LCMS Convention Workbook St. Louis, Missouri — 2001, Page 357

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THEOLOGICAL DOCUMENTS—COMMISSION ON THEOLOGY AND CHURCH RELATIONS 357

Summary Principles and Practical Guidelines

Before we provide a set of guidelines, it may be helpful to sum-
marize the general principles upon which they are based and that
govern the pastor-penitent privilege.

1. The Lutheran Church—Missouri Synod practices and
encourages individual confession and absolution which is a
significant function of the pastoral office.

2. Historically, the Lutheran church has consistently and
resolutely maintained the seal of the confessional, that is,
the confidential nature of confessional communications.
The Lutheran church expects its pastors to maintain this
position.7”

3. Scriptural teaching regarding the pastoral office and its
responsibilities supports the principle that communications
made to a pastor by a person confessing his or her sin(s)
are not to be disclosed.

4. Although there may be a distinction between
communications to a pastor that are confessional in nature
(made for the purpose of receiving forgiveness) and those
that are not (offered for other reasons), communications to
a pastor as pastor—except in the most extraordinary
circumstances—are to be held in strict confidence as
privileged communications.

5. Although certainly to be respected, the status of the civil
law as it relates to confidential communications to a pastor
does not dictate a pastor’s decision as to whether and to
what extent a communication is to be divulged.”

Therefore, the Commission on Theology and Church Relations
offers the following guidelines for a pastor regarding confidential
communications” received by him in his capacity as pastor:*”

1. A communication made by a penitent seeking absolution
for a particular aci must not be divulged, even if the act
was criminal and even if the law may compel its
disclosure.*'! We recognize that in such an instance, the
pastor’s refusal may lead to criminal prosecution while his
disclosure may lead to church discipline.

2. A communication made outside the context of a confession
by a person who recognizes the sinfulness of the conduct
communicated and who is not likely to put others in danger
by repeating it, is not to be divulged.”

3. Where a communicalion made to a pastor is confidential, it
should not be disclosed solely because the penitent shared
the communication in the presence of a third person.”

4. Where a communication is made (whether in or outside the
context of a confession) suggestive of an intended and/or
imminent harmful act such that the person’s or someone
else’s safety would be jeopardized if steps were not taken
to hinder the penitent, a pastor must exercise his judgment
in protecting the inierests of those in danger.“

Certainly situations may arise that are difficult to place within
these guidelines. In such circumstances a pastor should seek the
counsel of his fellow pastors and above all seek to discern God’s
will through prayerful examination of Scripture, the Lutheran Con-
fessions and the writings of the fathers and teachers of the church.

Finally, the Commission recommends that congregations adopt
these guidelines and make them generally available to their mem-
bers.

Notes

1. This document responds to a September 1994 request from
the Board of Directors of the Eastern District of The Lutheran
Church—Missouri Synod “‘to study the question of privileged com-
munications within the ‘pastor-penitent’ relationship on the basis
of Scripture, the historical tradition of the church, and legal con-
straints” for guidance to the members of the Synod.

2. “Pastoral Privilege Questioned,” Christianity Today 26 (Jan-
uary 11, 1993):42. ;

3. See the report on “Recording of Prisoner’s Sacramental Con-
fession Violated Rights” in Origins 26 (February 6, 1997):537-45.

4. From the “Ecumenical News International” on the Internet,
February 14, 1997.

5. See, e.g., Ohio Reviscd Code, Section 2151.42].

6. D. Elizabeth Audette, “Confidentiality in the church: What
the pastor knows and tells,” The Christian Century 115 (January
28, 1998):80-85.

7. See Luke 10:16; John 20:21-23; Matt. 16:1 8-20.

8. Wilhelm Léhe wrote concerning “The Seal of the Confes-
sional”: ‘For his oath of office has already pressed a seal upon the
lips of the father confessor, to wit, that he dare not say what has
been entrusted to him in Confession. In him you have a friend who
has been obligated by God Htmself to be your true friend and to
guard his tongue, hence, a friend who has an advantage over every
other. It is even as though you spoke your confession into a silent
tomb; as little as this taciturn place will your father confessor tell
on you. Yes, the father confessor receives your confession in God’s
stead, and just as God hears and keeps secret all confessions, so
must also the father confessor keep everything secret.

Note: Not even at the insistence of worldly authority dare a fa-
ther confessor reveal a confession. ‘So long as God keeps silent.’
says Luther, ‘should the chaplain or whoever hears confession also
keep silent. For he who confessed it to him, has not confessed it to
a man, but to God, in whose place the preacher sits. Therefore, he
shall keep it secret.’ “Onc must distinguish between Church and
worldly government.’ is his topic.” Wilhelm Lohe, “Simple In-
structions in Confession,” trans. Delvin E. Ressel and cited in Una
Sancta X, No. 2 (1951): 9.

9. Martin Luther, “An Instruction to Penitents Concerning the
Forbidden Books of Dr. M. Luther” (1521), Luther’s Works, Amer-
ican Edition [hereafter LW ] (Philadelphia: Fortress Press, 1966),
44:224.

10. C.F.W. Walther, American Lutheran Pastoral Theology,
translated and abridged by John M. Drickamer from the Fifth Edi-
tion, 1906 (New Haven. MO: Lutheran News, Inc., 1995), 126-27.

11. Walther cites from the second edition of J. Fecht’s Instruc-
tio pastoralis (1722), which is edited by G. F. Fecht. By using
Fecht, Walther shows that there is continuity between Luther and
later Lutheran theologians.

12. Walther, American Lutheran Pastoral Theology, 127. See
also Fred L. Precht, “Confession and Absolution: Sin and Forgive-
ness,” in Lutheran Worship: History and Practice, ed. Fred L.
Precht (St. Louis: Concordia Publishing House, 1993), 346-47. Dr.
Precht cites Kirchen-Agende fiir Evangeliscl-Lutherischen
Gemeinden ungednderter Augsburgischer Confession [22], the first
agenda of the LCMS., and notes the following about the order of
Holy Communion for the sick that indirectly addresses the privi-
leged character of the pastor/penitent relationship: “The privacy of
this confession is guarded by the rubric that directs everyone ex-
cept the pastor to leave the room” (347).

13. John H.C. Fritz, Pastoral Theology: A Handbook of Scrip-
tural Principles (St. Louis: Concordia Publishing House, 1932),
and Norbert H. Mueller and George Kraus, Pastoral Theology (St.
Louis: Concordia Publishing House, 1990).

14. Fritz, Pastoral Theology, 135. In a footnote on p. 136 Fritz
notes: “While preparing the MS. [manuscript] for this book, a
Lutheran minister in the State of Minnesota was held in contempt
of court and sentenced to a fine of $100 or to serve thirty days in
jail because he refused to divulge a confessional secret; however,
the Supreme Court, to which the case was appealed, sustained the
pastor. Theol. Mthly., Vol. 0 [1931], p. 705.” (emphasis in Fritz)

15. Mueller and Kraus, Pastoral Theology, 122. This discussion
of confidentiality occurs in a chapter dedicated to “Individual Con-
fession and Absolution” in “Unit IV: The Pastor Applies the Word
and Sacrament in Individual Circumstances.”

2001 Convention Workbook