On February 20, California Democratic State Senator Jerry Hill, whose affluent, liberal-leaning district encompasses the San Francisco Peninsula and portions of Silicon Valley, introduced a bill to abolish legal protection for the Catholic Church’s sacramental seal of confession, at least as regards confessions of child abuse.

Specifically, the bill would remove an exemption for “penitential communications” in an existing state law that designates more than forty categories of professionals—clergy, physicians, teachers, counselors, social workers, and the like—as “mandated reporters” who face criminal penalties if they fail to report sexual and other mistreatment of children that they learn about in their professional capacities. Currently, the law carves out a narrow exception for information obtained during the Catholic sacrament of Penance and other religions’ similar penitential rituals, which bind clergy to secrecy. If the California legislature enacts Hill’s bill, that exception would disappear—and Catholic priests, bound by canon law not to disclose the contents of a confession, could face criminal prosecution and imprisonment for refusing to comply. “The law should apply equally to all professionals who have been designated as mandated reporters of these crimes—with no exceptions, period. The exemption for clergy only protects the abuser and places children at further risk,” Hill said in a statement accompanying the proposed measure, SB-360.

The Catholic doctrine of the seal of confession dates back to the Fourth Lateran Council of 1215, which mandated that Catholics confess their grave sins to a priest via the sacrament of Penance. The latest formulation of the church’s Code of Canon Law states: “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” The penalty for any priest who divulges anything heard in confession—or even a penitent’s identity—is automatic excommunication. Eastern Orthodox churches do not have such an explicit rule, but they do have the same expectation of absolute secrecy surrounding sacramental confession. Since the Middle Ages it has not been unusual for priests to risk—and occasionally endure—martyrdom from secular authorities rather than break the seal, as did several priests executed by militant secularists during Mexico’s Cristero uprising of the 1920s and the Spanish Civil War a decade later. Alfred Hitchcock’s 1953 film, I Confess, involves a priest who risks conviction for a murder he did not commit after the true murderer confesses the crime to him and he is bound not to reveal it.

Interestingly, although America is historically Protestant, it has also historically recognized the binding power of the Catholic seal of sacramental confession. All fifty states and the District of Columbia have “privileges” built into their evidence codes that protect disclosures between penitents and priests, as well as other kinds of confidential communications with clergy whose faith forbids disclosure. But times have changed. Our age is so secular that most people cannot understand why a priest hearing confessions should enjoy any more protection than, say, a psychiatrist hearing confidences in a counseling session. The seal of confession may sound to them like an irrelevant medieval holdover.

Furthermore, for nearly three decades the Catholic Church has been embroiled in scandals involving widespread sexual abuse of minors by members of its own clergy—abuse that was often ignored or covered up by the Church’s own hierarchy. To many non-Catholics—conservatives as well as liberals—the Church simply lacks the moral standing to argue for any exemption to a law that is designed to deal with the exact evil in which many Catholic priests participated before the scandals broke. Even to some Catholics now, the seal of confession simply means that “sexual abusers go unreported to civil and church authorities, and potential additional victims are endangered,” as James E. Connell wrote for the National Catholic Reporter in November 2018.

After a wave of news reports in 2002 about priestly sexual abuse in Boston and its environs, the state of Massachusetts abruptly overhauled its existing mandatory-reporting laws, which did not include clergy at the time, to extend the reporting requirements to them. About a dozen other states in a similar position followed suit. Right now, nearly all states have mandatory-reporting laws respecting child abuse, but they are a hodgepodge on the issue of a priest-penitent privilege. Some states, such as California, protect penitential communications, while others, including Connecticut and Texas, have specifically eliminated the privilege, as SB-360 would do. Still other states maintain the privilege, but subject to conditions.

Lawsuits that might clarify those statutes via judicial rulings are almost vanishingly infrequent, since there usually is no practical way to find out whether priests have failed to comply with them. One rare case involved a 2009 civil lawsuit against the Diocese of Baton Rouge by parents of a 14-year-old girl who, they alleged, had told a priest in the confessional that an older parishioner had molested her. The priest not only failed to report the crime, but told her to “sweep it under the floor.” The priest refused to testify, and the suit dragged on for years. In 2016 the Louisiana Supreme Court ruled that sacramental confessions were protected under the state’s mandatory-reporting law but sent the case back to the trial court to determine whether the girl had actually been making a confession or merely seeking help. It was not until February 2018 that a trial judge dismissed the suit after deciding that a secular court had no jurisdiction to rule on points of Catholic doctrine and discipline.

That was a victory for religious freedom—but only in Louisiana. California, by contrast, is notorious for open hostility to Catholicism from many of its elected officials and for being dominated by ultra-liberal Democrats. California’s attorney general, Xavier Becerra, has spearheaded litigation to force the Little Sisters of the Poor, a Catholic religious order, to pay for contraceptives for its employees in violation of Catholic moral teaching—even after the U.S. Supreme Court shielded the Sisters from such requirements in 2016. A new wave of allegations in 2018 of past coverups of clerical sexual abuse has likely not helped the Catholic Church win friends in California.

In 2018 several Australian states and territories passed laws that require priests to break the seal of confession to report cases of sexual abuse of minors. Several Australian priests have openly vowed to defy the laws and risk jail if they must, citing the inviolable nature of their duty of secrecy under a law they regard as more binding than any secular statute. If SB-360 becomes the law in California—and if Catholicism-hostile law enforcers decide to trap priests in their confessional boxes—we could well see another round of, if not martyrs, men willing to risk all for their faith.

Charlotte Allen is a writer living in Washington, D.C.

Photo by Emilio Labrador via Creative Commons. Image cropped.

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