Demagoguery Regarding the "Seal of the Confessional"

Beyond "BunnyGate," one of the issues that has gotten the Catholic blogosphere all up in arms is the US Supreme Court's failure to accept a request from the Catholic Diocese of Baton Rouge to review a decision of the Louisiana Supreme Court (known in legal parlance as a "petition for certiorari").  The LA Supreme Court decision can be found here.  I've got to put my lawyer hat on for this one--the claims made by the Diocese of Baton Rouge, and the Catholic bloggers, are entirely disingenuous, and the Louisiana Supreme Court absolutely got this one right.

Like any case, the holding has to be understood in the context of its facts.  A 14 year old girl alleges that she was molested by a George Charlet, both parishoners of Our Lady of the Assumption Catholic Church in the Diocese of Baton Rouge.  The girl goes to her priest and, in confession, says that Mr. Charlet is molesting her.  According to the 14 year old:

[T]he priest allegedly responded she simply needed to handle the situation herself, because otherwise, “too many people would be hurt.” The minor child testified that, during one of those confessions, she told the priest what had happened and asked for advice on how to end it. According to her deposition testimony: “He just said, this is your problem. Sweep it under the floor and get rid of it.”

Let's pause here and talk about the "seal of the confessional," or in secular legal terms the "priest-penitent privilege."  Here's Louisiana's version (Louisiana Evidence Code, article 511), which is similar to the one's I've seen in other states:

A. Definitions. As used in this Article:
(1) A "clergyman" is a minister, priest, rabbi, Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is "confidential" if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

B. General rule of privilege. A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person. 

Basically, if I ("a person") go to someone for any sort of spiritual advice (not just the formal confession process) I have the right not to discuss what was said, and I have the right to prevent the clergyperson from discussing what was said.  Moreover, if some third party tries to get the clergyperson to speak about our conversation, the clergyperson has the right to invoke the privilege on my behalf--that's the "presumed to have authority to claim the privilege" business in Section C.

Evidence law talks in terms of the concept of the "holder" of the privilege--who has the right to invoke the privilege, and correspondingly who has the right to waive it.  Given the structure of the rule, it is clear that the penitent is the holder of the privilege.  "A person has the privilege to refuse to disclose . . . a confidential communication by the person to a clergyman. . . ."

The upshot of all of this is that the 14 year old is the holder of the privilege.  She could choose to stay silent about what was said in the confessional, or she could waive the privilege and speak about it.  Once she waived, the priest was free to discuss it as well, and offer whatever testimony he would offer about that conversation.

The Diocese of Baton Rouge didn't see it that way.
They filed a motion to try to prevent the 14 year old from testifying about what happened in the confessional.  The argument goes like this.  Canon law interprets the seal of the confessional to be unwaivable with regard to the priest--he can never disclose what was said in the confessional.  He's free as a legal matter to stay silent, of course--this is a civil case, and so he can't be made to say anything about anything.  However, his silence means that the 14 year old's account of the events are unrebutted.  That's bad for the Diocese's position that the priest didn't do anything wrong visa ve Mr. Charlet's abuse, and so they want the entire issue excluded.

Keep in mind a couple of things.  First, even in the brief summary of the facts recited, it is clear that there are other, clearly non-privileged, communications regarding the alleged abuse that occurred.  The statements made in the confessional are not the only basis for the plaintiff's claims.  Second, let's be clear about the Diocese's position.  They want a gag order, preventing anyone who goes to any kind of spiritual counselor from saying anything about what was said in the course of the session.

The Louisiana Supreme Court, in essence, told the Diocese of Baton Rouge "umm, that's not a thing."  And, clearly, that's correct--there is no legal justification for imposing a gag order on people who go in for spiritual counseling.  It doesn't take great imagination to see the problems with the Diocese's proposed rule, particularly in the context of, it must be said, the reality of sexual abuse (especially of minors) by Catholic priests and other clergypersons.  Remember, this is not simply about the confessional--the priest-penitent privilege covers any private communication that can be construed as spiritual counseling or guidance (and, if the priest says it was spiritual counseling, how are you going to argue otherwise?  You can't talk about what was said, remember?).  A clergy abuser would be able to silence his or her victims by invoking this rule.  This is obviously untenable.

I'm willing to give the bloggers a pass on this.  Sure, you have people like the ever-alarmist Jennifer Fritz and Simcha Fisher talking about priests going to jail and all sorts catastrophic scenarios that are in no way implicated by this ruling.  Remember, the only person who can free the priest to disclose what you said in the confessional is you, this solution of having the conversation outside of the strict bounds of confessional solves nothing (the legal privilege still applies), and there is absolutely no scenario under which this priest, or any priest, is going to go to jail.  But I chalk that up to the fact that they are not lawyers and they don't understand how testimonial privileges work.  It would be nice if they took the time to learn about it before mouthing off, but whatever.

The Diocese of Baton Rouge does not deserve such a pass.  They have lawyers, and they know exactly what they are doing.  This case is not really about the seal of the confessional.  It's about the second part of the opinion, which discusses whether the priest was a mandatory reporter of child abuse in that situation.  The LA Supreme Court didn't definitively rule on the issue, but the statute they cite certainly makes it look like he is.  We have a priest who knew that one of his parishoners was being molested, and he appears to have been more concerned about making the whole thing go away quietly then contacting the appropriate legal authorities.  He got caught, and now he is trying to weasel his way out of responsibility.

The events of this case did not happen in the distant past, and it didn't happen during the period of time that the Catholic Church claimed it didn't fully appreciate the problem of child abuse.  This happened in 2008, years after the revelation of the abuse in Boston.  It is also six years after the promulgation by the US Conference of Catholic Bishops of the "Dallas Charter," which committed the US Church to "report an allegation of sexual abuse of a person who is a minor to the public authorities," and "cooperate in [public authorities'] investigation in accord with the law of the jurisdiction in question."

The priest in this case, and by extension the Diocese of Baton Rouge, clearly and obviously did not follow-through on that commitment.  Moreover, the Diocese of Baton Rouge took a legal position that is manifestly incompatible with--and, in fact, a negation of--that commitment, and defended that position all the way to the United States Supreme Court.

We hear that the Catholic Church now "gets it" with regard to child abuse.  This case is a sign that we shouldn't believe it.

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