Recently Australia’s territorial assembly in Canberra passed a measure tightening Canberra’s child abuse reporting law to include Catholic priests, making it illegal for priests to fail to report abuse they learn about in the confessional. The provision will take effect on March 31 next year.
As I watch attacks on religious liberty, one thing I have noticed is that just because there is an attack overseas doesn’t mean we are immune from it. Those chipping away at our rights are active all over the globe and ideas that start elsewhere will soon find their way to our shores, and the reverse is also true: A lot of our bad ideas migrate elsewhere.
And, in case you are not aware of it, the seeds for a legal piercing of the seal have already been sown here in the context of mandatory reporting of child abuse. It is common knowledge that a priest hearing a Confession is bound by that seal and may not, for any reason, divulge what he has heard and, in fact, may not even identify someone as a penitent whose Confession he has heard. The canonical penalty is automatic excommunication.
The United States has long recognized and protected the seal. The first legal case to do so was the 1813 New York case of People v. Phillips. In that case a thief had confessed and returned the stolen goods to the priest, who in turn, returned the goods to the rightful owner. In an action to compel the priest to identify the thief the court ruled that to do so would infringe upon the priest’s right to freely practice his religion.
A few years later the uniqueness of the Catholic Sacrament of Reconciliation was legally acknowledged in the 1817 case of People v. Smith. There the “penitent” who had spoken to a Protestant minister was not protected since the “confession” was not required by the man’s denomination and thus was viewed only as counseling for spiritual guidance.
The view that took root was that communications for advice or counseling were not protected unless the communication was mandated by a particular religion as part of its practice and dogma.
Later, in 1828 the New York legislature made the protection of the confessional statutory: “No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules of practice of such denomination.”
Since that time all 50 states and the District of Columbia have some version of a priest penitent privilege, and for most of our history there has been little major litigation over the seal.
However, the Supreme Court has, in dicta (a nonbinding statement or comment made by a court), addressed the issue. In 1875 in Trotten v. United States, the court noted that “suits cannot be maintained which would require a disclosure of the confidences of the confessional.” In United States v. Nixon the issue was the confidentially of discussions between the president and members of his staff and while the court found that there was no privilege there, it compared that claim to the priest-penitent privilege, stating that in the priest case a court must recognize a privilege against disclosure.
Later, in 1980 the Supreme Court in Trammel v. United States said that the reason for maintaining the privilege of the confessional “recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”
Now there are two major problems with the legal view of the seal. First, since it is a privilege against disclosure, to whom does the privilege belong? And second, how does this privilege stand up against mandatory reporting laws?
To answer the first question, privileges under the law belong to the person who made the communication. Thus in the attorney-client situation, the client can waive the privilege and the attorney will then be required to disclose the protected information. Under canon law, however, the seal is inviolable and may not be revealed even if the penitent waives confidentially. Obviously, that can set up an uncomfortable situation for the priest (I’ll discuss that a bit later), except in the few states that recognize the priest as the holder of the privilege.
The second question goes to the needs of the state in protecting children: Can a priest be compelled to disclose for the greater good of protecting children? Does the state have a “compelling interest” to secure the protection of children by compelling the disclosure?
Much of the activity concerning how the privilege relates to child abuse was engendered by the 2003 report by The Boston Globe about the alleged child sexual abuse in the Boston Archdiocese. The Globe’s report contained stories of 900 children who had been abused by churchmen. The result was that in 2003 Massachusetts overhauled its mandatory reporting laws to include clergy and 12 states followed suit.
Like the priest-penitent privilege, all 50 states and the District of Columbia had some type of mandatory reporting law. As a result of the Boston scandal, and several other high-profile cases, a few states maintain the privilege only conditionally, and six states have abrogated the priest-penitent privilege completely.
This issue was litigated in Louisiana in the case of Mayeux v. Charlet, where the parents of a minor sued their daughter’s alleged abuser, the priest she claims she “confessed” to, and the Diocese of Baton Rouge. The suit alleged that the priest was aware of the abuse and failed to report it. The teenaged girl wanted to testify that the priest told her to “sweep the incident under the rug” so as not to create a scandal since the accused abuser was a parishioner.
The diocese filed a motion to preclude any testimony about the Confession since any testimony by the girl against the priest would serve as an accusation to which he could not respond. The plaintiff replied that while the girl was in the confessional when she told the priest, it was not a real Confession since being the innocent victim of abuse is not a sin, thus the priest must testify.
The diocese lost at the trial court but the appeals court reversed and the matter went to the State Supreme Court which held that since a cleric was a mandatory reporter and under the state law “any mandatory reporter who has cause to believe that a child’s physical or mental health or welfare is endangered as a result of abuse or neglect…shall report in accordance with Article 610.” The court also noted that the child, through her parents, did waive the privilege.
However, what saved the privilege — at least for the time being — was the court, in vacating the appellate opinion, remanded the case to the trial court for “further proceedings consistent with this opinion.”
The district court, last September, held that the jury cannot consider what the girl, now an adult, told the priest. The judge ruled that the determination of whether or not a Confession occurred was determined by canon law which is outside the jurisdiction of civil courts. However, if comments were made to the priest outside of the confessional, they would be subject to the reporting law.
Where does this go from here? We don’t know, but we do know what the Australians are doing. So rest assured that in this politically correct climate the issue will surely arise and the Church will be attacked here, all in the name of protection of children.
Be prepared, it is only a matter of time before that assault will be launched and priests forced to do a perp walk for refusing to comply.
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