Why the California confession bill has Catholics up in arms.

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An ornate confessional booth.

Historically, American law has carved out a “clergy-penitent privilege” for the confessional that is similar to attorney-client privilege.

Annie Spratt on Unsplash

The capital of California was named for a river that was in turn named for the Catholic sacrament of the Eucharist. So it’s notable that last month state senators in Sacramento passed a bill that some say will force Catholic priests to violate a different Catholic sacrament: confession, also known as the sacrament of reconciliation.

Confession, as shown in a zillion pop cultural depictions, is a private conversation between a priest and an individual, meant to encourage Catholics to examine their consciences and request forgiveness from God. The format varies—for example, the two parties may sit face to face, or with an opaque screen between them—but the penitent is encouraged to offer a full inventory of her sins since her last visit. In return, the priest is bound by an ironclad oath of secrecy called the “seal of confession.”

Historically, American law has protected that seal, carving out a “clergy-penitent privilege” for the confessional that is similar to attorney-client privilege. But a bill making its way through the California state Legislature would ever-so-slightly crack the seal open. SB 360, which passed the state Senate in May, would require priests to report suspicions of child abuse obtained through confession in some circumstances. The bill is expected to be voted on by the lower house of the state Legislature in September, according to Catholic News Service. And many Catholics are not happy about it.

Clergy are already among the many professionals deemed mandated reporters for child abuse in California. But state law makes an exception for “penitential communications” obtained in settings where the cleric has a sacramental duty to maintain secrecy. As reporter Jack Jenkins recently pointed out, California’s pathbreaking 1990 law designating clergy as mandated reporters included a confessional carve-out that many other states added when they later adopted similar laws.

Historically, American law has carved out a “clergy-penitent privilege” for the confessional that is similar to attorney-client privilege.

The new bill might seem like a very modest burden. In fact, its current language is even narrower than earlier drafts: In the version that passed, a priest would be bound to report suspicions of abuse only if the confessor is a fellow priest or an employee of the same institution—almost all lay people would remain unaffected. But some Catholics remain alarmed by what they see as a state intrusion into a sacred ritual. The policy arm of the state’s conference of Catholic bishops called it “an attack on the sanctity of the confessional.” Robert Barron, a prominent bishop in the Archdiocese of Los Angeles, called it “an egregious violation of the principle of religious liberty” and wrote that it “should alarm not only every Catholic in the country, but indeed the adepts of any religion.” And in an interview with the New Yorker’s Isaac Chotiner this week, New York Times columnist Ross Douthat listed the bill as an example of liberals in power “taking stances that are increasingly hostile to conservative Christian institutions.”

These objections can be hard to understand, especially in the context of renewed awareness of the catastrophically widespread sexual abuse crisis within the Catholic Church. No one who objects to the bill would say they want to protect abusers. But it’s not just a human tradition, the argument goes; it’s a ritual instituted by God. And if priests are required to report suspicions of child abuse, then why not other serious crimes? Others raise practical concerns: What if a priest cannot identify the confessor because of the privacy screen between them?

The California bill would represent a potentially life-altering decision for priests. The church’s own laws forbid priests from betraying a penitent’s confidentiality for any reason, with an automatic and immediate punishment of excommunication. (This means more than the loss of a job: It signifies expulsion from Christian community and a ban on receiving future sacraments.) Throughout church history, there are stories of priests choosing to be executed rather than betray the seal. Some priests say that if faced with the decision that could be forced on them by the California bill, they would defer to the church’s law. “Break the seal or go to jail? Absolutely, I would not break the seal of confession,” one Nebraska priest told Catholic News Service this week. “I would go to jail.”

Because of the nature of the confessional, the only information about how it has actually been used by pedophiles is anecdotal. In 2003, an Australian priest said in an affidavit that he had confessed to 30 priests more than 1,000 times over many decades that he had molested children. (He pleaded guilty and served six years in prison.) But it’s not at all clear that such confessions are common. Priest Stephen Rossetti, a professor at the Catholic University of America who has written about priests’ psychology and wellness issues, told the National Catholic Register that in his 35 years as a priest, he has never heard anyone confess to abusing a minor, nor heard of anyone else who has. Rossetti opposes the California bill, calling it “a dangerous precedent.”

But some Catholic thinkers say it is time to consider breaking the confessional seal. “Secrecy in the church is a major problem,” James Connell, a canon lawyer and a priest in the Milwaukee Archdiocese, told me. Connell sees a connection between Catholic resistance to the California bill and a broader culture of secrecy within the church. There’s “the pontifical secret,” a rule of confidentiality around a wide range of Vatican documents and communications. And then there’s the oath taken by new cardinals, who swear never to divulge any secrets that might dishonor the church. As critics see it, these are traditions that reflect cultural priorities of self-protection over transparency and truth.

Those other traditions of secrecy are also being reexamined in some Catholic circles in response to the abuse crisis. In February, a professor of canon law delivered a keynote address at a Vatican summit on protecting minors in which she called for reforms to “pontifical secrecy.” She urged a revision that “allows the development of a climate of greater transparency and trust, avoiding the idea that the secret is to hide problems rather than to protect the assets at stake.”

Connell argues that in these extraordinary circumstances, when the church has failed over and over again to protect children from harm, confession deserves to be reexamined, too. “We have a responsibility to try to prevent aggressors from harming people,” Connell said. “With this privilege [of not reporting child abusers who confess], we’re reversing that. We protect the culprit and endanger the child. This is the reverse of the catechism—and of common sense.”



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