The seal of confession and mandatory reporting: a survey of state laws

St. John Nepomucene Catholic Church is seen on a New York City street in this May 2, 2019, photo. The church was named for the 14th-century Bohemian saint, considered the first martyr of the seal of confession. (CNS photo/Chaz Muth)

The Catholic Church is campaigning against California’s proposed changes to its mandatory child abuse reporting law that could compromise the ancient Catholic defense of the “seal of the confessional.” Currently, clergy members are mandated reporters of child abuse and neglect, but need not report abuse if their reasonable suspicions are based on “penitential communications.” Several bills have been proposed that would eliminate or limit this reporting exception.

The version of SB 360 passed by the California Senate and scheduled for a July 9 hearing before the Assembly’s Public Safety committee narrows the definition of penitential communications to those similar to the Sacrament of Reconciliation, in that they must be “made in the manner and context that places the clergy member specifically and strictly under a level of confidentiality that is considered inviolate by church doctrine.” The bill, if enacted, would also require reporting of child abuse revealed through “penitential communications between a clergy member and another person that is employed at the same site or facility as the clergy member” and “between a clergy member and another clergy member.”

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This change is significant, but SB 360 does not apply to most confessions and, as currently written, would not change California’s Evidence Code, which retains the priest-penitent privilege and grants everyone the right “to prevent another from disclosing a penitential communication.” The laws of other states are more severe and less religiously accommodating, although practical considerations have limited their impact on religious adherents.

The Catholic Church is currently campaigning against California’s proposed changes to its mandatory child abuse reporting law.

A close look at New Hampshire law demonstrates the complexities of applying evidentiary rules—which apply to courtroom or administrative hearing testimony—and mandated reporting laws that are universally applicable to real world situations. New Hampshire’s court procedure law uses an expansive definition of religious privilege that, on its face, protects the secrecy of all confidential communications made to spiritual advisors.

Nevertheless, the state’s Child Protection Act mandates that any person, including a “priest, minister, or rabbi” must report suspected child abuse and neglect to the appropriate government agency. The only exception to universal reporting is the attorney-client privilege. All other “professional” privileges, including the priest-penitent privilege, are not honored when it comes to the state’s mandatory child abuse reporting requirements.

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In 1997, a bill to delete “priests, ministers, and rabbis from the mandated reporting provisions” and provide protection “for privileged communications between such clergy and individuals confiding in them in their professional capacity” never made it out of committee and was not passed by the legislature. Thus, in New Hampshire, one law prohibits a priest from testifying against a penitent in court, but another requires a priest who learns of child abuse in the confessional to report details of that abuse, including the name of the alleged abuser, to the state’s Department of Health and Human Services. A priest’s obligations under the New Hampshire law appears clear, but its application has been inconsistent.

 

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In 2002, after numerous Catholic priests were accused of raping and abusing children and church officials were accused of covering up these crimes, the Catholic Diocese of Manchester signed a non-prosecution agreement with the New Hampshire Attorney General. Although the agreement requires all priests, ministers, employees and volunteers to “comply with the [state’s] mandatory reporting obligations, the state did not object to a diocesan reporting policy that confirms the inviolability of the confessional.

The disparity between the statutory provisions and the Attorney General’s acquiescence to the church’s priest-penitent exception is not explained. The legislature has not directly approved or disapproved this interpretation, but, in 2006, it failed to act on a bill that would have amended the state’s court procedure law to clarify “that religious leaders are not exempt from child abuse reporting requirements.”

The New Hampshire Supreme Court has spoken, however. In State v. Willis (2013), a prosecution involving incriminating statements made to a Baptist minister, the court did not recognize a special protection for confessional communications.

North Carolina, Oklahoma, Rhode Island, Texas and West Virginia all deny religious exemptions from their child abuse reporting laws.

“Whether a communication is a ‘confidence’ within the meaning of the religious privilege depends upon the objectively reasonable expectations of the communicant, under the totality of the circumstances,” the court held. “Because our law provides that any statement to a clergyperson that might be helpful in establishing child abuse is not protected by the privilege, a communicant cannot have an objectively reasonable expectation that such a statement will remain confidential.” The minister in the Willis case voluntarily reported the abuse to police, so the court did not indicate what penalty, if any, would apply to a member of the clergy who kept a confession of child rape or abuse secret.

