A Utah legislator’s proposal to remove protections for priests and other clergy who hear confessions of the sexual abuse of minors has drawn significant criticism from Catholics and other commentators.
“The motivation for the bill is understandable, to uncover and stop the abuse of children, but H.B. 90 will not have this intended effect,” said Jean Hill, director of the Diocese of Salt Lake City’s Peace and Justice Commission.
Removing the clergy exemption would be “making it a crime for the priest to maintain the Seal of Confession,” Hill said in a column for the Jan. 17, 2020 edition of the Intermountain Catholic, the diocesan newspaper. The proposal “could permanently destroy the relationship between our priests and ourselves in the confessional, without furthering the stated goal of the legislation.”
The proposed legislation “places a Catholic priest in the untenable position of violating state law and facing criminal penalties, or violating canon law and facing excommunication,” Hill added.
“For a Catholic priest, revealing the contents of a person’s confession is a mortal sin and grounds for automatic excommunication,” she said. “In the past, priests have been tortured and given their lives rather than break their solemn vow to protect the Seal of Confession. This isn’t just a convenient means of maintaining confidentiality, it is a sacred duty and thus critical to the free exercise of our religion.”
Under Utah law, certain professionals must report allegations of child abuse to authorities. These professionals include clergy, teachers, medical professionals, and law enforcement. At present state law exempts clergy if a perpetrator confesses directly to a religious leader and cannot report “without the consent of the individual making the confession.”
The bill's sponsor, Rep. Angela Romero, D-Salt Lake City, was raised Catholic. She said she “understands our sacraments and it’s not my intent to go against them,” the Deseret News reports. She said her bill doesn’t target any religion specifically.
“This isn’t about the Catholic Church,” she said. “This is about religious institutions ensuring that people aren’t hiding under the guise of confession to get away with hurting children... Because the trauma they experience from sexual assault doesn’t just impact them, it impacts the entire community, it impacts our families. For me, that’s more important than protecting a perpetrator who will likely hurt other children.”
The legislation could affect the confidentiality of confessions to clergy in the predominant religious group in Utah, the Church of Jesus Christ of Latter-day Saints, informally known as Mormons. The Mormon church, whose global headquarters is in Salt Lake City, has not taken a position on the legislation, the Deseret News reports. It has faced criticisms and lawsuits for various leaders’ handling of sexual abuse of minors.
A woman in Oregon is suing the Mormon church for more than $10 million, after her husband was arrested for child sex abuse. He had confessed to his bishop, following the religion's doctrine, and believed the converation to be confidential. The clergyman reported the acts to law enforcement. The lawsuit claims the religion violated a privileged conversation between clergy and a member of the community.
Hill noted that Catholics are not alone “in viewing the private disclosure of wrongdoing as a path to God.” She cited the Orthodox Churches' use of the sacrament of confession, and wrote that the Church of England also “recognizes the inviolability of an act of confession.”
She added that the Mormon church “views confidential admissions of wrongdoing as an essential part of the repentance process,” and that the Presbyterian Church USA and Baptist and Lutheran ecclesial communities “all recognize the pastoral imperative of confidentiality when congregants seek counseling and care from their spiritual leaders.”
House Speaker Brad Wilson, R-Kaysville, does not support the bill.
“I have serious concerns about this bill and the effects it could have on religious leaders as well as their ability to counsel members of their congregation,” he said in an email to the Catholic League for Religious and Civil Rights. “I do not support this bill in its current form, and unless significant changes are made to ensure the protection of religious liberties, I will be voting against this bill.”
Wilson had received hundreds of emails critical of the bill. CNA sought comment from Wilson but legislative staff said he had nothing to add at present.
The House Speaker’s opposition to the bill could prevent it from a committee hearing. Romero said she looked forward to discussing the bill with the speaker.
“I’m hoping my colleagues will give this bill a fair hearing and they understand why this is an important piece of policy,” Romero said. “I hope we can follow the lead of other states who have placed the best interests of children over religious institutions.”
Several groups are calling for an end to the exemption, including the Truth and Transparency Foundation, which runs the controversial site MormonLeaks. The site publishes internal LDS documents relating to budgets, international relations and responses to sex abuse, among other topics.
The group said the exemption is “an affront to the safety and well-being of abuse survivors” that “provides an environment where predators are enabled,” it said in a November 2018 email to state legislators.
Sam Young, a former LDS bishop who founded the group Protect Every Child, is also in favor of eliminating the exemption.
Young, who lives in Texas, was excommunicated from the religion after he advocated for an end to the practice of leaders having one-on-one interviews with children that sometimes included sexually explicit questions, the Salt Lake Tribune reports.
Mandatory reporting exemptions for clergy have been removed by North Carolina, Oklahoma, Rhode Island, Texas, and West Virginia, the Deseret News reports. A California proposal to remove these exemptions was pulled from consideration.
Eric Kniffin, a Colorado lawyer and First Amendment attorney who followed the bill in California, told the Salt Lake Tribune that such proposals to remove clergy exemptions would “damage religious liberties.” He cited the Catholic prohibition on clergy revealing anything said in confession on pain of excommunication.
In Kniffin’s view, protecting clergy exemptions may provide greater benefits in the effort to address sexual abuse.
“The confessional is not just a black hole,” he said. “If a priest hears something in confession, they may urge the person to get help, talk to police or say ‘talk to me outside of the confessional’.”
Like Kniffin, Hill suggested removing legal protections for clergy would be counter-productive.
“There is no evidence that forcing priests to disclose cases of abuse learned of in the confessional would have prevented a single case of child abuse,” she said in her Intermountain Catholic column. “On the other hand, there is every reason to believe the elimination of the privilege would mean that perpetrators would simply not bring it to confession.”
The knowledge that confession is “a sacred conversation with God” would encourage Catholics to seek to make amends to both society and their victims. A priest who hears a criminal’s confession can encourage the penitent to self-report to law enforcement or to seek counseling, or can offer to accompany him or her to report their crime.
“H.B. 90 is a bad law that does nothing to protect children and undermines the very real possibility that a sex offender might repent,” she said.
While legislative counsel that reviewed Romero’s bill said it did not violate any religious freedom, Hill invoked the 1980 U.S. Supreme Court decision Trammel v. United States, which cited the longstanding precedent of protecting confessions to clergy in its ruling on whether spouses enjoy privileges to refuse to testify against a spouse.
“The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return,” that decision said.
Hill told the Deseret News that the bill is “trying to regulate a sacrament of our religion in a way that we believe violates our free exercise rights.”
The Apostolic Penitentiary reaffirmed the inviolability of the seal of confession in a July 1, 2019 note signed by its head, Cardinal Mauro Piacenza.
“Should the trust in the seal fail, the faithful would be discouraged from accessing the sacrament of Reconciliation, and this, obviously, with serious harm to souls,” Piacenza wrote. Defending this seal, he added, “can never constitute some form of connivance with evil,” but represents “the only true antidote to evil that threatens man and the whole world.”
Some court rulings have indicated that legal protections apply not only to religious groups with a formal confession rite.
Earlier this month, the Montana Supreme Court overturned a $35 million sex abuse judgement against the Jehovah's Witnesses on the grounds that a lower court wrongly ruled that the elders involved in hearing abuse allegations did not enjoy religious confidentiality protections guaranteed by state law.