In our opinion: The elimination of the privilege of the clergy and of the penitents raises the red flags of the First Amendment

This week, the Catholic League spoke out strongly against the bill in Utah to eliminate an exemption for the clergy when it comes to reporting confidential confessions detailing the abuses. Meanwhile, the Montana Supreme Court recently cited exemptions for clergy and penitents in a decision quashing a $ 35 million verdict against local Jehovah’s Witnesses for failing to report abuses discovered among 2000s. The court unanimously ruled that under Montana law, “the clergy is not required to report cases of known or suspected child abuse if the knowledge arises from communication or a confidential confession from a member of the congregation and the person making the statement does not consent to the disclosure. ”

While the Montana court ruling confirms the continued effectiveness of statutory privileges to protect private confessions to the clergy, some question the wisdom of priestly-penitent privileges when child abuse is confessed. Protecting children from abuse is vital, deserving of tireless efforts to support the victims and prosecute the perpetrators. A majority of States still recognize that such efforts can be continued while balancing the precious protections of certain confidential communications between spouses, lawyer-clients or priest-penitent.

Under Utah law, clergy are among those required to report suspected abuse. But, like the majority of states, Utah also provides an exemption from reporting when abuses are discovered by a confidential confession to the clergy. In addition to Utah, 25 other states have mandatory reporting laws that specifically name the clergy (alongside other community members such as teachers and law enforcement) as required by law to report child abuse.

But, in all the states, except a small handful, the clergy is exempted in the event of clergy-penitential confession. Still other states have laws that make all adults – including the clergy – mandatory reporters of child abuse, but, according to a review by Christianity Today, even a majority of these states (eight in total) even “grant an exemption via the privilege of the clergy-penitent.” ”

As others have argued, the pressure to eliminate the privilege of the clergy and penitents raises red flags from the First Amendment; others are concerned with the elimination of liberty and privacy laws, particularly in an age where mass surveillance is pervasive and personal data breaches are common. For at least two centuries, however, common law jurists have recognized an additional reason why attempts to coerce the clergy to “disclose confessions made … during religious visits” might in fact overturn the main “object of punishment ”, namely“ reform and improvement of the offender. The inherent hope in the confidential confession is that the clergy can help the penitent to change, to reform, and, in the event of criminal activity, to comply with the law, his victims and, ultimately, pay the appropriate legal debt debt to the company for their wrongs.

For centuries, even opponents of religion, such as Jeremy Bentham, have recognized the need to protect privilege rooted both in the Catholic faith and in the common law tradition.

Obviously, the elimination of certain exemptions for members of the clergy and penitents would deter perpetrators from freely confessing. And, in the words of a Colorado-based lawyer discussing the Utah bill, “The denominational is not just a black hole. If a priest hears something in confession, he can urge the person to get help, talk to the police, or say “talk to me outside the confessional.” “

Meanwhile, any legislation that seeks to open the priest-penitent privilege, according to religious experts, risks trampling on the “seal of confession”, a tenant of Catholic canon law dating back to at least the early 1200s. Catholic clergy warns that any betrayal of the faith of the confession leads to the excommunication of a priest. For centuries, even opponents of religion, such as Jeremy Bentham, have recognized the need to protect privilege rooted both in the Catholic faith and in the common law tradition.

None of this should ignore the deeply disturbing cases of violence that occur at the hands of religious. The clergy – alongside other members of the community – must work diligently to eradicate the scourge of abuse in all its forms. There must be zero tolerance and, for Christians, Jesus Christ was unequivocal in his condemnation of those who harm the “little ones”. While there should be no shadow in which perpetrators can hide from justice, by weighing public policy, a majority of states have found ways to recognize the freedoms of the First Amendment and the long-standing importance of confidential confessions while continuing to fight and protect the most vulnerable in society.