Washington Examiner [Washington D.C.]
March 2, 2023
By Jeremiah Poff
Two states are currently considering legislation that amends mandatory reporter laws to force Catholic priests and other religious clergy to divulge information about sexual abuse, even when the priest learned of the abuse while hearing a confession.
Bills currently under consideration in the Washington and Vermont legislatures would make all clergy in the state mandatory reporters of sexual abuse and would remove so-called clergy-penitent privilege, which otherwise exempts religious ministers from reporting anything that is heard in confession.
The legislation, if passed, would most notably affect Catholic priests, who are prohibited from divulging anything they hear in confession. Catholic canon law stipulates that any priest who violates the “seal of confession” automatically incurs the penalty of excommunication.
Bishop Thomas Daly of the Diocese of Spokane, Washington, told the Washington Examiner in an interview that if the bill were enacted, priests and bishops in the state would rather go to jail than comply.
“Priests and bishops will go to jail rather than break the seal of confession,” Daly said. “I’m confident that the priests in [the Diocese of Spokane] and my brother bishops would do that, so sacred is that bond.”
For Catholic priests, the seal of confession is nonnegotiable, Daly explained, noting that most secular institutions have tended to recognize the importance of the confessional seal and respected it.
“I am troubled if someone seems to think that this is negotiable,” he said. “I worry that that bond of trust that people have given their life for would suddenly seem to be up for renegotiation.”
The bishop of Spokane also wondered what kind of motivation could be behind the bill and noted that secular forces in the state were criticizing the Catholic Church’s involvement in social and healthcare services.
“Priests are already mandated reporters in all matters but the sacrament of penance,” he said. “Why has this become an issue?”
The provisions of the Washington House bill alarmed First Amendment lawyer and Ethics and Public Policy Center fellow Eric Kniffin, who urged the Washington House to amend HB 1098 to include protections for clergy-penitent privilege in a Feb. 24 letter that noted removing the privilege would likely lead to legal challenges. The bill is currently in its second iteration; the original measure protected clergy-penitent privilege, while the second does not.
“By explicitly overruling the clergy penitent privilege, while leaving the attorney client privilege untouched, Washington State would go where no state has gone before, setting the state up for a civil rights lawsuit I am confident it would lose,” Kniffin wrote. “While I applaud the legislature’s desire to protect children and strengthen the State’s mandatory reporter law, this is not the best way to advance the State’s interests in protecting children and bringing sexual predators to justice.”
A similar bill that unanimously passed the Washington Senate on Tuesday did include protections for clergy-penitent privilege.
But the bill’s sponsor, state Sen. Noel Frame, a Democrat, said the issue will be a topic of debate in the state House of Representatives.
“We’re going to have some tough conversations about the issue of clergy-penitent privilege here in the legislature and find what’s possible for us to pass,” Frame said. “This bill is already a major step forward for protecting children, and my priority is to pass it into law this year in the strongest form we can.”
In an interview with the Washington Examiner, Kniffin said the efforts in Vermont and Washington follow a failed attempt by California in 2019 to enact a similar law requiring priests to violate the confessional seal for abuse cases.
“There’s a huge variety [of opinion] within the church, but if you want to talk about something that’s going to unify people, [it’s] that confession is off limits, that’s something that everyone understands,” Kniffin said. “There are priests who have died rather than violate the seal of the confessional. You’re not going to succeed in getting priests to turn state’s evidence on what they hear in the confessional.”
Kniffin noted that while the Catholic Church’s well-documented history of covering up clerical child sex abuse may offer the motivation for requiring priests to break the seal of confession, no investigative body has ever pointed to removing the legal protections for clergy-penitent privilege as a viable policy to address the problem.
“It’s also really important to note that there have been at least 12 grand jury or attorney general reports, hundreds and hundreds and hundreds of pages documenting so many cases, and not one of them points to the confession as a contributing factor, not one of them has recommended getting rid of this privilege,” Kniffin said. “My sense is there’s a disproportional thing that sort of says, ‘There’s been abuse in the Catholic Church, we want to protect kids, and if we close this privilege, they would be safer.’ But they’re not thinking about what that would do to Catholics.”