The State of Washington recently passed a law that requires religious clergy to report information to authorities, even when the information is obtained during the centuries-old rite of Confession.
Although there are other legal ramifications to the new law, of particular significance is the reporting of information involving the sexual abuse of a child that is obtained during the sacramental rite.
Under the new legislation, clergy are required under penalty of law to report to authorities information that is acquired within the sacred walls of a confessional.
The term clergy, as defined in the state law, is “any regularly licensed, accredited, or ordained minister, priest, rabbi, imam, elder, or similarly positioned religious or spiritual leader.”
However, the state is solely targeting what is known as the priest-penitent privilege, leaving a lengthy list of categories of communications impervious to judicial interference, including the attorney-client privilege, the spousal privilege, and the sexual assault advocate privilege.
In my legal assessment, this new law is unconstitutional, discriminatory, and selective in that it exempts from compelled testimony an aunt or uncle, an Alcoholics Anonymous sponsor, a union representative, and an extensive list of others receiving confidential communication.
Catholic priests, on the other hand, are left exposed to be subpoenaed.
The priest-penitent privilege became a legal principle in the law of evidence for the purpose of protecting confidential communications between Catholic priests and those individuals seeking forgiveness and spiritual guidance during the Sacrament of Confession.
In the Catholic Church, the Sacrament of Confession is a sacred religious practice through which individuals confess their sins to a priest, who represents Christ, in order to seek forgiveness, grace, and reconciliation with God.
Priests are obligated to maintain what is called the “seal of confession,” a strict mandate of confidentiality.
The obligation of the confessional seal is so significant that, if violated, the penalty for the priest is as severe as can be: an automatic excommunication.
The confidentiality of communications during Confession is essential for Catholic Christians to be able to freely practice their faith. Being able to speak freely to clergy, without concern that any intimate admissions would ever be disclosed, is key to this sacramental experience.
The Code of Canon Law of the Catholic Church provides insight into the gravity of the obligations to which Catholic clergy are subject.
Canons 983 and 984 deal with the administration of the Sacrament of Confession and the confidentiality required by priests.
Canon 983 states that the sacramental seal is “inviolable,” meaning that a priest may not act against the interests of the penitent in any way whatsoever.
Canon 983 §1. states that “it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”
Canon 984 prohibits priests from any uses of the information acquired in Confession that would be a detriment to the penitent, even when a disclosure of the information is not deemed to be a risk.
The legal privileges set forth in Canon Law support the ability of clergy and penitents to freely practice their religion. It is likewise an integral part of religious freedom in general, as set forth in the U.S. Constitution, which prohibits the state from interfering with sacred religious practices, as per the restraints on government set forth in the First Amendment.
With the new law, Washington legislators are seemingly attempting to use the public’s concern for an extremely serious crime to undermine revered Christian religious practices.
The Catholic Bishops of Washington have responded by filing a lawsuit that challenges the constitutionality of the law.
In the lawsuit documents, the bishops present to the court the legal argument that the State of Washington has, by “putting clergy to the choice between temporal criminal punishment and eternal damnation,” and, “interfering with the internal governance and discipline of the Catholic Church, and targeting religion for the abrogation of all privileges,” patently violated the Free Exercise and Establishment Clauses of the First Amendment to the U.S. Constitution, and also violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, as well as Article I, Section 11 of the Constitution of the State of Washington.
The bishops also cite the discriminatory and arbitrary nature of the state interference by pointing out that the legislature has ignored secular privileges, while unfairly singling out religion.
“Information obtained through privileged communication by any supervisor in an organization other than clergy—including, for example, any non-clergy member of a religious non-profit or any member of a non-religious nonprofit—remains excluded from the reporting requirement.”
For priests, this is an impossible choice: Either violate Catholic Church teaching and incur automatic excommunication; or, after non-compliance with the law, be subjected to imprisonment, endure the confinement for the prescribed time, and suffer the separation from the flock they vowed to shepherd.
No doubt prayers are going up that the Washington State law will be struck down by a federal court.
James Hirsen 