VATICAN CITY (VATICAN CITY)
Verdict - Legal Analysis and Commentary from Justia [Mountain View CA]
July 14, 2026
By Marci A. Hamilton
Dear Pope Leo:
Congratulations on receiving the Liberty Medal from the National Constitution Center on the eve of the United States’ 250th anniversary of the signing of the Declaration of Independence. I was inspired by these words in your speech: “As every American knows . . . the path to building a society that would embody those high ideals of liberty and justice for all was not always easy and, in many respects, is still a work in progress. Indeed, the effort to realize this vision is one that must be taken up anew in each generation and in the face of ever new challenges.” While you speak next about safeguarding the gift of life from conception to natural death, I would like to turn your attention to the children of the United States. We have not yet established full “liberty and justice” for the victims of child sex abuse in this country. It is indeed a challenge that “must be taken up anew in each generation” by the government and our social participants, like the Church. There is much work to do, and I respectfully bring one particular issue to your attention: mandated reporting for the clergy, even when the knowledge is learned in the confessional.
As an American prelate first, I know that you understand the depth and width of the clergy sex abuse in the Church here. The recent conversation between the Pontifical Commission for the Protection of Minors and the organization, Ending Clergy Abuse, which occurred with your blessing, gives me hope that you are seeking a better path forward for the Church and even the world for the protection of children. True liberty and justice will only occur for children when we take stronger measures for the prevention of sex abuse.
Brave lawmakers in Vermont and Missouri introduced bills this year to eliminate the priest-penitent, or confessional, privilege in child sex abuse cases. The bills didn’t advance, but they signify a new era in which states are searching for better ways to prevent child sex abuse through improved mandated reporting. Your bishops and others argue that they shouldn’t have to report known child sex abuse discovered during priest-penitent communications, because it violates their religious liberty, invoking the First Amendment.
Now, I know this is a difficult issue for the Church. As Kurt Martens from the Catholic University of America, recently told The Economist, it’s an unsolvable problem. According to him, “Practically, you have all these priests who will have to make a choice between violating canon law and violating civil law,” because violating the confessional leads to excommunication. Following a survey of what the states are doing on the issue in the article, he concludes: “The church always wins.” I know I don’t have to tell you that the church is not winning when it is responsible for covering up child sex abuse, regardless of the source of the information.
Bear with me, because a clear-eyed analysis of the issues should lay the path toward greater transparency, which means better child sex abuse prevention, which would be good for the public and for the Church.
The First Amendment Is Not a Refuge for Criminal Behavior
I do understand that you are being advised by American lawyers, but I would like to suggest that the Church should be better than much of the advice it has been getting and following. Their win-at-all-cost approach to litigation and lobbying is keeping children unsafe and victims unheard. It’s also doing nothing for the Church’s reputation.
For those who are blindly arguing that the confessional is automatically protected under the First Amendment, I say not so fast. The only absolute right under the Constitution is the right to believe; there is no absolute right to act when it harms others. If the state neutrally regulates child sex abuse reporting for all professionals (or in some states, all persons) with a generally applicable law, the constitutional argument against reporting is not good. That law should pass under rationality review at the Supreme Court. Even if the Court were to apply strict scrutiny, the arguments for such a requirement are rock solid.
First, it cannot be debated anymore that child sex abuse occurs in religious settings. It does, including the Church. As the Church has been fond of saying over the years, it’s not the only place this happens. The lobbyists for the Church routinely argue it happens in public schools, and other settings. Fair enough, but the thousands of Catholic clergy sex abuse victims that have come forward over the last thirty years cannot be ignored; it has happened frequently across Catholic dioceses here and elsewhere. Bishopaccountability.org’s mission has been to track these facts for posterity, which means that everyone’s blinders should be off: when it comes to child sex abuse, the Church has unclean hands. It actually takes a lot of nerve for the Church to invoke the First Amendment to protect secrets about child sex abuse. The weight of the public interest here easily outweighs the claim to religious liberty.
Second, nor can it be debated that the bishops knew. The cover-up was an orchestrated system as the brave and prescient Thomas Doyle and others pointed out in the 1980s and then one grand jury and Attorney General report after another has documented. It is a simple and straightforward fact that the Church has had knowledge of clergy sex abuse that it has withheld from the authorities and the public for a very long time. The Secret Archives that are being discovered in case after case prove it. If knowledge counts, as it should, the bishops were some of the most educated people in the United States—nay, the world—about pedophiles, grooming, and child suffering. This is an area of special expertise, one might say, and that knowledge should be turned toward saving children, not destroying them. Your compatriots knew so much and did so little for too long, and now your bishops are defending their right to keep secret their current knowledge. The same is true across many denominations. It would be irrational for states to not require clergy to report child sex abuse, wouldn’t it?
Third, many child predators have more than one victim, so reporting prevents future harm to children—even if the priest, volunteer, or relative is in his 80s. Once the identity of the perpetrator is released, parents, the authorities, and the public can take the actions needed. Without the report, canny perpetrators operate at will, magnifying the harm even after the knowledge has been given to the Church. Now, it is true that the American Church has required dioceses to report clergy sex abuse to the authorities “when the law requires,” but the opposition to rolling back the confessional privilege when it comes to child sex abuse tells us that there is a large asterisk next to that reporting requirement, which creates continuing opportunities for abusers.
