As it stands, all clergymen in California are “mandated reporters”, meaning the state requires them to report suspected instances of the sexual abuse of a minor. However, the law exempts one who “acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication” – most obviously, Catholic priests hearing confessions.
California’s Senate Bill 360 (SB 360), introduced by Jerry Hill, would change all that. If passed, a priest who learns of predatory behaviour while hearing confessions would be compelled to break the Seal of the Confessional and report the repentant offender. It’s the most extreme reaction by any government entity to the present abuse crisis.
Naturally, the Archdiocese of Los Angeles has vigorously opposed the bill. In his column for the Angelus, his diocesan newspaper, Archbishop José Gómez points out that, as Catholics, we believe the priest hearing confessions “is only an instrument; he stands in the ‘person of Christ’. We confess our sins – not to a man but to God. The privacy of that intimate conversation – our ability to speak with total honesty from our lips to God’s ear – is absolutely vital to our relationship with God.” He says that SB360 “is a mortal threat to the religious freedom of every Catholic”.
As Archbishop Gómez points out, there are concerns about whether the bill would even be effective. Its sponsor claims 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.” Yet, Gómez notes, “Hearings on the bill have not presented a single case – in California or anywhere else – where this kind of crime could have been prevented if a priest had disclosed information he had heard in Confession.”
This makes even more bizarre the amendment to SB360 that passed through the Senate’s appropriations committee this week. Now the bill stipulates that priests must only break the Seal if the penitential predator is another cleric or a coworker. If the offender is an ordinary parishioner, and it comes to light that the priest had knowledge of the abuse before he was caught, the confessor couldn’t be held culpable. The idea of forcing priests to violate the Seal only to report in other priests will strike many as being, in fact, a good deal worse than the original. The added implication is that abuse is endemic with the Catholic priesthood – so much so that, in the fight to protect children, we don’t even have to bother with non-priests.
Still, whether a predominantly Protestant country like America would care much about this uniquely Catholic practice – one that, historically, Protestants have regarded as heretical – remains in doubt. Surely that contributes to a push by some Catholic figures to bundle the Seal of the Confessional into the religious liberties guaranteed by the First Amendment.
For instance, a California canonist named Fr Pius Pietrzyk pointed out in USA Today that governments “have almost universally upheld a ‘priest/penitent’ privilege, akin to the attorney/client privilege. Although not directly taken up by the US Supreme Court, the privilege is also rooted in the constitutional imperative not to prohibit the free exercise of religion.” Fr Pietrzyk says that, “If this bill passes, no religion is safe. If a core principle as deeply ingrained in Catholic tradition and doctrine can be wiped away this easily by the state, no fundamental rights of religion or conscience are safe.”
Perhaps. But there’s no doubt that the historical protections for the Seal of the Confessional are something of an anomaly. They didn’t arise organically from the First Amendment but, rather, were added by local authorities. As Charlotte Allen noted in First Things: “All 50 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.”
Allen isn’t surprised that such “privileges” are coming under threat in 21st century America. “Our age is so secular,” she writes, “that most people cannot understand why a priest hearing confessions should enjoy any more protection than, say, a psychiatrist hearing confidences in a counselling session. The Seal of Confession may sound to them like an irrelevant medieval holdover.”
It may be that the privileges will only be kept if the original spirit of the laws is maintained – that is, the Seal of the Confessional is something intrinsically good and worthy of protection. Californians would have to be comfortable with the idea of government accommodating the sacred, and acknowledge the existence of laws greater than those ratified in the chambers of their state senate. That seems unlikely even in the best of times.
Yet this is quite another matter from the reality to which Archbishop Gómez drew attention: the absence of proof that this legislation would help in the fight to safeguard children from abuse. If SB360 passes, it will mean that a major state’s government is willing to meddle with the Church’s sacramental life simply because it finds it suspicious. One must wonder what other Catholic practices will be deemed problematic by the California senate. The all-male priesthood, perhaps, or the refusal to celebrate same-sex marriages? We’ll have to wait and see.
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