Confessions and sex abuse

New state law requires clergy to report confessed child abuse offenses, but it conflicts with the First Amendment and may not do much to curb the problem

“Bless me father, for I have sinned. … I touched a 4-year old boy in my care inappropriately several times in the last month."

Under Washington’s new child abuse and neglect law, a priest hearing such a confession must report the penitent to civil authorities within 48 hours — and then face dire consequences from his own church for disclosing the crime and identity of the offender.

In a tradition more than 1,000 years old, the Catholic Church and other Christian faiths have prohibited clergy from revealing — to anyone and no matter how heinous the offense — what people confess to them. What is said during confession must stay in the confessional. Confession and penance are considered a sacramental healing of the relationship between the penitent and God.

This so-called “seal of confession” is so sacrosanct that a Catholic priest found to violate it is excommunicated under Church canon law.

As you can imagine, church law can put a clergyman in a painful ethical dilemma, especially if the sinner later reoffends. The new law adds to his or her burden. Confessors are put into a no-win scenario: violate civil law or church canon, and suffer consequences either way.

Gov. Bob Ferguson, a Catholic, signed the law into effect last week, making clergy mandatory reporters of child abuse, even if they learn about it in a confession. The governor said protecting children from abuse is paramount and overrides church edicts and doctrine.

Under the new law —passed as SB 5375 — failure to report child abuse within 48 hours is considered a gross misdemeanor. It applies to all faiths and clergy but has been particularly opposed by the U.S. Conference of Catholic Bishops.

The church already had mandated clergy to report suspected child abuse — but not if the offense is disclosed in confession.

“This new law singles out religion and is clearly both government overreach and a double standard,” Seattle Archbishop Paul Etienne said in a May 4 statement.
”The line between church and state has been crossed and needs to be walked back. People of every religion in the State of Washington and beyond should be alarmed by this overreach of our Legislature and governor.”

Southwest Washington legislators Jeff Wilson, Jim Walsh, Ed Orcutt, Peter Abarno and John Braun — all Republicans — opposed the bill. (The legislative web site does not record a vote by the area’s other state lawmaker, state Rep. Joel McEntire, a Cathlamet Republican).

By compelling clergy to break the sacred trust of confession, the law is an unconstitutional state intrusion into religion that violates the state and U.S. constitutions, opponents of Senate Bill 5375 argued.

I don’t often find myself agreeing with our group of state representatives. And I certainly am uneasy about locking arms with the Trump Administration, which says it will investigate the law for possible “anti-Catholicism” — even though it applies to all religions.

Yet I do here, with some ambivalence. (Full disclosure here: I attended Catholic schools, but I haven’t been to confession in decades and I struggle with matters of faith.)

Two treasured values — child safety and religious freedom — are in conflict. This is a complex, far-reaching issue that dodges easy compromise. I hope readers refrain from knee-jerk reactions such as “you mean that you want to protect sex offenders?”

Far from it. They’re sinners and despicable criminals (but worthy of forgiveness and redemption under Christian doctrine). I ask for a moment that you put aside the binary choices here and explore this issue.

First, on purely practical grounds, if a sinner knows a confessor must report child abuse to authorities, he or she is unlikely to disclose it. This is one of the reasons the early church made confessions secretive.

In addition, at least in a traditional darkened and screened confessional, the priest cannot see the penitent and in many cases — perhaps most — may not know his or her identity. Even in a face-to-face confession, what if the penitent is unknown to the confessor? How far must the clergyman go to ascertain an identity? (This is not spelled out in the legislation.)

And at what point does a “crime” occur? Lust is a sin in Christian teaching, but it is not a civil crime until it is acted on. Are clergy to be on the hook for reporting possible future sexual abuse and potential pedophiles?

And what about deathbed confessions, when disclosure won’t result in prosecutions but could leave an already-grieving family confused, hurt and full of questions? I suppose in this case at least any victims could be counseled if they can be identified.

