of the penitent.

Distinct from violation, even indirect violation, is the use of information acquired in confession. In fact the CIC clearly and carefully distinguishes between violations of the sacramental seal (can. 889) and the prohibition of the use of knowledge acquired in confession "cum gravamine poenitentia, excluso etiam quovis revelationis periculo" (can. 890 § 1). Such a prohibition exists even when there is no danger of direct or indirect violation, so long as the use of knowledge thus acquired redounds to the detriment (gravamen) of the penitent.

Therefore, a superior may not use sacramental knowledge for external governance, that is, in his governance he may not adopt or change dispositions while keeping in mind sins heard in confession (can. 890 § 2). The words of can. 890 § 1, cum gravamine poenitentia, that is, to the detriment of the penitent, must not be understood only of that particular penitent in question, but of any penitent, indefinitely considered; they mean, that is, that the sacrament of Penance must not be burdensome and troublesome to any penitent, knowing that at times the use of sacramental knowledge is lawful. Once, however, any danger of revelation has been eliminated and the gravamen poenitentia excluded, it is not forbidden to make use of information heard in confession.

Furthermore the Church absolutely forbids even reckless speech (cf. Instruction of the Holy Office, 9 June 1915), as regards things heard in confession, even for a good purpose. To certain superiors, moreover, it forbids hearing confessions as a matter of course, both in order to safeguard the freedom and sincerity of confessions and in order to prevent unlawful use, for the external forum, of information obtained in confession. Thus it forbids religious superiors the habitual hearing of confessions of their subjects (can. 518 § 2); the master of novices and any companions; rectors of a seminary or college with regard to their students, with the exception of extraordinary and individual cases at the spontaneous request of the person concerned (can. 891). It forbids, finally, that the confessor's vote be required when it is a question of admitting a student to the sacred Orders or of expelling him from the seminary (can. 1361 § 3). By ecclesiastical law the seal is obligatory for anyone who, by reason of spiritual direction, counsel, or exercise of jurisdiction, comes to know intimate matters concerning the relations of souls with God (cann. 243 § 2, 546 etc.), although in all these cases one is outside the sacramental seal and the use of sacramental knowledge.

The confessor who dares (praesumpserit) to violate the sacramental seal directly incurs excommunication latae sententiae (that is, ipso facto) reserved in a most special manner to the Apostolic See (can. 2369). Indirect violation on the part of the confessor and direct or indirect violation on the part of others, as well as the use of knowledge and reckless speech, are punishable by penalties ferendae sententiae (can. 2369; 2222; cf. Instruction of the Holy Office, cited).

Oriental priests also incur the censure latae sententiae. Knowledge of the most grave crime of direct and conscious violation of the sacramental seal on the part of the confessor belongs 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).

Angelo Criscito

III. SECRET OF THE HOLY OFFICE

It is a form of entrusted 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, as regards the appointment of bishops, and by those of the Sacred Congregation for Extraordinary Ecclesiastical Affairs: Letter of Pius XI, 5 July 1925: AAS, 18 [1926], p. 89) and by all those on whom this form of observance of the secret is imposed in an extraordinary manner.

The modalities of the secret are defined in the decrees of Clement XI (1 Dec. 1709) and especially of Clement XIII (1 Feb. 1759) and in the motu proprio of Bl. Pius X Romani Pontifices (17 Dec. 1903), now implicitly reconfirmed in cann. 239 § 1 and 243 § 2. Those belonging to the Sacred Congregations, tribunals and offices of the Holy See have naturally the obligation of the secret concerning matters of office, but the modalities differ according to the different Congregations, tribunals and offices and the importance or delicacy of the matters treated (cann. 243 § 2). In general this secret, confirmed by oath, concerns all those things in which "the sacred canons or the superiors shall command that the secret be kept" and binds also "when it is required by the Ordinaries and when from the revelation of some act a prejudice may derive to the parties or to the Church". The penalty for transgressors of this secret, when it exists, is no different from that which is generally inflicted on all perjurers.

The Holy Office, on the other hand, has an exclusive form of proceeding. Of it there forms part the strictest secret, with which all the affairs of this Sacred Congregation are treated, and, according to the instructions given by Bl. Pius X in the motu proprio of 17 Dec. 1903, it binds those who are bound by it "to fulfil faithfully their own office and to preserve inviolate in all things and with all persons the secret, under penalty of major excommunication latae sententiae, to be incurred ipso facto and without any declaration, from which they cannot be absolved, except by us and our successors, the Roman Pontiffs, privately and also in regard to the Penitentiary and the cardinal penitentiary himself, outside the case of the article of death". The indirect revelation of the secret is also subject to excommunication and, in case of doubt, the presumption stands in favour of the existence of the secret.

