David Skeel writes in the Wall Street Journal about an emerging conundrum in the law: How to separate the confession of sins from the confession of crimes, especially when that act takes place in a non-traditional or ambiguously religious context. Taking the case of a recently-apprehended murderer who evaded capture for decades but evidently revealed his crime to a charismatic Catholic group in the 1970s, Skeel notes that:
When he confessed he was in the Catholic Church but not of it, as part of a group of Christians who believe that the Holy Spirit gives special powers to every believer. Are confessions in this more decentralized context protected?
The answer seems to be no. In 1990, a federal appeals court held that the privilege may apply even if third parties are present, but only if the third parties are “essential to and in furtherance of the communication” between the confessor and the clergy member. [. . .]
Decentralized religious organizations often seem to fall through the cracks when it comes to religious protections in the law. In disputes between a denomination and a local church over ownership of church property, for example, courts have long shown more deference to hierarchical religions than to their less hierarchical peers.
Perhaps Americans should be thankful our bureaucrats have more respect for penitent/clergy privacy than their counterparts in Ireland, where government ministers have publicly toyed with the idea of stripping the Catholic sacrament of confession of any legal shield–in other words, making priests responsible for reporting certain crimes regardless of how they hear about it. Carrying that out, of course, would mean violating one of the most sacred obligations a priest has. Were such a law to be enforced, it’d set up a classic conflict between rival claims of loyalty, and present a definitive choice between the state and the ordinances of God.
But there’s a murkier, unresolved legal issue in the U.S.: Who qualifies as a “minister”? The umbrella of exemption was definitively expanded in the recent Hosanna-Tabor case, but remains, at least for now, fairly open-ended, encompassing the ‘actually ordained’ (priests, reverends, rabbis) then running through religious education teachers, parish employees, part-time volunteers, and ending somewhere around the local chapter of a twelve-step group. And for faiths and Christian communities without as clearly-established an ordination process as the Catholic Church (and there are many such denominations in our democratic land), articulating the boundary becomes messy business for a court.
June 20th, 2012 | 11:25 am
I wonder if the question of who qualifies as a “ministerial employee” (the question in Hosanna Tabor) is relevant to who would be considered a minister should the minister-penitent privilege be invoked. The woman in the Hosanna Tabor case was a fourth-grade teacher who taught math, social studies, music, other fourth-grade subjects, and also taught religion. If someone committed, say, a murder, told her about it, and asked for spiritual advice, could it really be argued that she was a minister covered by the minister-penitent privilege? I am guessing not.
As has been brought up before, some states do not exempt priests from mandatory reporting of child abuse. But certainly where confession is anonymous, or even where it is face-to-face and the confessor does not know the penitent, the priest could hardly be expected to make reports to law enforcement.
It seems to me clear that the law should protect lawyer-client privilege, priest-penitent privilege, and therapist-client privilege.
June 20th, 2012 | 11:28 am
Fortunately, the Catholic church does have a remedy for routine (non-emergency) confession: the right to anonymity. There must be a grill and anonymity must be offered to the penitent – and the priest may also require anonymity to protect himself. For routine confessions, face-to-face is an option that requires opt-in by both. (For confessions in extremis, anonymity can be harder to oblige.)
June 20th, 2012 | 1:06 pm
I think it is in the interest of the Church, the priests, and the penitents that all confessions should be anonymous. It would prevent any Church vs. state dilemmas for both the priest and the penitent, barring, of course, police state style spy cameras in all churches and confessionals.
The other issue that worries me is that we are getting dangerously close to the government effectively sanctioning which types of confessions count as “sacramental” confessions and which don’t.
June 20th, 2012 | 6:06 pm
I believe there is already a significant and established precedent for violating the notion of “privileged confession” in about half the states. Specifically when it comes to the issue of child neglect or abuse. These “mandatory reporter” states (including my own state of North Carolina) often specifically name clergy as being included in the “must report” class and will often very narrowly define what is usually called “clergy penitent privilege” when it comes to such cases.
Thankfully I have never been placed in the position of having to deal with this particular church/state conflict but I am surprised that the author does not reflect upon these laws in the post.
Perhaps it just hasn’t been litigated?
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