# LCMS Convention Workbook_St. Louis Missouri_2001_S355
# Machine transcription, uncorrected — CHI Digital Archive (demonstration)

THEOLOGICAL DOCUMENTS—COMMISSION ON THEOLOGY AND CHURCH RELATIONS 355

THE PASTOR-PENITENT RELATIONSHIP!

Privileged Communications

A Report of the Commission on Theology and Church Relations
of The Lutheran Church—Missouri Synod
September 1999

Introduction

lationship have been considered legally privileged. It was
generally thought that a clergyman could not be compelled
by law to divulge the contents of such communications. However,
pressures within the legal system in recent years have been brought
to bear upon certain of these types of communications. A report in
Christianity Today titled “Pastoral Privilege Questioned” detailed
a possible court battle over the use of information confessed to a
priest in the confessional in a case involving sexual abuse among
Roman Catholic clergy.” Attempts have been made to record the
private confessions of prisoners in the State of Oregon. The result
was a vigorous protest from the Portland Archdiocese.’ And, in
England Basil Cardinal Hume, the late Roman Catholic Archbishop
of Westminster, thwarted attempts by the British government to
conceal microphones in confessionals to catch criminals.‘
Particularly with the rise of reports of sexual abuse, pressure is
being placed on clergy to reveal what is said to them by the peni-
tent under the seal of the confessional. Some states have enacted
statutes compelling certain professionals, including clergymen, to
report suspected cases of child abuse, even where the suspicion or
knowledge arises in the context of a confession.* A recent article
by a Congregational Church pastor details some of the specific
concerns shared by clergy over these issues.°

"Tiistershi} communications within the “pastor-penitent” re-

The Lutheran View of “Privileged
Communications and the Pastoral Office”

In the Lutheran church communications between a pastor and
a penitent in the pastor’s administration of the duties of his office,
particularly in the care of the souls entrusted to him, consistently
have been regarded as confidential. Such communications include
private confession and absolution’ and private pastoral instruction
and counsel. By virtue of his ordination and the office into which
he is called, the pastor has had his lips sealed from speaking about
the sins of the penitent to anyone, including a court of law.’

Martin Luther said very little about privileged communication
between the pastor and the penitent, especially in terms of some of
our contemporary concerns. However, he did write a brief pam-
phiet in 1521 titled “An Instruction to Penitents Concerning the
Forbidden Books of Dr. M. Luther” in response to the use of the
confessional by confessors to investigate whether the penitents
were reading Luther’s writings. He encourages those penitents who
are subjected to such scrutiny to say the following to their father-
confessor:

“My dear sir, you are a father-confessor, not an officer. | am
obliged to confess what my conscience prompts me to confess. It is
not your duty to force me to confess; neither is it your duty to probe
the secrels of my heart. You might just as well inquire how many
pennies | have in my pocket. If I do not tell something | know, then
the risk is mine—what business is it of yours? Absolve me as is
your duty, and after that argue with Luther, the pope, or whomever
you like. Do not make the holy sacrament of confession the occa-
sion for a quarrel, or a disputation, or a source of danger for me.
This kind of matter does not belong to the confessional. I will an-
swer these charges at the proper place or time.”

| also make the same request of the father-confessors and ask
them to restrain themselves and not snatch at God's jurisdiction.
The secrets of the heart are reserved for him alone, as Psalm 7[:9]
says, “He searches the reins and the heart.” They should thank God

that they are through with a line of inquiry so fraught with danger
and are obliged to do nothing more than to hear confession and pro-
nounce absolution. There is no need to force anyone to disclose the
secrets of his heart.°

Dr. C.F.W. Walther refers to Luther’s comments concerning
privileged communication between the pastor and penitent in
Luther’s Table Talk:

The preacher must not reveal what has been confessed to him. In
Luther’s Table Talk it says: “Someone asked Dr. M. Luther and
said: If a pastor and father confessor had absolved a woman who
had killed her child, and it was later revealed and made known by
other people, would the preacher also have to testify to the judge if
he were asked about it? Then he [Luther] answered: Absolutely not!
For one must distinguish between churchly and worldly government
since she has confessed it not to me but to the Lord Christ, and if
Christ keeps it secret, I should also keep it secret and say nothing
more than: I have heard nothing; if Christ has heard something, let
Him tell it” (XXH1, 879).

When Luther was told that the [city] council of Venice had sen-
tenced to be burned a monk who had absolved someone for a mur-
der he had confessed to him and had then let himself be moved by
bribery to reveal it, Luther stated: “This is a correct, good, reason-
able sentence and wise decision of the council, and the monk is
properly burned as a betrayer.”'”

It is clear that the privacy of the confessional was taken very seri-
ously by Luther.

Dr. Walther devotes considerable space in his Pastorale to the
seal of confession and confidentiality. Appealing to Johannes
Fecht, a theology professor at Rostock (1636-1716), and an ortho-
dox Lutheran who was opposed to Pietism,'' Walther writes:

A preacher who gossips about what has been confessed to him
has forfeited his office and deserves 10 be deposed. Fecht writes:

“That obligation (not to break the seal of confession) is based on a

tacit contract between the one hearing and the one making the con-

fession. For if a minister of the church were not obligated to the
strictest silence, ihe listener would be acting very foolishly if he
confessed anything to him that could be damaging . . . . Also in this
action the minister of the church is not considered to be an accuser,
an investigator, or a judge. Finally not only the Roman church but
also our whole Lutheran church commands that this silence be con-
sidered holy. With reference to the seal of confession, however, it
should also be noted that it extends not only to what occurs in the
confessional chair ilself between the one hearing and the one mak-
ing the confession, but also to all other private actions which the fa-
ther confessor undertakes paslorally [see/sorgerisch] with the one
making the confession unless he had explicitly recognized what he
was speaking to him in a different relationship [in other words, the
whole pastoral relationship is confidential]. (Instruct. pastoral., Cap.

XIII, sec. 33, p. 151).

The preacher should guard his tongue with all seriousness. Even
if he presents a case without names for instruction, he should see to

il that he does not do it in such a way that others can guess about

whom he is speaking. He should destroy letters that contain confes-

sions as soon as their purpose has been fulfilled.'*

A clear line of continuity exists between Walther and 20th cen-
tury Missouri Synod practice as it is expressed in John H.C. Fritz’s
Pastoral Theology and the Pastoral Theology of Norbert H.
Mueller and George Kraus.'* Dr. Fritz’s Pastoral Theology con-
tains an extended discussion concerning the seal of the confes-
sional. In a section titled “Sigillum Confessionis” [the seal of con-
fession] within Chapter 12 on “The Sacrament of the Altar,” Fritz
writes:

A pastor should never reveal what has been told him by way of pri-
vate confession. A pastor who becomes guilty of such an offense, says
Walther, deserves to be deposed from office. When a confession is
made, it is in the very nature of the case that there really exists a silent
agreement between both parties that whatever is confessed is said inter
nos in the strictest sense of these words and dare not be revealed. That
holds good not only when persons make a confession prior to receiv-
ing Communion, but at any time: at the sick-bed, when the pastor makes
a pastoral call, when a member comes to see the pastor expressly for
that purpose, or whatever the circumstances may be. In this respect
Christians ought to be in a position to put absolute confidence in their

2001 Convention Workbook