Who Decides Whether a Catholic Has Been Excommunicated?

Q: My (big mouthed!) spiritual director directly broke the seal of confession (names and sins) privately to me not once but twice (same conversation)….  When it happened, I called him out on it and told him he had just excommunicated himself and was under latae sententiae penalty and needed to rectify the situation immediately.

… Is that all that needed to be done?  Was I supposed to notify the bishop?  Was he supposed to notify the bishop? –Nicole

A:  If you read the recent post, “Excommunication and the Seal of Confession (Sanctions, Part VI),” you might be wondering whether that the priest who asked that question was talking about the very same incident described here.  In actuality, these two questions were submitted several years apart, and came from different regions of the globe—proving thereby that while it presumably doesn’t happen every day, there’s nothing unique about this situation either.

Nicole has asked what she thinks is a straightforward question, but there’s a lot more going on here than meets the eye.  At issue are
(1) what canon law tells us about violating the seal of confession;
(2) how excommunication latae sententiae works;
(3) how a determination is made that a Catholic has incurred this penalty; and finally,
(4) what this particular priest did/said in this case, and its canonical ramifications.

Let’s look at each of these points in turn, and then the answer to Nicole’s question should be more clear.

(1)  First of all, as was discussed at great length in “Can a Priest Ever Reveal What is Said in Confession? (Part I)” and “(Part II),” the Church teaches unequivocally that the sacramental seal is inviolable (c. 983.1).  Seminarians routinely have it hammered into their heads that there are no exceptions!  The seriousness of the seal of confession is reinforced by canon 1386.1, which declares that a priest who directly violates the sacramental seal incurs a latae sententiae  excommunication, reserved to the Holy See.  (In “Excommunication and Bad-Mouthing the Pope,” as well as “How Does an Excommunicated Catholic Have the Sanction Lifted? (Part I)” and “(Part II),”  we looked at excommunications which are specifically reserved to the Holy See.)

That said, real-life situations arise all the time where it’s not crystal-clear whether a priest technically “violated the seal” or not (see “Can a Priest Ever Reveal What is Said in Confession? (Part II),” already mentioned above, for some examples).  Down through the centuries, the Church has refrained from giving any further directives on this matter.  While one might think that official clarification would sometimes be very helpful (e.g., can a priest repeat something mentioned in passing during confession, which has absolutely nothing to do with the sins confessed? or can he repeat the content of a confession with the penitent’s express permission?), the Church has wisely avoided any discussion of specifics—knowing that any discussion that created distinctions would invariably weaken the absoluteness of the prohibition.  When in doubt, just don’t repeat anything.

(2)  In “Have Pro-Abortion Politicians Excommunicated Themselves?” the way that latae sententiae penalties work was discussed in great detail.  Canon 1314 tells us that latae sententiae penalties are incurred ipso facto upon the commission of a delict (i.e., a crime), if the law specifies this.  In other words, if a Catholic commits a delict which is punishable by a latae sententiae excommunication, he/she incurs the penalty at once, without a church official conducting a trial or making any kind of public declaration.  Thus it can indeed happen that a Catholic incurs a latae sententiae penalty—even excommunication!—without anyone else on earth even knowing about it.

It is critical to note, however, that before jumping to any conclusions about whether someone has been excommunicated latae sententiae, it first has to be determined whether all the conditions of canon 1323 have been met. This canon provides a whole list of situations, any one of which will render a person not liable to a penalty.  These conditions were addressed in greater detail in both “Am I Excommunicated? Sanctions, Part I,” and “Is She Excommunicated? Sanctions, Part II,” but briefly, no Catholic is subject to any penalty if he is under the age of 16 (c. 1323 n. 1); was ignorant that his action was a violation of the law (n. 2); was forced to commit the crime (n. 3), or committed it under fear (n. 4); acted in self-defense or in the defense of another (n. 5); or lacked the use of reason (n. 6, as is the case with mentally ill, mentally handicapped, and senile persons).

On top of all that, the very next canon gives us yet another list of conditions, under which a penalty is to be reduced.  Canon 1324.1 declares that even if a Catholic has committed a delict and is not exempted by any of the conditions mentioned in canon 1323, he still is not subject to the full penalty if he meets any one the conditions on this second list.  This list includes (but is not limited to) a delict committed when the perpetrator’s use of reason was impaired (c. 1324.1 n. 1), perhaps from “culpable drunkenness or a mental disturbance of a similar kind” (n. 2), or because he acts in the “heat of passion” (n. 3); a crime committed by one compelled by grave fear, or “who acted by reason of necessity or grave inconvenience, if the offence is intrinsically evil or tends to be harmful to souls” (n. 5); or a delict committed by “one who acted without full imputability, provided it remained grave” (n. 10).  It should be fairly evident that conditions listed in canon 1324 are extremely nuanced, and so determining whether a Catholic meets any of these conditions can quickly become complex.  This fact will lead us logically to the next point.

