There are very few testimonial privileges that are allowed under American law and permit a witness or party to a case to block testimony on certain subject matters. As I have noted before, the law generally disfavors such privileges in favor of the idea that triers of fact should have access to as much relevant information as possible. Many of these privileges, the spousal privilege, the attorney-client privilege, and the doctor-patient privilege, have exceptions that permit or even otherwise privileged information to be revealed under oath. One of the strongest of the limited number of privileges the law does recognize, though, has been the so-called “Priest-Penitent” privilege, which generally prevents a priest or minister from revealing information that they learned in the course of providing ministry to a penitent, most especially as part of an act of confession or act of penance. This privilege is one of the broadest of any that exist in American law but, as we are learning from a case out of Louisiana in which a Baton Rouge Priest faces the choice of either being held in jail for contempt of court or being defrocked as a Catholic Priest:
The state high court’s decision, rendered in May of this year, demands that a hearing be held in 19th Judicial District Court in Baton Rouge, where the suit originated, to determine whether or not a confession was made. It reverses an earlier decision by the Louisiana First Circuit Court of Appeals dismissing the original lawsuit filed against Bayhi and the diocese.
The case stems from a claim by parents of a minor that their daughter confessed to Bayhi during the sacrament of reconciliation that she engaged in inappropriate sexual behavior with grown man who also attended their church. Court documents indicate the child was 12 years old at the time of the alleged sexual abuse.
A criminal investigation by East Feliciana Sheriff’s Office into the alleged sexual abuse was ongoing when the accused church member died suddenly in February 2009 of a heart attack.
The civil lawsuit in question, filed five months later in July 2009, names the late sexual abuse suspect, as well as Bayhi and the Baton Rouge diocese, as defendants. The suit seeks damages suffered as a result of the sexual abuse, noting that abuse continued following the alleged confessions.
The petitioners claimed Bayhi was negligent in advising the minor regarding the alleged abuse and failed his duty as a mandatory reporter in compliance with the Louisiana Children’s Code. It also holds the diocese liable for failing to properly train the priest regarding mandatory reporting of sexual abuse of minors. Defendants claimed, in addition to other points of law, that only the sexual abuse suspect was liable for the suffering the minor endured.
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The sexual abuse was alleged to have occurred in 2008. Both the girl and the alleged abuser were members of Our Lady of the Assumption Catholic Church in Clinton, where Bayhi was a pastor. The petition alleged that on three separate dates in July 2008, the child told Bayhi a church member had inappropriately touched her, kissed her and told her “he wanted to make love to her.” Court documents also say the alleged abuser communicated excessively with the girl over email and asked that she keep their relationship private.
The child testified during deposition that Bayhi’s advice to her was to handle the issue herself because “too many people would be hurt.” Court documents also say she testified, “He just said, this is your problem. Sweep it under the floor.”
The appeals court found that because the confession was “clearly” made during the sacrament of reconciliation, it was considered confidential communication; therefore the priest was not a mandatory reporter. It also found that District Court Judge Michael Caldwell erred in denying the diocese a motion to prevent the minor from testifying about the confession.
The Louisiana Supreme Court said in its ruling that the priest’s confidentiality can only be claimed “on behalf of” the confessor, so the priest can’t claim confidentiality to protect himself since the girl waived her privilege. It maintains that the confession, then, wasn’t “privileged communication,” so he should possibly be subjected to mandatory reporting laws.
Not surprisingly, this has led to a strong condemnation from the Diocese of Baton Rouge, which characterizes the ruling as a direct attack on a central tenant of Catholic teaching:
“A foundational doctrine of the Roman Catholic Church for thousands of years mandates that the seal of confession is absolute and inviolable,” the statement says. “The position of the Diocese of Baton Rouge and Fr. Bayhi is that the Supreme Court of Louisiana has run afoul of the constitutional rights of both the Church and the priest, more particularly, has violated the Establishment Clause and the separation of Church and State under the first amendment.”
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Bayhi acted appropriately in refusing to testify, the statement says, and the nature of “sacred communications” received during confession are confidential and legally exempt from mandatory reporting.
“This is not a gray area in the doctrines of the Roman Catholic Church,” it says, noting a priest or confessor who violates the seal of confession is automatically excommunicated, barring action from the Pope. The statement also says the church is willing to take the issue to the U.S. Supreme Court.
“For a civil court to impinge upon the freedom of religion is a clear violation and the matter will be taken to the highest court in the land by the Church in order to protect its free exercise of religion.”