Furthermore, the law is almost impossible to enforce. If the priest or pastor doesn’t snitch, how would anyone know unless the confessed abuser is found out by other means and rats out the clergyman?

Clergy in most states already are mandatory reporters — like teachers and nurses for example — who are legally obligated to report suspected child abuse. However, the majority of states treat the clergy-penitent relationship as inviolate.

Mandatory reporting laws are essential to rooting out child sex abuse. So the goal of this new law is honorable, but I can’t see that violating the sanctity of the confessional will dramatically combat child abuse. Its benefits are not worth the sacrifice of religious rights.

Courts and state legislatures have long acknowledged the importance of protecting priest-penitent privilege. The 1813 People v Phillips case was among the nation’s first religious liberties case.

In Phillips, a New York court ruled that a Catholic priest, Anthony Kohlmann, could not be compelled to reveal the identity of the two robbers who confessed to him. Forcing him to do so would deprive him of his First Amendment right to practice his religion freely, the court ruled.

One could argue that there is an order of ethical magnitude separating robbery from child sex abuse, but where would you draw the line between disclosure and non-disclosure?

SB 5375 undermines a fundamental and time-honored right and religious tradition. It is a government intrusion into the practice of religion that could set a dangerous precedent. It’s a slippery slope that could undermine the right to privacy and other liberties on many levels.

If the government can compel a clergyman to rat out a criminal, what’s to stop it from compelling spouses to testify against a partner? Or a lawyer from divulging information about his criminal defendant?

Could states some day again prohibit religious groups from conducting gay matrimony — if the conservative Supreme Court reverses its 2015 ruling legalizing same-sex marriages?

What’s to prevent the state from forcing the Catholic and Mormon faiths to ordain women on grounds that those faiths are discriminating? (Note: I support the ordination of women clergy, but do you want the government to impose that decision?)

For that matter, if the state can compel disclosure of secrets of the confessional, why could it not repeal shield laws that guard journalists from having to disclose confidential sources?

“Once the state asserts the right to dictate religious practices and coerce information obtained within this sacrament – privileged communication – where is the line drawn between Church and state?” Archbishop Etienne asked. “What else may the state now demand the right to know? Which other religious practices will it try to legislate?”

There’s no doubt that the churches have to some degree brought this legislation upon themselves by concealing widespread child sex abuse. (And it’s one cause of my personal faith struggles.) You might also argue that churches abused the seal of confession to hide abuse of children.

State Sen. Noel Frame, who sponsored SB 5375, said she was prompted by investigative reporting that found that Jehovah’s Witness churches in the state hid allegations of child abuse.

Child abuse by Catholic priests went on for decades. While the church has taken steps to curb the problem, it has a long way to go. (The Seattle Archdiocese has been a leader in the reform effort.)

Last year, the Pontifical Commission for the Protection of Minors — established by Pope Francis in 2014 — issued its first report, concluding that the church was still failing to ensure that clerical sexual abuse cases were dealt with adequately. It also criticized the Vatican office charged with processing complaints of being slow and secretive, according to The Guardian.

Finger-pointing, though, will not move us to any resolution of this conflict.

Is there some middle ground? Could churches, for example, give clergy discretion to consult bishops or church panels about whether to disclose confessions of sex abuse — especially when there is a real danger that the penitent will reoffend?

Should a doctrine that dates back almost to the origins of Christianity govern and restrict us today? The church can change. The seal of confession is not an expressed biblical mandate.

Surely, some scholars say, there are biblical justifications for clergy to break the seal of confession, especially to protect children. But this should be a church determination, not one governed by justice departments or the courts.

Finally, this debate leaves one asking an essential question relating to our faith leaders: Are clergy even equipped to deal with the agonizing dilemma that church canon forces on them — and which the state’s new law intensifies?

This is all good food for thought. I’m just glad I won’t ever find myself in this squeeze.