(3)  Leaving these nuances and complexities aside for a moment, there’s one very important take-away from all this: while other people might have absolutely no idea that a Catholic has incurred a latae sententiae penalty, the person who incurred it does.  If you’ve been excommunicated latae sententiae, you can’t be unaware of it!

The fact is, it’s impossible, canonically and theologically, for a Catholic not to know that he’s been excommunicated latae sententiae … while other people do know.  This scenario makes no procedural sense!  A Catholic can’t unknowingly get excommunicated.  Thus you can’t know that another person has been excommunicated latae sententiae, if he doesn’t know it himself.

If a Catholic has incurred a latae sententiae excommunication—which means he is aware of that fact—we may piously hope that he will want to rectify the situation by seeking to have that excommunication lifted, after which he will return to full communion with the Church.  This process was discussed at length in the abovementioned “How Does an Excommunicated Catholic Have the Sanction Lifted? (Part I).”

But what if, on the other hand, a Catholic appears to others to have taken himself outside the bounds of communion with the Catholic Church, yet doesn’t seem at all concerned about it?  Imagine, for example, a theologian who is openly writing or preaching things which are heretical (which canon 1364.1 tells us is punishable by excommunication latae sententiae), while continuing to behave as if he’s a Catholic in good standing, and nothing is wrong.  What happens in this sort of situation?

We don’t need to theorize about this scenario, because it has actually happened countless times over the course of church history.  Someone writes a theology book, or a cleric preaches a homily (see “Who May Preach?” for more on this), and a reader/listener objects to its perceived heterodoxy.  This is then reported to the local bishop—or if the writer/preacher is a member of a religious institute, to his religious superior—who reviews the matter.

Sometimes it’s immediately obvious that there’s nothing wrong at all, and the accuser either doesn’t understand Catholic teaching, or misunderstood what he had heard.  But if it’s not obvious, what does the bishop/superior do?  He certainly doesn’t leap to conclusions and publicly declare that the accused is a heretic, excommunicated latae sententiae!  Rather, his first move will be to contact the accused and ask him exactly what he meant in that book/homily when he said xyz—does he understand that this conflicts with Catholic doctrine?  Does he understand that it constitutes heresy, an excommunicable offense?

As was discussed in “Was Theologian Hans Kűng Ever Excommunicated?” it can indeed happen that the author is genuinely shocked, because he never realized that the wording of his theological statements could be interpreted as conflicting with Catholic teaching!  Once it’s pointed out to him, he will freely and willingly take measures to correct this, by clarifying what he really meant.  It should be evident that a Catholic in this situation isn’t a “heretic” and most definitely was not excommunicated latae sententiae, not even for an instant.  But note that it first took some frank and open communication with his superiors in the Church, before the situation became clear.

Armed with all this technical information, let’s now move on to the final point—and see whether/how it applies in the case which Nicole describes.

(4) Nicole tells us that her spiritual director twice repeated to her “privately” the sins she had confessed.  It would appear, although it’s not completely clear, that she had mentioned these sins only within the context of the sacrament of Penance, and had never repeated this information to him outside of confession.  If she had told the priest about these sins both within the confessional and outside it, there would be no issue here at all, since he would be able to discuss with Nicole the things she had told him outside the context of confession.

Note that this priest has not only heard Nicole’s confession; he also is (or was!) Nicole’s spiritual director.  This implies that she has told him some things about her spiritual life within the sacrament of Penance, and some things about her spiritual life in the course of spiritual direction.  The first category, of course, is strictly bound by the seal of confession; the latter can include things which the spiritual director might reasonably bring up again in a subsequent conversation.

Nicole says that outside the context of confession, the priest mentioned to her some sins which she had only told him in the confessional.  It would appear, although she doesn’t specifically say so, that this happened in the course of spiritual direction.  Did the priest violate the seal of confession?

Well, if Nicole is mistaken—because she really did talk to him about these things outside of confession and has forgotten—then this priest has done nothing wrong whatsoever.  As was just mentioned, spiritual direction is unquestionably a private matter, but the seal does not apply to it.

But if what Nicole tells us is accurate, and the priest repeated sins to her which she had only told him in confession, then yes, it seems clear that the priest did indeed violate the seal of confession.  It should be evident to all that this is no laughing matter—but did he incur excommunication latae sententiae, as per canon 1386.1?  Note that as discussed above, the first does not automatically imply the second.

The answer to the question is actually rather simple: we don’t know!  What was going on in the priest’s mind when he did this?  Did he know full well that (a) he was repeating sins which Nicole had only told him during confession, in violation of the sacramental seal, and that (b) this violation is punishable by excommunication latae sententiae … and yet he still went ahead and freely, deliberately did it anyway, knowing what the consequences of this action would be?  If so, he would appear to have met all the conditions for incurring this sanction.  Yes, it’s possible that this is what happened; but it seems far more prudent to be skeptical that this is what actually occurred.  Generally speaking, why on earth would a parish priest do such a thing?

