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

By Ellen K. Boegel
America Magazine
July 1, 2019

https://bit.ly/2FK3m5U

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. Photo by 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.”

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.

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.

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.”