OF PRIESTS IN CUSTODY

Socrates and I were sitting outside of our state’s capitol building when Socrates’ friend, Noel, emerged with a smile that gave indication of a political victory. At least that was what first crossed my mind, since she was a state senator, and we had situated ourselves in front of her place of employment. Socrates obviously had the same impression, because when she got within a comfortable earshot he greeted her and said, “Good afternoon, Noel. You have the look of someone who has just won a legislative victory.”

Noel laughed pleasantly, and said, “You’ve guessed correctly. It looks as though we’ve finally rid ourselves of an impediment to protecting children against abuse and neglect.”

“That is good news,” Socrates said. “What was this impediment that you speak of?”

“You are aware of the priest-penitent privilege?”

“Indeed. It is the privilege that prevents whatever a penitent says to his or her priest from coming into evidence at a trial.”

“Well, that also applies to other members of the clergy,” Noel reminded him.

“Naturally,” Socrates replied. “I didn’t mean to be parochial.”

“No pun intended?” I asked laughing.

Socrates looked at me with a grin, but Noel ignored me. Socrates returned his attention to Noel and asked, “So, what have you done with the priest-penitent privilege?”

“I only mentioned it because I knew you would be familiar with it,” Noel said. “But this new legislation, which I sponsored, actually deals with mandated reporters in child abuse and neglect cases.” [1] 

“So, the priest-penitent privilege still applies?”

Noel shook her head. “No, not in the case of child abuse or neglect cases.”

Socrates squinted his eyes and stroked the whiskers on his chin. “I’m confused.”

Noel laughed. “I’m sorry. What I mean to say is that the law exempts privileged communications from reporting requirements. But this new law will remove members of the clergy from that exemption.”

“Okay,” Socrates said. “Explain this to me as if I was a toddler. What reporting requirements are you talking about?” 

“There are certain people who are considered mandatory reporters in the law, which means that once they have reasonable cause to believe that a child has been abused or neglected they are required to report it to law enforcement or the department of children, youth or families.”

“Okay, I knew about that. This includes sexual abuse doesn’t it?”

“Of course.”

“But this doesn’t apply to communications that are considered privileged under the law?”

“That’s right. Except now the privilege covering communications to members of the clergy will no longer be recognized.”

“Interesting. So, what other communications are considered privileged?”

“Well, let’s see. Communications between spouses or domestic partners are one. And, of course, there is the attorney-client privilege.” [2]

“Will those privileges continue to exist in child abuse cases?”

“Yes they will.”

“So, if a child abuser tells his attorney or his wife about his predations, they are under no obligation to report it?”

“No.”

“But if he tells his priest, minister, rabbi, or imam, then they will be required to make a report to the appropriate authorities.”

“That’s right.”

“Why are members of the clergy required to make a report, but attorneys and spouses are not?”

Noel’s demeanor changed to one of apparent frustration. “This is about protecting children, Socrates.”

“A worthy goal indeed,” Socrates replied. “But why wouldn’t you want to equally protect abused children whose perpetrators confess to their attorneys?”

“The attorney-client privilege is sacrosanct in the law.”

“So is the priest-penitent privilege, I thought.”

“Not in this state anymore, not in child abuse cases.”

“Can you do that?”

“Why not?”

“What about the First Amendment?” [3] 

Noel laughed (somewhat derisively it seemed to me). “It’s the First Amendment that requires that the priest-penitent privilege be abolished. It’s separation of church and state.” [4] 

I saw Socrates restrain laughter, I assumed in order to keep the conversation on a polite level. “Well, now, you don’t see how this new law could actually violate the First Amendment?” 

“Of course not. If anything, the state allowing a priest-penitent privilege is establishing religion in violation of the First Amendment.” 

“What about the Free Exercise Clause?” 

“What about it?” 

“The First Amendment prohibits the government from prohibiting the free exercise of religion, doesn’t it?” 

“Yes, but how does the new law do that?” 

“In the Catholic Code of Canon Law, regarding the Sacrament of Penance, it is said that the “sacramental seal is inviolable,” and 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.” [5] 

“Maybe so. But as you must know, a law of general applicability doesn’t violate the Free Exercise Clause as long as it isn’t directed at a religious practice.” [6] 

“Yes, I am fully aware of the horror that is Employment Division vs. Smith. But your law is specifically directed at a religious practice: the practice of the Sacrament of Penance. So it doesn’t even pass muster under that case.” 

“How so?” 

“Haven’t you specifically excluded members of the clergy from the privilege in child abuse cases?”

“Yes.” 

“And aren’t members of the clergy religious officials?”

“Yes.”

“So, how can you say that you haven’t specifically targeted religion with your legislation?”

Noel paused for a moment. It seemed to me that she was trying to restrain her anger. Finally, she said, “Socrates, don’t you care about children who are abused?” 

“Of course I do.” 

“Then how can you think that it’s okay for a priest to conceal information about a child abuser, even if he heard it in Confession?” 

“Seriously,” Socrates said, “what do you really think you’re accomplishing with your law?”

“I’m protecting children.” 

“Do you think that priests are going to break the confessional seal just because you passed a law?”

Noel thought for a moment, then said, “No I suppose not.” 

“In fact, they will willingly go to jail rather than do that, am I right?” 

“Probably.” 

“So, this law isn’t really going to gain information about child abuse, but will actually be a means of jailing priests. That’s all it’s going to accomplish.” 

“So much the worse for priests.” 

“And how will you ever prove that a priest violated your law? If the priest won’t say what he heard in Confession, all you will have is the word of the perpetrator. And his interest will be to deny that he even committed the abuse.” 

At this point, Noel was done with the conversation. “Socrates, as always, you have some interesting points. But I have to be somewhere. So, I’ll have to see you later. Goodbye.”

“Goodbye, Noel,” Socrates replied as she walked away.

I waited until Noel was out of earshot, then burst out laughing. “Always making friends and influencing people,” I said.

“She’s not entirely without a point,” Socrates said. “Maybe the Church should make a rule that when serious felonies are committed, the perpetrator will be denied absolution until he turns himself in.”

“What? Are you Pope Socrates now?”  

“I’m allowed to make suggestions,” Socrates replied.  

--Jack Quirk