- The Washington Times - Thursday, July 10, 2014

A teenage girl’s confession to a priest can be used as testimony in a child abuse case, the Louisiana Supreme Court recently decided in a ruling that has renewed debate over the sanctity of clergy-penitent privilege in the justice system.

The Diocese of Baton Rouge deemed the court’s decision a violation of the separation of church and state, and in a rare statement on legal proceedings, declared the ruling an infringement on religious freedom.

“This is not a gray area in the doctrines of the Roman Catholic Church,” the diocese said. “This matter cuts to the core of the Catholic faith, and for a civil court to inquire as to whether or not a factual situation establishes the Sacrament of Confession is a clear and unfettered violation of the Establishment Clause of the Constitution of the United States. This matter is of serious consequence to all religions, not just the Catholic faith.”

But David Clohessy, national director of the Survivors Network of those Abused by Priests, said his organization doesn’t take a stance on theology, but “there should be some way for clergy to both respect the privacy of adults and protect the safety of crime victims.”

“I don’t pretend to have the magical answer,” Mr. Clohessy said. “Clergy are smart people, usually with superb people skills, and it does seem as though there must be some way to protect crime victims yet also the sanctity of their sacrament.”

According to canon law, the sacramental seal of confession is “inviolable,” meaning “it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” A priest who breaks that seal faces excommunication.

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“A confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded,” according to the code of canonical law.

A priest must keep confidential all confessions, even those of robbery, abuse, terrorism, murder — even of poisoning the wine just before Mass. Revealing a confession anonymously is prohibited.

“The clergy-penitent privilege is one of a significant number of privileges that we give in the legal system to protect confidential communication between clients,” said Norman Abrams, emeritus law professor at the University of California, Los Angeles.

Mr. Abrams noted that lawyer-client and doctor-patient confidentiality is upheld for the majority of confessions. Imposing limitations, such as forcing a priest to break a sacramental seal, would infringe on the priest’s freedom to practice his religion, he added.

While that privilege might sound excessive, the Constitution protects that sacrament via the First Amendment.

“Whether it’s the Catholic Church, Protestant Church, Muslim mosque or Jewish synagogue — all of these communications of a penitential nature — the communications themselves would be protected,” said Chad Marzen, assistant professor of legal studies in business at Florida State University. “Another privilege courts traditionally give strong deference to is something like national security secrets or state secrets. There are certain areas in evidence law where presumption is not going to force discovery.”

The problem, however, is when confessions involve admissions of serious crimes, such as child abuse.

“I think it’s a very interesting conflict placing priests between centuries-old holy rites and mandatory child abuse statutes,” said Kari Dalton, a law professor at John Marshall Law School and author of “The Priest-Penitent Privilege v. Child Abuse Reporting Statutes: How to Avoid the Conflict and Serve Society.”

“When you involve priests as mandatory reporters under child abuse reports in states, you run into lots of potential constitutional issues,” Ms. Dalton said.

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.”

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