On the other hand, did the priest sincerely (but erroneously) believe that Nicole had mentioned these things to him outside of confession—or that during her confession, she had given him permission to bring these sins up during spiritual direction later?  If the priest has many penitents/spiritual directees, it’s not impossible that he mixed Nicole up with someone else, who perhaps had told him outside the confessional about committing similar sins.

There’s yet another possible explanation for the priest’s action.  Did he understand that the “seal of confession” involves maintaining silence about a penitent’s sins, even to the penitent himself?  Was the priest aware that he could not bring these matters up, even during spiritual direction?  Sadly, the possibility that he is ignorant of the rules cannot be discounted, given the subpar seminary training that many priests receive worldwide, through no fault of their own.  (Incredibly, I once met a priest/canonist who had frighteningly erroneous ideas about what can and cannot be repeated by a priest—even after many years in both parish ministry and canonical work!)  As unlikely as this scenario may seem, it definitely does happen.  And if, through no fault of his own, a priest honestly doesn’t have a correct understanding of  how the sacramental seal works, he can’t be held culpable for violating it (see c. 1323 n. 2 again).

If so, this is not to suggest that such confusion or error makes what the priest did okay—it most certainly is not.  A priest is expected to make tremendous effort to maintain the sacramental seal at all times, no matter what!  But if this happened as the result of a genuine mix-up, despite his best efforts, then it’s pretty difficult to see how the priest incurred excommunication in this case.  As was addressed at greater length in “Excommunication and the Seal of Confession (Sanctions, Part VI),” inadvertence and error render a Catholic who has committed an excommunicable offense not liable to that penalty, as per canon 1323 n. 2.

So if a penitent encounters a priest repeating the sins which he/she told him only during confession, what can/should that penitent do about it?

Well, by all means feel free to point out to the priest what he just did!  He is obliged to maintain the sacramental seal, and yet he just repeated what he had only heard in confession.  Does he realize this?

He might be just as startled and horrified as you are—particularly if he mistakenly thought that you had told him this info in another setting, or that you had specifically given him permission to repeat it to you in the course of spiritual direction, or somehow in his mind he got you mixed up with someone else who had done this.  Depending on the circumstances, the whole incident might end right there, although it would be only natural for the penitent to feel betrayed for a long time to come.

Or the priest might look at the penitent blankly, and wonder what the problem is—because he somehow never learned the proper meaning of the sacramental seal.  Under these circumstances, you can only wonder if he’s committed this sort of violation with other penitents as well.  Since the penitent is not the priest’s superior, it’s hardly appropriate for him/her to give the priest an angry, on-the-spot theology lecture about the seal of confession; it would make more sense to write a clear, calm, respectful letter to the priest’s bishop or religious superior, explaining what happened.  It’s the superior’s responsibility—not ours!—to make sure that the priest understands the seal of confession correctly.

But what if the priest responds by airily scoffing at the penitent’s objections—making light of the seal of confession and indicating that he’s not all that concerned about what he just did?  As unlikely as this scenario might be, it’s not impossible; and once again, if the priest has done this to one penitent, he might easily do it to others!  In this general sort of situation, it would likewise be best for the penitent to document the conversation (again, calmly and respectfully), and direct it to the priest’s superior.  If there’s any potential here for a canonical sanction, it will be up to the superior to point that out to the priest, and have a frank, private discussion about what happened, why it happened, and why it should never happen again.

Now let’s go back to Nicole’s original question, and look at the way she says she reacted to the priest repeating the content of her previous confession to her.  By now it should be obvious that regardless of what exactly just occurred and the priest’s reasons for it, it is never, ever appropriate to inform another Catholic (priest or not!) that he just incurred excommunication latae sententiae.  Yes, you might be sure that the priest just violated the seal of confession—but no, you do not know what was going on in his mind when he did it, and whether he just incurred a canonical sanction or not.  At that moment in time, the only ones who know that are the priest himself, and Almighty God.

There’s no question that when a priest serves both as confessor and as spiritual director to the same person, it’s critical for him to keep the information he learns in the confessional separate from what is said in the course of spiritual direction—and sometimes this can get tricky.  (This is, incidentally, why priests will often encourage a spiritual directee to confess his/her sins to a different priest if at all possible, thereby eliminating any chance for confusion.)  When we Catholics confess our sins, we rightly assume that the confessor won’t one day repeat back to us what we told him, and it would be entirely understandable if we became angry and upset if he did.  But declaring that he has incurred excommunication, the most serious canonical sanction of all, is not our job.  And in any case, if the priest has in fact just been excommunicated, we don’t need to tell him—because he already knows.

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