California and Confession. 1. A Catholic Victory—Which Did Not Solve All Problems

Bitter Winter - Center for Studies on New Religions [Torino, Italy]

December 12, 2022

By Massimo Introvigne

In 2019, Catholics managed to stop a draft law that would have opened a breach in the confessional privilege. But they left a problem unsolved.

Article 1 of 4.

The confessional privilege is the legal protection of the secret of the confession in the Catholic Church and of similar practices in other religious bodies. A Catholic priest should not reveal to anybody, including law enforcement officers or courts of law, what has been told to him in confession, under penalty of excommunication.

As Bitter Winter reported in a previous series, this privilege has been historically protected by both statutes and common law in most countries, and extended to confessional practices of other religions. In recent years, however, the sad tragedy of sexual abuse of children by Catholic priests has induced some jurisdictions, including Ireland, most states and territories of Australia, and some U.S. states, to pass laws introducing an exception to the confessional privilege.

These new laws mandate that, when they obtain information in confession about the sexual abuse of a minor, priests and other ministers should report them to the secular authorities. As we saw in our Bitter Winter series, both the Roman Catholic Church and the Eastern Orthodox Churches reacted by ordering their priests to “obey God rather than men,” as Peter and other apostles stated in the Bible in Acts 5:29. The priests were told that they should disobey the laws ordering them to violate the secret of confession, and would be defrocked and excommunicated if they comply with them.

My comment in the series was that the laws are against internationally recognized principles of religious liberty, and open a breach that may destroy the confessional privilege altogether. If the seal of confession should be broken in cases of sexual abuse of children, admittedly a heinous crime, what about terrorism, rape, drug dealing, serial homicides?

I also insisted on the wisdom of the comments by Jeremy Bentham (1748–1832), the English philosopher who was no friend of religion nor of the Catholic Church. He famously argued in the early 19th century that “the moment the constabulary were known to have harvested their very first confessional secret, the well of such secrets would dry up.” Criminals would not confess their sins to priests and ministers if they knew that what they confess would be reported to the police.

In this new series, I plan to focus on a specific battlefield, California, and on precedents in other U.S. states that can be relevant for the debate there.

The California Evidence Code protects the confessional privilege and includes a definition of the protected “penitential communication” in Section 1032 that reads as follow: “‘Penitential communication’ means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.”

In 2019, the confessional privilege was at the center of a dramatic battle around SB 360, a bill introduced by Democrat State Senator Jerry Hill. In its original form, the bill excluded from the confessional privilege any communication whose content was connected with the sexual abuse of a minor. It became immediately clear that such a bill would not gather a majority and pass.

Hill then amended it to exclude from the privilege only confessions where priests or other religious ministers receive confessions about sexual abuse of minors from other priests, ministers, or lay workers who are employees of their religious organizations. In the amended form, the bill passed the California Senate with a 30-2 vote on May 24, 2019.

The Catholic Church objected that it is not important whether the breach opened by the law is large or small. Even a small breach would compromise the principle. Bishop Robert Barron, who was then an auxiliary bishop in Los Angeles (and is now the bishop of Winona-Rochester in Minnesota), wrote that SB360 “should alarm not only every Catholic in the country, but indeed the adepts of any religion… What I hope is clear—not only to Catholics, but to any American committed to the First Amendment— is that we are dealing here with an egregious violation of the principle of religious liberty.”

Barron called it a “state’s aggression toward religion” and concluded that Catholics should “rise up in strenuous protest against this very aggressive incursion—but so should anyone who cares about the freedom of religion in our society.”

The Archbishop of Los Angeles, José H. Gomez, had a letter read in all Catholic parishes in his diocese where he stated that the proposed law denied “the sanctity of confession to every priest in the state and to thousands of Catholics who work with priests in parishes and other Church agencies and ministries. Even as amended, SB 360 remains an unacceptable violation of our religious freedoms.”

The Catholic #KeepTheSeal campaign led to 140,000 letters sent to senators and members of the State Assembly protesting the bill. Experts also raised Constitutional concerns, but the Catholic grassroots campaign was crucial in persuading legislators that by passing SB 360 they would alienate thousands of Catholic voters. One day before a scheduled July 9 hearing in the California Assembly Public Safety Committee, the bill was withdrawn.

Catholics had basically won the battle. But perhaps not the war. Legal experts in the United States (and elsewhere) have consistently indicated that statutes protecting the confessional privilege cannot be defended in the long run if they discriminate in favor of the Catholic Church (and the Eastern Orthodox Churches), protecting their model of confession but not other models.

The problem of California’s Section 1032 is that it protects as “penitential” communications “made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy.” The provision was obviously drafted having in mind the Catholic model of confession, where one penitent confesses to one priest. This, however, creates a discrimination with other models where “confessions” are made to more than one religious figure, or the minister who hears the confession shares its content with others in the same religious organization.

As we shall see in the series, courts in several U.S. states have applied the confessional privilege to cases concerning confessions in several Protestant denominations and in the Church of Jesus Christ of Latter-day Saints (LDS), rendered in presence of third persons, or even to ecclesiastic committees with more than a dozen members. In one of the LDS cases, notes of the confession were taken and confidentially transmitted to the church headquarters, where they were stored.

In the Church of Scientology, auditing is a confessional practice whose content is shared by the auditor, under strict conditions of confidentiality, with a Case Supervisor and other church ministers. The auditor also takes notes, and they are stored, also by guaranteeing that they remain confidential. As argued by Eric Lieberman in his brilliant chapter on Scientology of the book “Religious Confession and Evidential Privilege in the 21st Century”(Cleveland, Queensland: Shepherd Street Press, 2021), edited by Mark Hill and A. Keith Thompson, some of whose references I will use in this series, why these cases should be excluded from the protection of the confessional privilege is unclear.

This discrimination is difficult to justify, and it is a time bomb hidden in the California law that may one day explode. Catholics did win the 2019 battle, but left the time bomb ticking. We will see in the next articles of this series how precedents in other jurisdictions indicated how to solve this problem.