New Hampshire’s statute makes it a misdemeanor to “knowingly” violate the reporting law, but the circumstances when a failure to report abuse disclosed in the confessional would become known to law enforcement authorities are limited.

North Carolina, Oklahoma, Rhode Island, Texas and West Virginia all deny religious exemptions from their child abuse reporting laws. North Carolina’s mandatory reporting law applies to everyone in the state and unequivocally requires disclosure of traditionally privileged communications, with a narrow attorney-client exception. West Virginia’s law is similar.

Several states have laws that are silent on the applicability of the priest-penitent privilege to child abuse reporting laws.

Rhode Island and Tennessee specifically preclude relying on any privilege other than attorney-client confidentiality to justify a failure to report or refusal to testify in child abuse proceedings. Oklahoma and Texas have eliminated even the attorney-client privilege from their mandated reporting and Texas has eliminated all but the attorney-client privilege from child abuse prosecutions. There are no reported judicial decisions in any of these states relating to a clergy person who has refused to testify against a penitent, but in Tennessee and Texas, ministers have been permitted to voluntarily give evidence against congregants who made confidential disclosures of child abuse.

Indiana’s “clergymen” privilege law is prefaced with qualifying language, “[e]xcept as otherwise provided by statute,” which, on its face, makes it subservient to the state’s universally applicable child abuse reporting law.

Several states have laws that are silent on the applicability of the priest-penitent privilege to child abuse reporting laws. Connecticut’s list of mandated reporters law includes “any member of the clergy,” but it does not mention whether that law supersedes its broad priest-penitent evidentiary privilege.

According to a 1994 legislative analysis, “There may or may not be a conflict between the confidentiality and reporting statutes, depending on [whether the evidentiary privilege applies to the reporting requirement]. There is, however, a conflict between the reporting requirement and the general philosophical concept of confidentiality for statements made to clergymen.”

Mississippi’s laws are similarly ambiguous, but in a 2005 clergy sex abuse case (later settled for 5.1 million dollars), the Mississippi Supreme Court upheld a claim of priest-penitent privilege brought against disclosure of “letters seeking spiritual guidance or intercessory prayer.”

Although the thought of breaking the seal of the confessional is abhorrent to Catholics, it may be constitutional under the controlling Supreme Court case, Employment Division v. Smith.

The court did not rule on whether church officials violated the state’s mandatory reporting law. The Nebraska rules of evidence prevent disclosure of confidential communications made to a clergy person in a professional capacity “at all stages of all actions, cases, and proceedings.” The state’s child abuse reporting law applies to everyone in the state and does not mention exemptions for religious confidences.

Although the thought of breaking the seal of the confessional is abhorrent to Catholics (and grounds for excommunication in Catholic canon law), it may be constitutional under the controlling Supreme Court case, Employment Division v. Smith (1990). As Justice Antonin Scalia’s majority opinion states, “The right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”

The only exceptions are when a religious right is supported by an additional constitutional protection, such as freedom of speech or of the press. Opponents of mandatory reporting requirements that infringe on the penitential privilege could argue that the laws are similar to the forced speech declared unconstitutional in National Institute of Family and Life Advocates v. Becerra (2018), which applied a narrowly tailored/compelling interest test to strike down California’s mandatory notice requirements for licensed crisis pregnancy centers.

Mandatory reporting laws that exclude priest-penitent confidences face an additional hurdle in states that have enacted Religious Freedom Restoration Acts. The laws require courts to prohibit government action that substantially burdens religion unless it is the least restrictive means to achieve a compelling state interest. Preventing child abuse and prosecuting abusers clearly is a compelling governmental interest, but at least one court has ruled that, under the specifics of the case, compelling a priest to reveal a penitent’s confession, even when requested by the penitent herself, was not the least restrictive means to achieve that end.

The desire of state legislatures to mandate clergy reporting and deny priest-penitent exclusions is the result of a long history of “clerical privilege” that failed to protect children from rape and sexual abuse. Nor is California the only state currently strengthening reporting laws.

As difficult as it may be to accept limitations on the priest-penitent privilege, perhaps the words of Scripture can be a reminder of how the Catholic Church finds itself in this current legal environment: “God is not mocked, for a person will reap only what he sows.”

