March 13, 2023

Lawmakers Challenge the Secrecy of the Confessional

In a handful of states, there are now legislative efforts to overrule the clergy-penitent privilege.

Here is a proposition no reasonable person could argue with: There must be laws protecting minors from abuse and neglect and bringing those who hurt children to justice. Every state has such laws on its books.

Here is a second proposition: People in professions that involve frequent contact with children, such as social workers, teachers, doctors, or nurses, should be “mandated reporters” — i.e., required by law to notify officials when they learn or suspect that a child is being abused. That too is the law in every state. Some go even further, requiring all persons, regardless of their profession, to report suspected abuse or neglect.

Now consider a different kind of proposition, also broadly accepted: Some relationships between two people, like that between a clergy member and a penitent, are so important to society, and so dependent on absolute trust, that the law cannot compel one party to reveal what the other has said in confidence. There are only a few such privileged relationships (attorney-client and doctor-patient are the others), and they have been rooted in American law for 200 years.

Until very recently, these three propositions coexisted everywhere, striking a balance between the best interests of children and the imperative of religious freedom.

But in a handful of states, including Vermont, Washington, and Delaware, there are now legislative efforts to overrule the clergy-penitent privilege. That would mean that priests could be required to report information even when it was obtained under the seal of the confessional — a violation so grave in the eyes of the Catholic Church that a priest who commits it is punished with automatic excommunication. (Though the Catholic stricture on the secrecy of confession is the best known, other religious denominations — among them, Episcopalianism, Orthodox Christianity, and Mormonism — also obligate clergy to keep a penitent’s confession secret.)

There is little doubt that these bills are being advanced with the best of intentions. In Vermont, for example, the sponsor of the legislation is state Senator Dick Sears, a Bennington Democrat who chairs the Judiciary Committee and has long been a leader in efforts to protect vulnerable children. He hadn’t realized that the law making clergy members mandated reporters exempted information acquired in the confessional, he told the Associated Press, and his bill is intended to end that exemption.

“My gut reaction is nobody should get a free pass,” Sears said.

But is there any evidence that child abusers are getting a “free pass” because the law protects the secrecy of religious confession? As it happens, that issue has been intensively studied in the wake of the sexual abuse scandal in the Catholic Church, which was exposed by the Globe in 2002. According to Eric Kniffin, a civil rights attorney and a fellow of the Ethics and Public Policy Center, “more than a dozen in-depth grand jury or attorney general reports have been produced since 2002, yet none have pointed to the sacrament of confession as a contributing factor, let alone a major factor [in protecting abusers].”

Perhaps, as Bishop Christopher Coyne, the head of Vermont’s Catholic diocese, observed when he testified at a legislative hearing on March 3, that is because the rule of secrecy does not apply in any religious setting outside the confessional. Priests and other clergy members acquire considerable information in non-confessional settings, none of which is exempt from being reported. “The conversations that we have in our offices, the counseling sessions that we do, the spiritual direction that we do — none of that is privileged, and it is all included under the mandatory reporting statutes,” Coyne told lawmakers.

The point is deepened by the American theologian Cathy Caridi. “Priests can find ways to help the authorities without revealing the content of a person’s confession,” Caridi writes in her blog on canon law. If a penitent indicates that he intends to kill or harm someone, a priest can alert the police that the intended victim is in danger, as long as he does not disclose how he obtained the information. She describes a case “in which police received a phone call from a priest, warning them that two teenaged sisters were in danger at that very moment. The police understood that the priest was not permitted to give them more specific information, and simply located the girls … and made sure they were protected.” The priest in that instance was able to help thwart a crime without violating the sacramental seal.

The privileged status of clergy-pentitent communications has been recognized in US common law since at least as early as 1813, reinforced by statute in every state and in judicial decisions. In a 1990 case, the US Court of Appeals for the Third Circuit held that “the clergy-communicant relationship is so important, indeed so fundamental to the western tradition, that it must be sedulously fostered.”

As a practical matter, abrogating the penitential privilege isn’t likely to elicit any information that is now kept confidential: Priests are taught that they must be willing to face prison, torture, or death rather than break the seal of the confessional. In any case, priests frequently don’t know the identity of the person making a confession. “The overwhelming majority of sacramental confessions are anonymous,” the Diocese of Wilmington noted in its statement on the proposed Delaware law.

The First Amendment’s forceful language banning legislators from “prohibiting the free exercise” of religion doesn’t empower religions or their adherents to flout laws that are applicable to everyone. But as the Supreme Court has ruled time and again, any law that impinges on a particular religious belief or practice — even when its purpose is to advance a vital public goal — must be drawn as narrowly as possible. Preventing and punishing child abuse is unquestionably a compelling interest. But is it compelling enough to allow Vermont, Washington, and Delaware to uproot the longstanding legal protection of confessional secrecy? To clear the First Amendment’s hurdle, they would have to show why they cannot fight child abuse without trampling on a key religious belief when more than 40 states are able to do so.

Protecting children is a matter of crucial importance. Protecting religious faith is too. It isn’t the job of lawmakers to privilege one of those worthy aims over the other. It is to strive, with care and respect, to do both.

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