Giuseppe Palazzini

IV. PROFESSIONAL SECRET

It is a form of entrusted secrecy and binds those who, by reason of their state, office, profession (the term in this case being used in a comprehensive sense), or art, come to know reserved information pertaining to persons who have turned to them for counsel or help.

It tends to foster the special trust that is connatural to a particular office, and to guarantee free recourse to the practitioners of confidential professions, even in those cases in which it is keenly desired that one's own affairs remain hidden. The violation of professional secrecy is considered more serious than that of simple entrusted secrecy, by reason of its natural foundation and its repercussions on the common good.

The first condition for the existence of professional secrecy is the quality of the person bound by it. This person must have come to know the secret by reason of his own office, art, or profession; otherwise one may speak of other forms of secrecy or of entrusted secrecy in general, but not specifically of professional secrecy.

Among the most common professions in this regard are the priestly ministry, which forms, as it were, a category of its own, also because of the attached obligation of the sacramental seal; the profession of physician, pharmacist, midwife (or the health professions in general); of notary, lawyer, procurator, judge, technical consultant, magistrate in general, employee, official (taking professional secrecy in general as inclusive of official secrecy), etc. As for the quality of the confidence received or of the matter known, it must be a secret matter and therefore not notorious facts, of which the practitioner of that particular art or profession might have become aware through other channels as well. The secret, moreover, must be such that, if disclosed, it could cause harm. The harm may be either material or moral, and may concern either honor or patrimony. As for the intentional element, the general principles of the voluntary and the involuntary apply. The gravity of the fault in revealing a professional secret will be greater or lesser according to whether there was deliberate purpose and intention to harm, or merely the voluntariness of the revelation, or whether the revelation was made through a lack of that reflection which is found in the prudent man. The obligation of professional secrecy is not absolute in every respect; rather, it has the character of relativity.

The revelation of the secret, in order to be culpable, must be made without a just and proportionate cause. The assessment of the motives that can justify the revelation of a professional secret is a question 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, and of the person himself who is interested in maintaining the secret, when the harm attached to maintaining the secret becomes too great in comparison with the good. The obligation of professional secrecy protects a common good of great importance; but it is still always limited by the other requirements of human life.

1. Foundation of professional secrecy

All the opinions advanced to explain the foundation of the obligation of professional secrecy can be reduced to three: the first hinges on an obligation of a contractual order; a second, instead, links it to the natural right to good reputation; and a third explains it as a creation imposed by the requirements of the public good. In the most ancient legal systems, official secrecy first of all took the name of exemption from giving testimony in court. The legislator in fact forbade harmful and indiscreet revelations, which were not necessary for public order. In more recent times, instead, the character of illegality of the revelation of official secrecy is usually emphasized, being considered a crime comparable to theft or fraud. Between these two classes of opinions — the first of contractual foundation, and the second of institutional or public foundation — there is also an intermediate opinion which maintains that official secrecy is founded on contract as regards its object, and on the requirement of public order as regards its end. These opinions find acceptance especially among jurists.

For the students of natural law, professional secrecy is founded above all on man's right to good reputation: consequently he has the right not to be deprived of it by others. To that right in others corresponds the obligation not to violate it. This doctrine goes back to the doctrine of the Scholastics (Sum. Theol., 2a-2ae, q. 73 a. 1 c.; In IV Sent., d. 21, 9, 3, a. 1) and also stands at the foundation of the present-day doctrinal elaboration of moral theologians. The latter too hinge on the personal right to reputation, a right which, when properly respected, fosters the common good itself (hence the consideration of professional secrecy in positive law). The contractual bond, rather than lying at the basis of the obligation of professional secrecy, is a determination of it, inasmuch as one who has recourse to the professional, the public practitioner, etc., counts on the whole body of ethico-juridical norms that regulate the exercise of his profession on the basis of natural and positive law. The conflict of interests that may arise concerning those who have an interest in maintaining the secret or in its revelation must be resolved according to the principles of an ordinary conflict of laws, natural aequitate servata.