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Crystal Watson
2 months 3 weeks ago

The church should mandate that all priests tell of any sex abuse they are aware of, including from confession. Until that happens, it is up to the civil government to do all they can to force them to, to protect children. There's nothing in the gospels about keeping confession secrets, but there is a bit about hurting children.

James M.
2 months 3 weeks ago

IMNSHO, the inviolability of the seal of the confessional needs to be abolished, or, at the very least, greatly qualified. The practice has a long history - but so too did doctrines and practices that the CC has trashed. As they were changed, it is not clear why this cannot be changed.

The inviolability of the seal is not a dogma, because it is not derived from Divine Revelation. It is not an article of faith. It is not of Apostolic origin, nor is it from their times. It was not instituted by Christ. It was instituted by the Church, like many other things, such as: sacramentals, ranks of the clergy, the religious vocation, the use of Confessional boxes, the division of the Church into dioceses and eparchies, and many other such things. All of these were instituted by the Church, and none of them is essential to the existence or mission of the Church. And what the Church has instituted, the Church can (for sufficient reasons) change or abolish.

The Church no longer has archdeacons, it no longer mentions Limbo in its catechisms, it has (at least in practice) almost entirely abolished the censorship of books, it no longer defends the lawfulness of the death penalty, it no longer defends slavery, it now allows girl altar-servers at Mass, it no longer identifies the CC with the Church of Christ, it has ceased to seek the conversion of the Jews to Christianity, it no longer teaches that Scripture is totally inerrant, it no longer believes that there is no salvation outside the Church.

All of these have been dropped - so why should any reasonable person think that, after so many changes of doctrines and practices formerly deemed very important, that Catholics could formerly be punished for rejecting, that the Church-instituted practice of the absolute inviolability of the seal of the sacrament of Confession is, for some unexplained reason, totally and utterly and forever unchangeable ? Why is this set in untouchable stone, when so much else that was formerly treated as unchangeable, proved not to be ? It is entirely the fault of the CC, that it treated these things as untouchable and beyond question - then turned round 180 degrees, explained them away, and ditched them. All the while, of course, pretending that no change of any importance had happened. The CC is a very dishonest set-up - if it can fend off loss of face by telling convenient lies, that is what it will prefer to do. Appearance matters to it far more than reality. That people suffer from its shameless mendacity and lack of conscience, has been of precisely zero important. It is impossible to believe that such a Church can believe in God, let alone be in any way uniquely valid as a Christian body.

The seal should be abolished because the present discipline has the (unintentional) effect of allowing criminals with no fear of the Wrath of God to hide atrocious crimes against the most defenceless members of the Church from the punishment justly due to these atrocious and damnable actions. The result is, to pervert the confessional from being a means of God’s Mercy and Grace to repentant sinners, into a shield for wicked and unrepentant men both to add to their sins, and to make God’s Mercy into a means of escaping legal punishment for their crimes. That is a profanation of the sacrament, and thus a further sin. The present discipline is therefore an occasion of sin, and a means to the damnation of souls, when it is meant to be a God-given means of their conversion, repentance, amendment of life, and sanctification. Such a situation is in no sense healthy, either for them, or for the priests hearing their confessions, or for the Church as a whole. The present discipline, however healthy and appropriate it may once have been, threatens to corrupt the Church.

Bruce Gillette
2 months 2 weeks ago

The Church in all of its communions (Catholic, Protestant, Orthodox, Pentecostal, etc.) has failed to protect victims. The corruption has hurt our shared witness. The Great Commandments need to be followed more than traditions when these practices fail the Church's ability to further the love of God and neighbor. More time spent with victims will hopefully inspire less cover-ups, support more mercy and true prevention than time misspent lobbying for exemptions from doing right. All clergy, including bishops, need to truly be held to really accountable for their misuse of power. The Church has failed to so too many times. Stopping and preventing abuse is far more important than an old tradition that has supported corruption far too much. We profess to follow one who took the form of a slave-servant and his example of humility should lead us to know we fall short in our judgements. More heads are better than one. This includes telling law enforcement officials, for they need to be part of the solution and no kept at arms length.

Oz Jewel
2 months 2 weeks ago

What is this nonsense of prevention?
How do you imagine we can STOP abuse?

