In 2008, a 14-year-old girl found out that the Catholic Church cared more about its priests that it cared about her. After months of sexual abuse by a fellow member of the Our Lady of Assumption Catholic Church, the young girl went to her priest to confess her situation. Her situation, by the way, being that someone was abusing her.
This young woman approached her priest three times about the inappropriate emails, the phone calls, the kissing and molestation. Each time, her priest told her to sweep the abuse under the rug because, as the priest put it, the allegations could cause serious harm to other people.
It’s unfathomable to think why a priest would tell a young girl this, especially after a story that involves molestation.
This young girl didn’t let it rest, though. A year later, after her abuser died, her family filed a lawsuit against the Diocese of Baton Rouge and the priest. Although the case is still waging war in court, the Diocese stands firmly behind the priest, protecting him and the loophole that is now in question.
You might be wondering why the lawsuit is still on-going. The answer is simple — the diocese has pointed to an exemption in the state’s law that points to priests being exempt from reporting abuse allegations.
This loophole is going to get a lot of attention now. It’s the only loophole in the U.S. code that exempts some religious clergy from reporting child abuse, should they choose to use it that way.
It’s also the reason that some in the clergy continue to sexually abuse and molest children. They have this protection that anything said or done in confession can’t be used against them in a court of law.
The Law, The Clergy, and Sexual Abuse Victims
By now, it’s no secret that the law has continuously helped some in the clergy avoid responsibility and/or criminal charges. It has done so in the past to the chagrin of parishioners and faithful clergy alike.
Thankfully, that’s slowing down a bit. More acute reporting on the Catholic Church scandals have become films like “Spotlight” and “Doubt.” There was even a case where a Catholic whistleblower requested a Vatican investigation into the flaws of the US bishops’ sex abuse policies.
Here at home, however, stories like the one you heard above are more commonplace than you think. The reason you don’t hear about it as often as you should is because often, people don’t want to continue a lengthy battle just to get the truth out.
It’s simple. People like the young woman above go to church to confess that someone is abusing them. They don’t go to their parents because they’re ashamed or afraid. Instead, they go to a priest because they believe he will take action. They tell the priest the whole story. Then they wait.
Sometimes it’s not even the kids that go to confession. Sometimes it’s a family member. They, too, believe the clergy will act.
What most abused kids and their families don’t realize is that sometimes clergy don’t take action. This can be because of the code of ethics or standards that might be part of their Diocese or faith organization. This can also be because many clergy feel as though the confession was in confidence and by violating the confessional privilege, they harm their penitent.
In some sickening circumstances, like the one above, kids are shamed into silence because other people might get hurt. They’re shamed into staying quiet because others might be uncomfortable in dealing with the reality of child abuse.
Do you know why confessing abuse to a priest won’t result in action? Well, you can thank a centuries-old loophole in the sex crime laws of this country for that.
It’s called confession carve-out, and it’s hurting the kids that need priests to speak out. They and their families need to know they can count on their faith.
The only thing confession carve-out does is protect clergy from taking full responsibility for not doing the right thing — reporting sexual abuse.
What is Confession Carve-Out?
So what is confession carve-out? It’s one of the names give to a 200-year-old loophole called clergy-penitent privilege. It can be used, in some cases, to protect priests accused of sexual abuse or who know of abuse from prosecution in a court of law.
In other words, in the wrong hands, the privilege can be misinterpreted to throw out testimony in a sexual abuse case, such as in the Diocese of Baton Rouge case. This, of course, only applies to scenarios in which allegations of abuse were leveled within a confession situation.
It is defined as a privileged communication between a clergy member and a parishioner that is inadmissible in court. As long as a person is in confession, anything they tell their clergy cannot be used against them in a court of law.
The clergy member can’t even testify for or against a person in a court of law because it breaks this privilege.
In America and its territories, there are statutes. These statutes identify people who work with vulnerable citizens such as children, as mandated reporters. These reporters must report suspected child abuse and sexual abuse to the proper authorities as part of their responsibilities in their profession.
Mandated reporters include counselors, teachers, doctors, nurses, and more. A mandated reporter, under American law, faces criminal charges for not disclosing alleged abuse.
Clergy members are not beholden to this categorization, and so it is sometimes used in court cases to protect them. Many clergy members, however, do consider themselves mandated reporters and do take action when a crisis is revealed to them.
This loophole did not start off as a way for a portion of the clergy to avoid child abuse issues. In fact, it was put into place to protect pastors, priests, and other clergy members from violating the sanctity of confession, a commitment made by a pastor or priest to their penitent under sanction of being excommunicated should they break that commitment.
The sanctity of confession is one of the most sacred commitments that a priest or pastor is responsible for. Those who work within faith as leaders and counselors take this responsibility, and the majority of them would never use it to their advantage.
It is unfortunate, however, that this commitment has been misused by some clergy members.
In legal terms, the client-penitent loophole has been in American law since 1813 to protect priests from violating their sacred oath. It was originally cited in a case where the New York Police Department refused to force a priest to divulge information shared with him in confession.
It has been a mainstay in the code since then. Even the Supreme Court weighed in on the matter.
In 1980, Chief Justice Warren E. Burger made this declaration:
“The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”
However, clergy have somehow avoided becoming mandated reporters. In some cases, like the 1990 law in California, clergy are named as such but escape responsibility because the loophole exists.
The Truth About Confession Carve-Out
There has been a long fight over this loophole, which many detractors call Confession Carve-Outs. Religious leaders and faith advocates say the law protects priests. Child abuse advocates, abused kids, and others say the law neglects to protect children.