Fourth, we are talking about reporting a crime, not a personal private matter. The arguments about the confessional often rest on the fear of the camel’s nose under the tent, but rational people can separate child sex abuse from other matters. The harm is extreme and the cost to society is unacceptably high. For all four of these reasons, there is a compelling interest behind requiring an exception to the confessional privilege for child sex abuse. Moreover, the exception just for child sex abuse is narrowly tailored to the compelling interest. The First Amendment was never intended to be a safe place for criminal behavior, let alone the rapes of children.
Fifth, the discussion so far has elided who owns the privilege. It does not actually belong to the religious organization, but rather the confessor. It can always be waived. What that means is that the public policy is not in favor of letting the religious organization keep its secrets at all costs but rather protecting the confessor’s privacy. When the issue is child sex abuse, that privacy is properly overridden by the known value of identifying child predators and saving children from future abuse.
The current Supreme Court majority often looks to history and tradition to define constitutional law. The Founding generation, if you look at the state constitutions preceding the U.S. Constitution, made public safety a routine exception to free exercise clauses. The culture also widely rejected that “licentiousness” would be included in free exercise guarantees. Thus, while a 30,000-foot view of the confessional mandate and a romantic view of religious liberty might seem to make it law-proof, the history and tradition of the United States does not support immunizing it from mandated reporting in all child sex abuse cases.
The Known History of Clergy Sex Abuse Not Only Destroys Children, but Also Undermines the Church
While I will, of course, leave it to you to determine the theology here, it is necessary to point out that confessional secrets about child sex abuse poison the Church systemically. So long as bishops kept these secrets to themselves, they simply put off the inevitable reckoning, and the longer you and your brethren know about abuse and do nothing, the worse off you are. The Church will never win when it is harboring secrets about perpetrators and systems that encourage them. At this stage in history, that is true whether you are keeping the secrets or appearing to do so.
Here is a hypothetical for you: A child tells their parish priest they are “having sex” with a Catholic school teacher. Due to the seal of the confessional, the priest tells nobody and the sexual abuse goes on for several years. At some point, the child is able to tell their parents about the abuse and how they told your parish priest years ago. Is the sanctity of the confessional going to comfort them or heal the child? It certainly won’t erase the trauma inflicted. Had the priest reported to the authorities immediately after the confession, the child would have been protected, the Catholic teacher would have been prosecuted, and the Church would have dramatically reduced its blame for the abuse. Without the report, the parents must live in despair at the long suffering of their child, despair caused by the failure to report. That leads to anger and a loss of faith, which you can prevent by instituting transparency.
Here’s another hypothetical: What if the child told the priest—solely in the confessional—that their father was sexually assaulting them every night? Is it possible that the Church’s rule must be that the priest tells nobody and lets that child go home to yet another rape? Forgive me for asking, but how many children are in these circumstances right now and your fellow priests know? It appears that your lawyers and lobbyists are just fine letting that situation persist. Surely, you cannot in your heart of hearts believe that is the better way.
Now, I suppose you might say you could protect the confessional and the child if the priest would just tell the child to report. Unfortunately, that is not as helpful as you might want it to be. The shame, humiliation, and trauma of child sex abuse typically keep the victims silent for decades. The fact they opened up in the confessional as a child would be extraordinary. Besides, putting the onus on a child victim to report to the authorities when an adult in their trusted universe knows is unfair and irrational. Many priest abusers have told their victims it was their fault; this would be a corollary version of saying, “It’s your fault,” to the victim while shielding the Church from its rightful responsibilities. If the confessor is the perpetrator, telling them to turn themselves in is also not enough. There is one actor in this scenario equipped to do the right thing most efficiently, and that’s the priest hearing the confession. That is the moral path.
The Confessional Was the Scene of an Overwhelming Amount of Abuse
As I am sure you know, there is a glaring irony in the argument that the confessional should be protected from mandated sex abuse reporting. Tragically, the confessional was the scene of tremendous amounts of abuse in the Catholic setting. That should come as no surprise for anyone studying child sex abuse—put a child alone in a room with an adult and the opportunity is there. The child does not have the power or understanding to prevent or stop it, as so many Catholic victims can tell you. Your lawyers are arguing to the courts that the First Amendment wraps the Church in immunity from mandated reporting when the very location of the confessional is besmirched by indisputable history.
The mantra in the United States from the bishops is that the clergy sex abuse era is in the rearview mirror. They are saying, “Trust us with your children.” This problem is never completely behind any child-serving institution sadly, though, which means powerful prevention is needed everywhere. One of the tools of prevention is mandated reporting and a culture steeped in child protection. In reality, neither you nor the American bishops will be able to persuade everyone that the Church is really putting children first so long as your emissaries are lobbying to protect the absolute secrecy of the confessional about child sex abuse. There needs to be an exception that moves that information from secrecy to light for everyone’s sake. I will, of course, defer to you on how you get there.
If you are unable to find a way out, and you permit the American bishops to continue their scorched-earth campaign against victims in the courts, legislatures, and confessionals, you should expect more state proposals to do away with the privilege in these cases. That’s because this is an era for transparency. I’m sure you are aware that the Epstein Files Transparency Act passed in Congress with broad bi-partisan support. Lawmakers are finding it harder and harder to side against the victims as the arc of history bends to create “liberty and justice” for children.