2. Professional secrecy in canon law

Although it is not spoken of explicitly, professional secrecy in the canonical order is also inclusive of official secrecy, just as, moreover, the consideration is identical under the moral aspect. Descending to particulars, one form of professional secrecy, proper to canonistic discipline and to the gravity and delicacy of the problems dealt with by ecclesiastical authority, is the secrecy of the Holy Office. In common form, official secrecy is obligatory also 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 with a particular oath (ibid., cap. 3: AAS, 1 [1909], p. 40) and is furnished with a special sanction (suspension from office, imposed by the Regolamento per il personale della Curia Romana: art. 73, 5). The Supreme Tribunal of the Apostolic Signatura has among the matters within its own competence that of judging denunciations brought against the prelate auditors of the Sacred Roman Rota for violation of official secrecy (can. 1603 § 1, n. 1). All those who receive information for admitting someone into an Order or Congregation — and not only superiors, but also examiners and counselors who read testimonial letters or receive information — are bound by the grave obligation of preserving the secret (can. 546). To all of these, the information is given for reasons of office.

In canonical discipline, professional secrecy takes these various forms: sacramental secrecy, quasi-sacramental secrecy, and extra-sacramental or official secrecy properly so called, to be observed in the sacred ministry. Quasi-sacramental secrecy arises from freely opening one's conscience to others, whether to satisfy a religious rule, as was prescribed in ancient times, or to enlighten the conscience, either on the occasion of confession or outside sacramental confession, when the matter does not fall within the object of the sacramental seal.

For the protection of these forms of secrecy, the ecclesiastical legislator declares priests incapable of giving testimony concerning all that they have learned in confession (can. 1757 § 3, 2), and exempts from giving testimony before a judge, concerning things they have learned by reason of their office or profession: priests, concerning things known by reason of the exercise of their ministry outside confession; magistrates, physicians, midwives, lawyers, notaries, and others bound to secrecy, concerning things they deal with by reason of office (can. 1755 § 2, n. 1).

For the common good and to avoid possible harm to the innocent party, official secrecy is always required in criminal trials; in contentious trials it may sometimes be imposed on the judge or on the assistants of the tribunal (can. 1623 § 1; cf. also can. 1943). Certain witnesses legitimately questioned by the judge are permitted to conceal the truth that they have come to know by reason of sacred ministry, office, counsel or assistance, insofar as they are bound by official secrecy (can. 1755 § 2, 1). In the process of removal, the examiners, the consultors and the notary must observe secrecy regarding everything they have learned by reason of office (can. 2144). Also bound by secrecy are the Ordinary, the priest who assisted at the marriage, and the witnesses in so-called marriages of conscience; but whenever the harm of the innocent party must be avoided and the good of religion requires it, the obligation ceases on the part of the Ordinary, because otherwise secrecy would be transformed into a bond of iniquity (cann. 1105-1106).

Official secrecy then obliges in a special way, by force of the oath that may have been taken. The binding force must be inferred from the tenor of the oath. There is in fact a common formula, which obliges according to the sacred canons, and a special formula, which can be imposed by Superiors; in this second case the violation of official secrecy is punished more severely with an ecclesiastical penalty to be incurred "ipso facto" (Ordo cit., chap. 3: AAS, 1 [1909], p. 41).

3. Professional secrecy in Italian law

The revelation of a professional secret is considered a crime, prosecutable upon complaint of the party. Likewise considered a crime is the use of secret information for one's own or another's profit. The penalty is imprisonment for up to one year or a fine of from 300 to 500 lire (Italian Penal Code, art. 622). The revelation of official secrecy by a public official, however, constitutes a specific crime (art. 326). Here too the right to abstain from testifying by reason of professional secrecy is recognized for many categories of persons (ministers of the Catholic religion or of admitted cults, lawyers, procurators, technical consultants, notaries, physicians, surgeons, pharmacists, midwives and practitioners of the healing art 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 official secrecy, but the authorization of the Minister of Justice is required (ibid., art. 352).

In order for the revelation of a professional or official secret to be chargeable as a crime, the law requires that certain conditions be met, such as: a) the revelation made, b) the quality of the person subject to secrecy, c) the circumstance in which one comes to know that the fact is secret, d) the criminal intent 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 intent. Conversely, the revelation of a secret without the intention of doing so cannot be called a crime by reason of its involuntary and unconscious character.

Pietro Palazzini