As a matter of law, it does appear that the Louisiana Supreme Court’s decision that the privilege does not apply here and that the testimony can be permitted to go forward. While it is generally the case that the basis for the Priest-Penitent Privilege can be found in the First Amendment’s protections for the Free Exercise of Religion, the terms of a testimonial privilege are always defined by state law. In this particular case, there appears to be something of a split among the states regarding where the privilege lies and who may assert it. In many states, for example, the privilege can be asserted by either the Clergyman or by the member of his congregation; meaning that unless both of them agree that the testimony should be permitted it would be blocked as long as the Court found that it fell within the definition of what is covered by the privilege. Louisiana, though, is one of those states that says that the privilege rests exclusively with the penitent, which means that if the person who confessed reveals what was said as part of the act of confession then the priest or minister can be compelled to do so as well. So, while I am no expert on Louisiana evidence law, I suspect that the Supreme Court got the matter right when it ruled that, because the penitent had waived the privilege, the Priest has no basis under the privilege statute to refuse to testify.
As Ed Morrissey notes, though, the matter does not end there as far as the Catholic Church is concerned:
There is nothing in church doctrine that requires a penitent to keep quiet about what transpires in the confessional, but the canon law is clear on this point. Can. 983 states that “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” The punishment for breaking the seal is explicitly noted in Can. 1388: “A confessor who directly violates the sacramental seal incurs a latae sententiae [by the commission of the act] excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.”
In this case, the trap is even more complex. The court wants the priest to corroborate the girl’s testimony about the confession. Assuming the priest recalls the confession at all — it was five or more years ago, and priests hear a lot of confessions, and most of them anonymously — he’d have to violate canon law just by talking about it. Plus, if he testifies that the witness is not telling the truth about the confession, he’d be violating the seal of the confessional even more profoundly. Either way, the court would in essence force the priest into betraying his faith and violating his oath or face prison time for contempt of court.
In this sense, an issue like this raises significantly more important issues when dealing with a Catholic Priest or a minister in any other church that has the notion of a “seal of confession,” which as far as I have been able to determine also exists in some form in the Orthodox, Anglican, and Luthern Churches, than it would a member of some other religion. In essence, what the Louisiana courts are potentially going to be asking this Priest to do is to either act direct contravention of his religious faith, and thus be defrocked as required by Canon Law, or go to jail for contempt for some indeterminate period of time. Given that choice, my suspicion is that the Priest will choose to go to jail, with the full support of the diocese, and then the courts will be faced with the question of how long they want to imprison someone for not testifying when it is obvious that they are never going to testify.
Rod Dreher argues that the court’s actions here are a direct threat to religious liberty:
I take no position on whether or not the priest handled the particular situation in the parish wisely or justly, but let there be no mistake: the seal of the confessional must be inviolable. The relationship between a priest and a penitent can only take place in the security of confidentiality given two both parties.
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Again, I’m eager to learn from lawyers who read this blog whether or not the priest here is likely to go to jail, or if he and the diocese are protected by the First Amendment. God help us all if he is not. Even if the plaintiff is telling the truth about the priest advising her in the confessional to sweep it all under the rug, which would make the priest is a scoundrel, the religious freedom principle at stake here is so important that even a scoundrel priest must be defended.
As a preliminary matter, it’s worth noting that there do not appear to have been any First Amendment issues raised in this case, at least not judging by either of the opinions that have been issued (You can read the Court of Appeals decision here, and the Supreme Court decision here.) Presumably, had the argument been made, it would have been addressed in the opinions.As to the issue itself, I tend to agree with Dreher, because there are two obvious infringements on the free exercise of religion that would occur if this Priest were compelled to testify about what was revealed during the Sacrament of Reconciliation. As noted above, the first infringement would be directed at the Priest himself, whose faith and the oath that the took when he became a Catholic Priest require him to take what is said in the Confessional to the grave under the threat of the gravest punishments the Church can hand out. The second, though, would be directed toward every Catholic in Louisiana, if not the nation, for whom the sanctity of the confessional is a central part of their faith and of one of the Church’s most important Sacraments. As Morrissey puts it, the interests of the Church, its Priests, and its Parishoners in protecting the ability to freely exercise this part of their faith is far more substantial than the governments interest in whatever it is that this Priest may be able to testify to in connection with a civil lawsuit. Admittedly, the subject matter of the suit hits a host of emotional touchstones, but one of the most important things about rights such as those protected by the First Amendment is that they exist independent of the emotional content of subjects such as this. In the end, it doesn’t matter if the Priest is being asked about something dealing with sexual abuse or something dealing with simple petty theft. The principles involved remain the same, and the interests involved in protecting the liberty of the church and its parishioners is far more important than whatever facts may be revealed by this testimony.
