A bill making its way through the California legislature would make the state the largest in the country — and the first since 1999 — to require priests to choose between violating the law or violating the seal of the confessional.
At issue is the serious matter of child sexual abuse. Seven states right now require priests to violate the seal to report child abuse based on legislation passed in the 1970s, ’80s, and ’90s.
While many states have tried since 2002 to pass laws resembling California’s Senate Bill 360, none have been successful. Instead, lawmakers around the country have concluded similar bills would not protect children and would be an egregious violation of religious liberty.
But last year’s “summer of shame” — which included a Pennsylvania Grand Jury report on historic abuses by priests, the revelations of sexual misdeeds by then-Cardinal Theodore McCarrick, and multiple state Attorney General investigations into clergy abuse records — has taken the battle against sexual abuse to the confessional box.
In California, priests, along with teachers, social workers, doctors, and other professionals, are “mandated reporters.” That means they are required by law to report any case of suspected abuse to authorities.
But currently, there is an exemption in the law for any clergy member “who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication.”
SB 360’s sponsor, Sen. Jerry Hill, D-San Mateo, said his bill is necessary because of evidence that the confession privilege hurts children.
“Recent investigations by 14 attorneys general, the federal government, and other countries have revealed that the clergy-penitent privilege has been abused on a large scale, resulting in the unreported and systemic abuse of thousands of children across multiple denominations and faiths,” according to Hill.
Buoyed by those assertions, proponents of the bill showed up in force at a Senate Public Safety Committee hearing in Sacramento April 2. Citizens lined up to voice their opinion on the bill, including sexual assault victims who told of how their reports of abuse to faith leaders from various religions had gone unaddressed.
Among the lawmakers who came out in support of Hill’s bill was committee member Sen. Hannah-Beth Jackson, D-Santa Barbara. In her remarks, Jackson equated the penitential privilege with a “pass” given to churches.
“The state, the people do have the right to limit certain practices that are believed to be inappropriate [and] immoral,” Jackson said at the hearing.
“We are a society. We are governed by laws, we are governed by what we believe to be morally correct, and what is in the best interest of our communities and society. And I would submit having, accepting … condoning, allowing this kind of behavior to continue on a claim of religious freedom, is anathema to everything we hold dear.
“This has got to stop,” she added.
Yet Catholics and others strongly dispute Hill’s analysis. While committed to ending sexual abuse in the Church and in the broader society, they say there is no evidence for Hill’s allegations that the “penitential exemption” is being abused. They also question whether the members of the legislature understand how confession works in the Church.
Confession is only Catholic
SB 360 does not explicitly single out confession or the Catholic faith. Instead, it uses the term “penitential communications” without naming specific religions.
California law protects any confidential communication between a person of faith and his or her minister, explained Father Pius Pietrzyk, OP, a canon and civil lawyer who teaches at St. Patrick’s Seminary and University in Menlo Park, California.
In an interview with Angelus News, Pietrzyk said that “so long as the person has an expectation of confidentiality with regard to that spiritual matter, all those communications do not fall under the [mandated] reporting requirement” in California law.
Pietrzyk wrote a strong op-ed piece against Hill’s bill in the April 28 edition of USA Today.
He noted that historically, the courts in the U.S. “have almost universally upheld a ‘priest-penitent’ privilege, akin to the attorney-client privilege.”
“Although not directly taken up by the U.S. Supreme Court, the privilege is also rooted in the constitutional imperative not to prohibit the free exercise of religion,” he wrote.
Pietrzyk says SB 360 wrongly conflates current reporting requirements applied to state-licensed employees — doctors, lawyers, and social workers, to name a few examples — with those of priests, who are not licensed by the state.
“Unless Senator Hill is contending that priests must be licensed by their state, essentially he’s turning priests into agents of the state, which is precisely what the First Amendment is meant to avoid,” said Pietrzyk. “It’s hard to argue that this bill is anything but a direct assault on the First Amendment.”
Pietrzyk said the bill’s authors do not seem to understand that the sacrament of reconciliation is a communication that is not like others broadly classified as “penitential communications.”
Only confession, as understood by Catholic church law, has an “absolute inviolability,” meaning that the priest is forbidden to disclose any information gained in the sacrament, under pain of excommunication from the Church.
While the proposed law focuses on sexual abuse, this kind of legislation can lead to a “slippery slope” in which the state demands that priests disclose other sinful actions that also happen to be illegal.
“Surely murder, theft, spousal abuse, child neglect, and rape are terrible crimes,” wrote Los Angeles Auxiliary Bishop Robert Barron in a May 7 Word of Fire online article. “Would the state determine that priests are obligated to report these offenses to the authorities, should they hear of them in the confessional?”
“If the state of California can essentially insert itself into the sacrament of confession with regards to child abuse issues, why can’t it insert itself into any other issue it deems to be of public importance to the state?”
Confession in other states
The campaign to force open the seal of the confessional in cases of revelations or claims of sexual abuse is not a new one.
Currently there are seven states with laws requiring priests to report information gained solely in the confessional: New Hampshire, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, and West Virginia.
Seven states in recent years have tried to pass their own versions of a “confessional bill” since 2002 but have failed: Massachusetts (2002), Kentucky (2003), Connecticut (2003), New Hampshire (attempted to amend the existing law in 2003 and 2006), Maryland (2003), Nevada (2003), and Florida (2003).
Church advocates in those states successfully pointed out several problems with the bills, such as the difficulty of a priest identifying a penitent (since the sacrament itself doesn’t require a person to identify themselves), concerns about government intrusion, and the First Amendment’s protections regarding the free exercise of religion.
Pietrzyk said there’s an argument to be made that “mandatory reporting laws can push people away from seeking the help that they need, or from coming forward” out of fear of the law.
Ultimately, however, he sees SB 360 as “opening the doorway to a greater entanglement” in which “essentially the state of California is forcing priests to be agents of the state, even within the confessional.”
But could that really happen in the Golden State?
“I just don’t think any priest is going to come forward as a mandatory reporter for anything he hears in the sacrament of confession,” said Pietrzyk.
“All it will have an effect in doing is putting a cloud over innocent priests. And I think that’s the real intent. My fear is that’s the real intent, to scare the Church. Because that’s the only effect it’s going to have.”
Resisting SB 360
Leading efforts to resist SB 360 are the California Catholic Conference (CCC) and the Pacific Justice Institute (PJI), an evangelical Christian pro-bono legal advocacy group active in California.
In its statement against the bill, the PJI argued such a law would do “little to address the causes of such abuse while sweeping away centuries of legal protections.”
According to CCC Executive Director Andy Rivas, the existing state law requiring priests and ministers to be mandated reporters is something that his bosses — the state’s Catholic bishops — “believe is right and important.”
“However, there is no evidence that forcing priests to disclose what is learned in the confessional would prevent a single case of child abuse,” Rivas told Angelus News.
“There is every reason to believe that doing away with the privacy of the confessional, a core principle of our Catholic tradition and doctrine, would create confusion, discourage spiritual counseling, and deter many from seeking a closer relationship with God without gaining any protection for children.”
The California Catholic Conference is urging Catholics to oppose SB 360 which would revoke the “Seal of Confession.” To tell your State Senator to vote “NO”on SB 360, click here. A crucial vote in the State Senate is expected by the end of May.
Pablo Kay is the editor of Angelus.