McGuire Megna Attorneys, An Association of Professionals

Should the Confessional Be a Pedophile Safe Zone?

Should the Confessional Be a Pedophile Safe Zone?

Devout Catholics have always believed in the inviolability of the confessional.  In spite of the sacrament changing names over the years-Confession to Sacrament of Penance to Sacrament of Reconciliation (sounds like a Tinker to Evers to Chance), the fact that a Catholic can enter a confessional and tell his/her sins to a priest with absolute confidence that the priest will not ever divulge what is said has been a mainstay and a motivation for confession.  The priest isn’t even allowed to divulge whether a particular person came to confession!  Any priest worth his salt believes this to be a trust that he can never, under any circumstances break.  And, for the most part, Catholics have always appreciated that and accepted it at face value.

Now however the winds of change have roiled the Catholic Church, at least in Australia.  After having spent years of hearing horrific stories of child sex abuse and the Catholic Church’s (and other institutions such as the Jehovah’s Witnesses, Mormons, and Boy Scouts) cover-up, the Australian Royal Commission has announced that it recommends that priests who suspect child abuse after hearing confession should report it to the authorities – or face criminal charges. That is one of the conclusions reached by Australia’s four-year Royal Commission investigating child sex abuse.  While teachers, counselors, social workers, and other professionals are required to report suspicion of child abuse in Australia and the United States, clergy have always been exempt from this requirement.  The Royal Commission believes that removing this exemption will help in preventing child sex abuse and put pressure on priests to divulge to law enforcement authorities their suspicions of abuse or face jail time.

Australia is not the first country to wrestle with this problem which is essentially bound up with the notion of the separation of church and state, at least in this country.  A few years ago, this issue came up in Louisiana. The U.S. Supreme Court declined to hear a petition from a Louisiana Catholic diocese that fears a civil lawsuit could force a priest to violate the seal of confession or go to jail.

The U.S. Supreme Court let stand the Louisiana Supreme Court’s May 2014 ruling that a court hearing is necessary to determine whether state law protects a priest’s conversation during confession with a minor about an alleged sexual abuser in the parish.

Catholic priests are bound to observe the seal of confession and cannot reveal to anyone the contents of a confession or whether a confession took place. Priests who violate the seal are automatically excommunicated.

At issue is a civil lawsuit involving a woman who said that in 2008, when she was a minor, she told Fr. Bayhi that she was being abused by a parishioner. The alleged conversation with the priest took place during the Sacrament of Confession. The woman is now in her early 20s.  The young woman’s family sued the priest and the diocese for damages, saying they were negligent in allowing the abuse to continue.

A trial court had denied the diocese’s motion to prevent any plaintiffs from testifying about any confessions that may have taken place between the then-minor and the priest. However, a state appeals court had ruled that the alleged confession was legally confidential and that the priest was not a mandatory reporter.

Later, the Louisiana Supreme Court overturned the appeals court. It said that a fact finding hearing should determine whether the priest had the duty to report alleged abuse under the state’s mandatory reporting law. It noted that Louisiana law requires any mandatory reporter to report suspected abuse “notwithstanding any claim of privileged communication.”

The Louisiana Supreme Court also ruled that under state law the priest-penitent privilege belongs to the penitent, not to the priest, and if the penitent waives the privilege then the priest “cannot raise it to protect himself.”  This is exactly opposite of the way the Catholic Church understands the priest-penitent privilege.

Two years after this initial ruling, the Louisiana Supreme Court issued an order “clearing up” the confusion caused by its initial ruling.

The Supreme Court conceded that it never “conclusively determined” whether a priest, in administering sacramental confession, is a mandatory reporter of child abuse under provisions of the Louisiana Children’s Code. Such a determination would make priests subject to the mandatory duty to report under the code.

 “Any communication made to a priest privately in the sacrament of confession for the purpose of confession, repentance, and absolution is a confidential communication … and the priest is exempt from mandatory reporter status …” the high court decreed.
There is no indication yet the impact of Australia’s Royal Commission recommendation that priests be held criminally liable for not reporting suspected abuse.  In this country, we have the ruling from the Louisiana Supreme Court.  The US Supreme Court chose to sidestep the issue altogether by declining to hear the case.  Yet, it probably won’t be able to avoid the controversy for long.  The controversy concerns two competing interests, both sides of which can draw legal arguments to demonstrate their case.  On the one hand, we have the protection and welfare of innocent children and on the other we have issues of religious freedom and the separation of church and state.


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