U.S. case law and state laws recognize a confessional privilege for all religions. However, the pedophile priest crisis led to calls for abolishing it.
by Massimo Introvigne
In the previous two articles of this series, I started my review of Religious Confession and Evidential Privilege in the 21st Century (Cleveland, Queensland: Shepherd Street Press, 2021), edited by Mark Hill and A. Keith Thompson. I discussed the arguments advanced both in Australia and in Europe in favor and against the idea that the laws protecting the secret of confession and other similar religious practices should be abrogated or restricted in scope. This idea gained momentum after the scandals of pedophile clergy in the Catholic Church and other churches.
Similar problems in the United States are discussed in the book by Gregory Zubacz, who is both an academic and a Catholic priest with an experience in the child protection committees that were instituted in response to the pedophilia scandals. Zubacz notes that the protection of confessional privilege was introduced in the United States through civil law, starting from the famous New York People v Phillips 1813 case, where a Court of General Sessions allowed a priest who had returned stolen items on behalf of a penitent not to disclose the name of the person who had given him the goods during confession. Interestingly, already in 1813, the court relied on the constitutional principle of freedom of religion rather than on British precedents.
However, the Phillips decision was also based on the peculiarities of Catholic confession. In 1817, also in New York, in People v. Smith it was decided that a Protestant minister was not equally protected. This led the New York legislature to pass in 1828 the first American law protecting the priest-penitent privilege for all religions. Between 1828 and 1991, all American states passed similar statutes, and none has been so far repealed. The Supreme Court, starting from the 1876 decision Totten v. United States, also upheld the principle that “the confidences of the confessional” are generally protected.
Several American decisions have mentioned the four criteria formulated in 1904 by the well-known American legal scholar John Henry Wigmore (1863–1943) that justify protection of the confessional secret. The parishioner should have made the communication to the minister with the understanding that it would be kept secret; the parties should have regarded confidentiality as essential; the community should regard the relationship “important enough to be ‘sedulously fostered;’” and “the injury caused by disclosing the communications would overweight its evidentiary value in litigation” (235). However, the third criterium assumes the popularity of religion among the general public, which as Zubacz and other authors of the book observe cannot always be taken for granted today.
Zubacz then examines four cases decided between 2011 and 2018 on the basis of state law and involving child sexual abuse. In Louisiana and Florida, courts maintained that Catholic priests could refuse to disclose details about sexual abuse of children learned in the confessional. Courts in Tennessee and New Hampshire came to the opposite conclusion in two cases involving Baptist pastors. Starting from 2019, legislation making it mandatory for a minister to report to the authorities information about child sexual abuse obtained as part of a clergy-penitent relationship was introduced in both the House and Senate, and failed almost immediately, and in several states. At the time of Zubacz’s writing, two states had passed laws abrogating the confessional privilege while in others similar legislation was hotly debated.
Zubacz expresses his concern for “a general erosion of American religious freedom” (221). He is well aware of the crimes perpetrated by pedophile priests, but believes that the child sexual abuse issue may be used as a picklock to destroy the confessional privilege and severely restrict religious liberty in other fields as well.
As a priest, he also complains that the legislation passed in some states and proposed in others would make him a police informant and “the instrument by which the state may work around the penitent’s constitutional right to silence” (240). It would also persuade many potential penitents not to go to confession at all, “taking away their last and faint hope of the possibility of amending their lives… those who are denied confession will only become worse, sicker, and more diseased” (241).
Zubacz recalls the examples of those the Catholic Church has honored and sometimes canonized as saints for their willingness to suffer persecution and even death rather than revealing the secrets of the confession. They include John Nepomucene (1345–1393) in present-day Czech Republic in the 14th century and Mateo Correa Magallanes (1866–1927) during the Cristero rebellion in Mexico, both canonized; Felipe Císcar Puig (1868–1936) and Fernando Olmedo Reguera (1873–1936), martyrs of the confession in the Spanish Civil War; and Jan Kobyłowicz (d. 1873), who preferred to be deported to Siberia from Ukraine, then a part of the Russian Empire, having been sentenced for a murder he never committed, rather than disclosing what he knew about the case from the confessional.
Zubacz believes that the Supreme Court will eventually decide on the constitutionality of the anti-confession statutes. From his point of view as a Catholic priest, “it is a question of when, not if, the Barque of Peter collides with the dreadnought of the policy of the secular state in the darkness of the night. The Supreme Court will ultimately decide which one will sink” (247).
Archpriest Giorgio Morelli (1943–2021) of the Antiochian Orthodox Church, who was also an academic, sadly passed away while the book was being published. His contribution is more of a theological and pastoral nature. He describes confession in the Eastern Orthodox churches as part of a theology of healing, which has both a bodily and a spiritual dimension.
The Orthodox confession, he explains, is a form of spiritual healing, premised on the idea that a priest does not hear confessions as a human being but as “Christ’s instrument”: “the ‘eye,’ the ‘ear’ of the priest is dissolved in the sacramental mystery” (266).
For this reason, Morelli explains, the question of reporting to the authorities, or anybody else, what has been said in confession does not even arise in the Orthodox churches. “In the Orthodox Church, because a priest does not hear confessions personally as the penitent confesses to God, there is nothing that is reportable under mandatory reporting laws however they are formulated” (271).
On the other hand, conversations with parishioners outside of confession should be reported when the law mandates it. The Orthodox Church, Morelli writes, has also been hit by the plague of pedophilia, and “will do all it can morally, ethically and legally to stop abuse,” but “short of breaking the seal of confession” (272).