Our Messiah declined temporal power, left human free will free and only once is reported as having actually moved physically against specific people, the racketeers who were money changers in the Temple exploiting the ritual laws for illegitimate gain. One short episode on one day to illustrate the divine outrage at such blasphemy.

The best that can be offered is support for the small percentage of victims who are permanently harmed by being abused, timely reporting to law-enforcement of all known offences and withdrawing all opportunity for re-offending and clarifying the truth that the sins of a few are not appropriately visited on the many who do no such things.
And STOP calling clergy FATHER, scripture forbids it and it deceives the young and naive.

John Chuchman
2 months 2 weeks ago

Oh, by the way, Sacramental Confession has been dying for years, is nearly dead.

Isabel Sinton
2 months 2 weeks ago

There is a solution. Episcopal priests hear confessions and when the 'penitent' starts to talk about child molestation, they are instructed to say that the ' Sacrament/ Confession' is over and it is now a conversation. Catholics priests can do this and NOT give absolution, but the RCC is probably still mad about that Henry VIII thing when the Anglican/ Episcopal church started, and won't do anything them there PRODS do even if it works. Protecting children is more important than protecting pedophiles hiding behind an imaginary seal. Please check my facts.

Tom Beckwith
2 months 2 weeks ago

While it may be true (though I doubt it) in a particular Episcopal Diocese what Isabel Sinton claims—if the diocesan Ordinary has given such a Godly Admonition to his clergy—it is not, however, true that the General Convention of the Episcopal Church has *ever* given that sort of direction to the clergy of the Episcopal Church. It is most certainly not enshrined in the Canon Law of the Episcopal Church. For those Catholic Anglican Priests who hear auricular Confession, the Sacrament is absolutely inviolate. I also know that any Anglo-Catholic priest I know personally would *never* grant absolution to a penitent who confessed to such a mortal sin without the proviso that he present himself to the secular authorities and confess and acknowledge his transgressions against the secular law and accept secular punishment.

Ms. Sinton does not know whereof she speaks, and I do not know where she acquired this eccentric notion.

John Chuchman
2 months 2 weeks ago

Who goes to confession any more any way?!

Kyle Rosser
2 months 2 weeks ago

Those who truly believe in God’s justice and mercy. The trend of referring to God as a nice guy who just wants everyone to get along is not proper. We have seen His justice through the stories of the Bible. His justice is above anything that we can understand, but so is His mercy. God reaches out to us as an invitation to recognize our mistakes, confess them to His vicars on earth, and return to communion with Him. People who believe that are the ones who still go to confession.

James O'Connell
2 months 2 weeks ago

It sounds like the anonymity of the screened confessional -- rather than the face-to-face form -- will be making a comeback.

And even if the face-to-face form is used, since when does the penitent ever identify themselves by name? "Forgive me Father, for my name is John Smith and it's been two years since my last confession…" isn't part of the form.

This reporting mandate is a non-issue due to the nature of anonymity In The Box.

Tim Donovan
2 months 1 week ago

A priest who was my senior year theology teacher raped a minor male after getting him intoxicated. Fortunately, he was discovered, prosecuted, convicted and imprisoned. I share the outrage of all decent people whenever a person is raped, regardless of his or her age, gender, or the identity of the rapist (teacher, plumber, doctor, accountant, lawyer, coach, electrician, garbage collector or businessman). It is especially disturbing when a priest or other member of the clergy is a rapist. Undoubtedly, the laws of each nation regarding rape vary in terms of the definition of rape and applicable penalties. In my view, the Church should report all priests, bishops or cardinals suspected of rape to the authorities. If found guilty of the crime, the clergyman should be sentenced to a lengthy prison sentence. Such clergy who are guilty of such a horrible crime and mortal sin should be laicized. I understand the good intentions behind California's SB 360. However, I oppose it, because it would violate the seal of confession. Although the great majority of Catholics only infrequently (if at all) go to confession, I am fortunate that my pastor or his associate visit me each month in the nursing home where I live for the Sacrament of Reconciliation. I then feel a great sense of consolation and relief having been forgivenen. Some of my sins are in my judgement are serious, so this explains why I go to the Sacrament each month. I frankly would be humiliated if I feared that a priest would publicly disclose my sins. I also feel that few, if any, rapists would go to the Sacrament of Reconciliation and confess to rape if they knew that the priest they went to was legally bound to notify the police of their crime/sin.

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