What the law says on the denunciation of sexual violence and the secrecy of confession

Interrogates on Franceinfo, Wednesday October 6, the day after the publication of the damning report of the independent commission on sexual abuse in the Catholic Church (Ciase), the president of the Conference of Bishops of France (CEF), Eric de Moulins-Beaufort, said than “The secrecy of confession is imposed on us and it is stronger than the laws of the Republic”.

Faced with the outcry over his remarks, Mr.^gr from Moulins-Beaufort to precise than “The secrecy of confession has always been respected by the French Republic” and “The canon law which imposes on priests the secrecy of absolute and inviolable confession is not contrary to French criminal law”.

According to canon law, specific to the Catholic Church, the “Sacramental secrecy is inviolable; this is why it is absolutely forbidden for the confessor to betray a penitent in anything, by words or in any other way, and for any reason whatsoever ”. The Church indeed considers that the penitent addresses himself directly to God and not to the priest. This canon law, however, has no legal value in France.

Are men of the Church legally bound, like doctors or lawyers, to professional secrecy? If so, are they forced to report sexual violence to the courts?

• The law sanctions the non-denunciation of certain crimes and misdemeanors

First of all, it is correct to say that French law punishes non-denunciation to the judicial authorities of certain crimes and misdemeanors.

Thereby, article 434-3 of the penal code states that the fact “For anyone who has knowledge of deprivation, ill-treatment or sexual assault or abuse” towards vulnerable persons for not informing the authorities until the offenses have ceased is punishable by three years’ imprisonment. This concerns the abuse inflicted on two categories of people:

• minors (the penalty is increased to five years for those under 15);
• people unable to protect themselves because of their age, illness, infirmity, physical or mental impairment or pregnancy.

This same article of the penal code specifies nevertheless that exceptions are envisaged, in particular for the people… bound to the secrecy.

• An exception for people bound to secrecy, including priests

Indeed, article 226-13 of the penal code even specifies that the revelation of a “Information of a secret nature by a person who is the custodian of it either by state or profession, or by reason of a temporary function or mission”, is punished by one year’s imprisonment and a fine of 15,000 euros.

This therefore concerns people bound by professional secrecy (such as lawyers or notaries, for example) or medical secrecy (doctors, nurses). It also applies to ecclesiastics, the secrecy of confession being assimilated to professional secrecy.

“We consider that there are three secrets which are more sacred than the others: doctor, lawyer and priest, secret of confession, medical secrecy, and professional secrecy of the lawyer”, confirm at World Jean Boudot, lawyer at the Marseille bar and who was one of the lawyers for the civil parties during the Barbarin trial. “This secret has been recognized by the Court of Cassation since 1891” and a was confirmed in 1977.

• Does non-assistance to a person in danger apply?

The subject is all the more complex as the law (article 223-6 of the Criminal Code) also punishes the fact of voluntarily refraining from preventing “By his immediate action, without risk for him or for third parties, either a crime or an offense against the bodily integrity of the person”.

An article that can be interpreted as imposing an obligation to intervene on religious people who become aware of sexual violence by their colleagues or subordinates. But several elements must be specified:

• the person having learned of the past facts must have the elements which show him that there is a strong probability of recidivism;
• his intervention is not necessarily a report to justice.

Without clear case law on the part of the judges, the contradiction between this article of law and that guaranteeing professional secrecy does not allow to conclude which is binding on the other, especially as the circumstances of each case must be taken into account. . “The non-clarity [de ces articles] allows all interpretations and debates, explains M^e Boudot, there may very legitimately be a debate on the issue. ” Michelle Meunier, senator from Loire-Atlantique, and co-rapporteur in 2020 of an information report on the obligation to report by professionals bound by secrecy of violence committed against minors, supports the same point:

“The current legislation, which articulates the exercise of the secrecy of confession and the obligation to report violence against children which must apply to all adults, is vague; its interpretation is open to debate. “

• But the law protects priests who wish to denounce facts

However, the law provides (article 226-14 of the penal code) some exceptions to the violation of professional secrecy. Thus, the revelation of information subject to secrecy is not punished if it concerns deprivation or abuse, including sexual assault or mutilation, inflicted on a minor or a vulnerable person unable to protect himself. .

In short, a priest who would like to reveal offenses of sexual assault on a minor heard during a confession has the possibility of doing so and does not incur any prosecution. But this faculty is not an obligation, because the article which punishes the non-denunciation of crimes and misdemeanors very clearly excludes persons bound to secrecy.

This text leaves the ecclesiastics the possibility of lifting the confessional secrecy while specifying that it is in no way an obligation. A 2004 Ministry of Justice circular explains in this sense that the absence of denunciation of cases of sexual assault against a minor under the age of 15 or a vulnerable person “Could not be penalized”, and that she “Can only be analyzed as a simple option, left to the discretion of the debtor of the secrecy, and not as an obligation”.

On the other hand, if a man of the Church becomes aware of such facts in circumstances other than a confession or a confidence, professional secrecy does not apply, and the law then compels him to report them. Confession and confidence being defined here as information voluntarily shared with the priest in order to be covered by secrecy.

It is for this reason that the bishop of Bayeux was condemned by the correctional court of Caen in 2001 for not denouncing the pedophile acts of a priest of his diocese: the bishop had taken cognizance of the facts not in the part of a confession or a confidence, but following the investigation he had conducted, which should therefore force him to report the facts.

There are, however, few other examples of convictions or acquittals concerning these subjects. “We have very little case law or doctrine on the question”, confirms Jean Boudot.

The Barbarin affair, named after the Cardinal Lyonnais prosecuted for not having denounced Father Preynat’s actions to justice when he had become aware of them, is sometimes cited as an example of case law on this question. However, this is not the case: Mr. Barbarin not having had knowledge of the facts during a confession or a confidence, professional secrecy has never been applied here.