While the First Amendment covers freedom of religion, each state has its own laws for how to handle confessions, particularly those involving child abuse, like the Louisiana case.
According to the Child Welfare Information Gateway, all 50 states, as well as the District and a few U.S. territories, have laws that designate “mandatory reporters” for child abuse or neglect. About 27 of them include clergy members.
“There’s a clash between child abuse reporting laws and the seal of confession,” said Paul F. Rothstein, law professor at the Georgetown University Law Center. “The church says it’s all behind the seal, but the law in [other] jurisdictions is different.”
To complicate matters, when considering the sanctity of confession within a legal framework, a court has to determine whether the confession was made under the seal of confidentiality or in a less formal meeting.
If a secret is determined to have been shared outside of an official confession, that information could be used as testimony.
“What a privilege does [is] it protects certain kinds of communication,” said Ronald Allen, a law professor at Northwestern University. “In a typical case, you’re protecting the person who’s getting the benefit of the privilege. Typically, in a priest-penitent privilege context, it’s the penitent. But some states that are weird, it’s the clergy who is the holder.”
It’s the holder of the privilege, Mr. Allen said, who can waive that right to privacy, such as in the Louisiana case.
Court documents state that in 2009, the family of a girl sued the Diocese of Baton Rouge, the now-deceased George J. Charlet Jr., the Charlet Funeral Home Inc. and the Rev. Jeff Bayhi. The documents state that around the time the girl was 14, she began an email correspondence with Charlet that escalated over time into Charlet “kissing and fondling” the girl.
The girl, court papers said, on three separate occasions confessed to Father Bayhi that Charlet had inappropriately touched and kissed her, to which Father Bayhi said, “This is your problem. Sweep it under the floor and get rid of it.”
The diocese attempted to block the girl’s testimony about the confession, which was supported by an appeals court, but the state supreme court overturned the ruling and remanded the case back to district court.
Even for advocates of a clear separation of church and state, the idea of clergy-penitent privilege is something to be respected.
“As long as the clergy-penitent privilege is treated similarly to other analogous privileges such as psychiatrist-client or attorney-client privilege, there’s not a constitutional problem,” said Alex Luchenitser, associate legal director at Americans United for Separation of Church and State. “I think in terms of whether privilege can be overridden without consent of the parishioner, you need to show compelling government interest.”