News Analysis

Could priests in California be jailed over the Seal of Confession?

Last week a California state senator introduced a bill to remove the penitential exemption from mandatory reporting of sexual abuse, in what amounts to an attack on the seal of confession.

Jerry Hill, who represents a Bay Area district from southern San Francisco to the outskirts of San Jose, is proud of his bill, touting it in a press release on his website and making clear that its purpose is to remove the exemption for disclosures made in a penitential context.

A factsheet on Hill’s website reads: “SB 360 requires clergy to report suspected child abuse or neglect, even if they acquired the knowledge or suspicion during a penitential communication. Clergy are already mandated to report child abuse and neglect in California, except if they learn of suspected abuse during a penitential communication. This bill would level the playing field by holding them to the same standard as every other mandated reporter.”

Priests already have a mandatory reporting standard outside of the confessional in California, so the clear purpose of this bill is to target the confessional exemption. The three other named individuals who are listed as supporting the bill on Senator Hill’s press release include Jaime Romo, a former Catholic who now belongs to the United Church of Christ, ex-Mormon Ethan Gregory Dodge, and Judy Klapperich-Larson from the Survivor Network of those Abused by Priests (SNAP). Another supporter of the bill is Marci Hamilton, who has long lobbied against confessional exemptions to reporting requirements.

All 50 states recognise some form of priest-penitent privilege by law, codifying by statute what many understand to be a constitutional issue involving the protection of the free exercise of religion.

As Silicon Valley’s state senator, Hill has a donor roster that includes some of the biggest companies in the world. According to California campaign finance data from 2018, Hill received $4,400 from Facebook, $1,000 from Google, $4,400 from the Ghost Group, a major cannabis industry player, $1,500 from Coca-Cola, and $1,500 from Lyft. In 2017, he received $4,000 from Walmart, and over 2017 and 2018 benefited from $6,500 from Tesla.

Catholics should consider asking the companies which have donated to Hill’s campaigns whether they intended to fund this attack on religious freedom. And if the companies are not bothered by it, then perhaps people should reconsider doing business with those companies.

Moreover, the Catholic university Notre Dame de Namur in Belmont, within Hill’s district, appears to have recently had a close relationship with the state senator which it may now review, given his current legislative effort.

Hill was a commencement speaker in 2013, emcee at a Notre Dame fundraiser in 2014, and allowed himself to be roasted in 2011 in a fundraiser for the university’s business school. Before that he was an adviser to the school of sciences, and he presented a former president of the college with a plaque in 2007.

Whatever the fate of Hill’s bill may be in the California legislature – and his record suggests that it might have some chance of success – if passed it would almost certainly be challenged in court. If mandatory disclosure of abuse heard in the confessional is upheld by the California Supreme Court, there would be an inconsistency between that state and Louisiana, which recently upheld the seal of confession, setting the stage for a Supreme Court ruling.

And while the Supreme Court has never ruled on this specific question, it has gestured in the direction of protecting penitential privilege. The unanimous opinion in United States v Nixon, for example, held that while President Nixon did have to hand over tapes of conversations with his subordinates, a priest would not have the same obligation to disclose anything overheard in the confessional.

It may not be the worst thing to set a new precedent protecting the seal of confession, which with the Supreme Court’s intervention is the likeliest outcome should Hill’s bill become law. However, one hopes we can get there without any priests being jailed.