By MIKE MANNO
The Democrats in the state of California are preparing for a new attack against the Church. This time it is against the Sacrament of Reconciliation.
In response to the clergy sex-abuse crisis, State Sen. Jerry Hill has introduced SB360, a bill that would require priests to report suspected child abuse that was learned through the confessional. All clergy are mandatory reporters; however, the current law in California and in most other states protects the seal of the confessional. As a result, priests who gain knowledge of possible sex abuse through other means, such as acting as a school principal, would have the duty to report.
The bill introduced into the California legislature would require clergy to report suspected abuse — or neglect — even if that knowledge or suspicion was obtained in a sacramental Confession.
According to the sponsor: “Clergy are already mandated child abuse and neglect reporters in California, except if they learn of suspected abuse during a penitential communication. This bill would level the playing field by holding them to the same standard as every other mandated reporter.”
That exemption, for what is loosely referred to as the priest-penitent privilege, is “an exemption not granted to any of the other 45 mandated reporters,” the supporters say. “Additionally, recent investigations by 14 attorneys general, the federal government, and other countries have revealed that the clergy-penitent privilege has been abused on a large scale, resulting in the unreported and systemic abuse of thousands of children across multiple denominations and faiths.”
There were no facts given to show how priests used the penitent privilege to sexually harm children. The bill repeals five sections of the current state law referring to the priest-penitent privilege. Interestingly, it leaves an odd exception in the law: Firefighters are mandatory reports, except for volunteer fighters, who are not.
Priests who fail to “break the seal of the Confession” and report suspected abuse — by phone immediately followed by a written report within 36 hours — face six months in jail and fines of up to $1,000.
As you would guess, there is opposition building against SB360. One, the Pacific Justice Institute Center for Public Policy, has set out its opposition in a five-page letter to the bill’s chief sponsor, Sen. Hill. In it, Chief Counsel Kevin Snider quotes directly from canon law, and argues that SB360 violates the constitutional protection of freedom of religion.
“Historically, the disclosure of sins stands as a practice dating back two millennia. The confession of sins frees the individual and facilitates reconciliation with others. Through such an admission, man looks squarely at the sins he is guilty of, takes responsibility for them, and thereby opens himself again to God and to the communion of the Church in order to make a new future possible,” he wrote.
He noted that a private practice of confession is also found in the Orthodox Church, the Church of England, and the Church of Jesus Christ of Latter-day Saints. In addition the American Baptist Churches USA has produced a position paper that says, “The effective pastoral counseling of the ministry depends on the assurance of those who seek it that the information they reveal in confidence to their pastoral counselor may be given with full freedom.” And that the Presbyterian Church USA has reaffirmed the historic position of the denomination “that it is a spiritual and professional duty of clergy to hold in confidence matters revealed to them in their counseling, caring, and confessional ministries, and that being called to testify in a court of law does not negate this sacred obligation, the law of God being prior to the laws of human courts.”
Unfortunately, we’ve had this discussion here before since this is not the only state to try to pierce the veil of the confessional, all in the name of protecting children. Snider does a nice job of briefly discussing the legal history of protecting the confidence of penitents, going back to the earliest American court cases.
While proponents of the bill argue that the clergy protection is statutory and not constitutional, Snider points out that courts have held clergy penitent protection was well established in common law and had also found constitutional protection prior to the adoption of any clergy protection law in the United States.
“By long tradition and public policy, statements made by and between these parties [clergy and penitent] stand as outside of the reach of the judiciary. If the courts will not give ear to privileged statements, surely law enforcement possesses no greater right to access such communications,” he wrote.
“In removing the clergy-penitent privilege, the Bill mandates a betrayal of confidence in violation of a traditional religious duty held by clergy. In order to protect themselves, parishioners, and the penitent, preachers will say, ‘Don’t come to us with your family problems.’ In sum, the proposed Bill serves to drive a wedge of distrust between the faithful and their ministers,” Snider added.
On the other side, the president of the Friendly Faith Project in San Diego claimed: “For too long, religious authorities have been protected from reporting these cases, leaving children vulnerable and unsafe.” And the Survivors Network of those Abused by Priests, in supporting SB360 said: “In the past, clerical exemptions to mandatory reporting laws have allowed clergy not to report when they heard allegations of child abuse during Confession or witnessed a child being abused by another cleric or church staffer.”
Of course, the latter point is incorrect. A priest or other clergyman, who actually witnesses an act of child abuse, can still report it without violating the privilege. It would be like an attorney who is barred from revealing client information, but would be perfectly within his rights to report a crime he witnessed.
One of the problems in this area of the law is that in the case of most privileges against disclosure, the privilege is held by the protected party. Thus the client in the attorney-client situation holds the privilege and if the client waives the privilege, the attorney can be forced to testify. The same is true in the case of a physician and patient; the patient can waive the privilege. The problem for the Church is that even if the penitent waives the privilege, canon law still prohibits the disclosure of any information the priest might have gained during the Confession; in fact, the priest is prohibited from even acknowledging that the Confession took place.
That was the problem in Louisiana a few years ago. To make a long story short, the case was about a young girl who was abused by a parishioner and her parents were suing the man and the church, since the girl claimed she told the priest in Confession about the abuse. The lawsuit claimed that the priest should have alerted the authorities. The matter came to a head when the parents wanted the girl to testify about the Confession.
The diocese filed a motion to prevent the girl’s testimony about the Confession since the priest would be unable to comment on it. The trial court dismissed the motion but that was reversed by the court of appeals on the grounds that the priest was not in this instance a mandatory reporter and thus the girl had no claim against him for failure to report. The Louisiana Supreme Court reversed the appeals court on the grounds that the girl held the privilege and had the right to waive it whether or not the priest objected.
The Supreme Court later remanded the case back to the trial court to determine if there were other instances outside of the Confession where the priest might have been a witness and may testify without jeopardizing the priest-penitent privilege. And there, at least for now, is where it ended, although it leaves a hole in the blanket of protection.
Just as a warning, there is a serious trend with some attorneys and lawmakers to weaken the privilege in order to require a priest to violate the seal of the Confession or face jail. Individual states are carving out possible exceptions to the privilege and we need to be vigilant to prevent a wholesale attack on the confessional.
And you can be sure the attacks will be wrapped around the flag of child protection in light of the current scandalous condition in the Church.
You can contact Mike at: DeaconMike@q.com.
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