When a penitent confesses sins to a priest or bishop, the confession is directed towards God Himself. The confessor has no right to tamper with the seal which binds this communication but only, as a minister of Christ to give counsel, and, if appropriate to give absolution so that the person can return to Holy Communion with a good conscience.
There is a good treatment of this subject in Volume II of Felix Cappello’s Tractatus Canonico-Moralis De Sacramentis in which he deals with the Sacrament of Penance. He points out that the preservation of the seal of confession is a grave obligation upon the confessor, both from the virtue of justice and from the virtue of religion.
The motive of justice is present because in hearing confessions, the priest has already entered into a binding contract in which he must remain silent concerning any sin that is confessed. However Cappello insists that the motive of religion is a greater consideration. If it were thought that priests would violate the seal of confession, it would prevent people from using the sacrament which brings one who is dead in sin back to the life of grace.
In the seal of confession, we are dealing not with a Church law that could be modified, nor are we promoting the privilege of the clergy: we are upholding a sacred trust given to the priest or bishop who hears confessions. Nor can the Church change this. As Cappello says when speaking of how the seal binds iure divino (by divine law):
The practice of the Church shows this in not acknowledging any power, even that of the Roman Pontiff, on any occasion or from any motive, of dispensing from this law.This obligation under divine law derives from the very nature of the sacrament itself in which a person confesses to God, by means of the priest, the sins which he has committed. The priest may refuse absolution to someone who is not sufficiently contrite or who does not have a firm purpose of amendment. He can require the penitent to take concrete means to eliminate any future occurrence of the evil that he has done and to make reparation as far as possible. In cases where serious harm has been done to others, the confessor should indeed insist on this. What he cannot do is to violate the seal by which he is bound in hearing the confession of such a sinner. If a priest were to presume that he had the right to reveal sins confessed to him in the sacrament, it would be the most extreme form of "clericalism" since he would actually be attempting to exercise a divine prerogative, rather than submitting to the ministerial role that he has been given on trust.
In the case of grave sins which harm others, Cappello says this:
Where the priest, through confession, knows an evil which threatens another or the state, he can only urge the penitent, under the penalty of denying absolution, that he should either make the matter known himself, or give the power to the confessor to speak.This would be the correct way for a confessor to proceed in the (very rare) event that someone were to confess to abusing children. We do not normally have murderers and child molesters in the queue for confession; the supposition that we do is a common fantasy of people who don't normally go to Church very much. But it is possible that a child molester might be so deluded as to think that he could go to confession and get three Hail Marys and absolution.
This is an area where the Holy See could act. It does rather seem that, at least for clergy, the time has now come to make such crimes reserved sins, and imposing stringent conditions for absolution. This would mean that a simple confessor would not have the jurisdiction to absolve such a penitent and would have to refer the case to the Holy See (preserving the anonymity of the penitent, and therefore safeguarding the seal.) Such a procedure is already provided for in canon law for certain crimes. If the Holy See were to do this, it might go some small way towards an honest recognition of the anger that people feel towards the Church.
Getting back to the question of ius divinum, Cappello cites evidence from Origen, Aphraates, Asterius Amasenus, Paulinus, and Augustine speaking of the duty of silence regarding sins confessed and not known to others. St Leo the Great, in his letter to the Bishops of Campania refers to this as an apostolic rule. From this time, canons were issued against those who broke the seal of confession: Gratian records the penalty of deposition for anyone who violated the seal; the 4th Lateran Council imposed a further sanction:
For if anyone presumes to reveal a sin disclosed to him in confession, we decree that he is not only to be deposed from his priestly office but also to be confined to a strict monastery to do perpetual penance. (4th Lateran Council. canon 21)According to Cappello, this law (excluding confinement to a monastery) was regarded speculatively as remaining in force until the 1917 Code of Canon Law (canon 2639.1) which imposed the penalty of automatic excommunication reserved to the Holy See for a direct violation of the seal of confession. The 1983 Code which is currently in force imposes the same penalty.
There is simply no option for a priest – he must observe the seal of confession and, if necessary, go to prison or even to his death for the sake of this obligation which is binding by divine law. “We must obey God rather than men.”
The next question to address is what the priest should say and do if asked about matter that is under the seal? That is for another post, I hope sooner rather than later.