The above graph shows exactly which states allow for clergy to be exempt from reporting the child abuse they may hear about in confession. Out of 50 states, only 6 states and the territory of Guam deny clergy-penitent privilege. Just 6 states.
The rest of the Union has apparently decided that protecting clergy from embarrassment is more important than protecting children from abuse.
So how did this come about?
The Part ‘Religious Liberty’ Bills Play in Sexual Abuse Crimes
Religious liberty within the context of this article is strictly about sexual abuse found within the church. As mentioned before, clergy often are accused of sexual abuse.
Some examples include a recent cover-up of religious abuse, and that vile little Catholic bishop that said sexual assault victims are culpable. There’s also the sick Alabama pastor who raped a little girl on her father’s grave.
There are literally hundreds of reports of pastors molesting little kids and child abuse attorneys begging the church to protect their youngest parishioners. And yet, no one has successfully abolished the confession carve-out or clergy-penitent privilege loophole.
I have to stop and ask, why? Why can’t we close this loophole?
The answer is religious liberty. According to the ACLU, religious liberty is:
“As enshrined in the First Amendment, religious freedom includes two complementary protections: the right to religious belief and expression and a guarantee that the government neither prefers religion over non-religion nor favors particular faiths over others. These dual protections work hand in hand, allowing religious liberty to thrive and safeguarding both religion and government from the undue influences of the other.”
What this means, in the eyes of religious liberty advocates, is that the law protects religious beliefs in many cases. That includes confession carve-outs.
Religious Liberty is Growing
The truth is, the religious liberty movement is growing. In 1993, the Clinton Administration passed the U.S. Religious Freedom Restoration Act, a law designed to protect religious liberties from federal involvement.
Now, however, states are taking it too far. States like Mississippi and Georgia have tried to pass religious liberty bills that are frightening in nature. In these cases, the bills are due to, in part, to the Supreme Court’s unprecedented ruling in favor of marriage equality in the Obergefell v. Hodges case.
Less known, and perhaps for good reason, is how religious liberty plays a role in sexual abuse cases. Lawyers for abusers often cite confessional privilege, the colloquial name for clergy-penitent privilege, if the information has been gleaned from a confession visit.
This loophole effectively throws out all evidence and testimony between a clergy member and the accuser or the accuser’s family. In some cases, this loophole can burn an entire sexual abuse case to the ground.
The Secrets The Clergy Can Keep
Roman Catholics are aware of how important and sacrosanct confession can be. Within the faith, confession is a place where you talk about your sins. After you confess, the priest absolves you of your sins. If you’re a good Catholic, you also do penance.
That’s the way it works, and not just in the Roman Catholic faith. All faiths have some sort of confession, and it’s similar among all of them. This is especially true for Christian faiths.
However, confession hides a dark side. Christianity and Roman Catholicism are being hit especially hard with waves of child abuse allegations. Many times, the abuse is never reported, but when it is, congregation members usually go to the clergy first.
That’s usually where the allegations end.
In confession, everything remains private. That’s the way most church-goers want it. People confess affairs, some crimes, and horrible thoughts and fears they may have. It makes sense they’d want that stuff to remain private.
Some of us still have hope, however, that if you report abuse, the clergy will act.
Many do act. With the confidence of the penitent, clergy are empowered to speak to family members and others in a child’s life to ensure they are safe. When allegations are raised outside of confession, many clergy jump into action and report the abuse to the proper authorities.
Unfortunately, some clergy members do not always take action. Some use it to protect themselves or others, even though that is not the intended use of the privilege.
The purpose of this privilege was always to protect the pact between a pastor or priest and their penitent, not to ignore allegations of abuse. But like with many issues pertaining to the law and religion, there are the rare child abusers who hide behind the law to avoid punishment.
So what does client-penitent privilege mean in the wrong? It means a priest is not responsible for inaction if abuse is alleged in confession. This also means you can’t sue a priest for negligence because, as the religious liberty argument states, it can go against a clergy’s right to religious freedom.
This is a loophole that is over 200 years old. Many religious liberty advocates want the loophole to stay in place. They say it’s important for faiths to stay independent from government.
Child abuse advocates and a growing number of clergy think the loophole isn’t helpful and needs to be reworded. The way the law reads now only hurts kids. It can protect abusers and their enablers. The loophole creates a system that pits a family against their faith.
The Clergy Argument About Confession Carve-Out
So how do the clergy working to protect children view the confession carve-out? If this in-depth article on the abuse scandals plaguing the Catholic Church from PBS Frontline is any indication, it’s safe to say that many of them are not happy with the state of sexual abuse in the church.
Clergy members of many religions have often — and consistently — spoken out against sexual abuse. There are dozens of whistleblowers that have laid the truth bare for parishioners to see and even a database on exactly what they revealed. The scandals have even given rise to Catholic Whistleblowers, a website to actively support sexual abuse victims and to push for reform of the sex abuse policies in the church.
But there is a need among many in the clergy to keep the clergy-penitent privilege. This is understandable, as the clergy-penitent privilege has been around for hundreds of years. It also gives people a sense of security and trust in their religious mentors.
In this New York Times article from 2002, various dioceses in the country have been divided, with the Manchester, New Hampshire, diocese voluntarily turning over names of priests accused of sexual abuse. Other dioceses, such as the one in Boston, Massachusetts, have refused to comply with federal law and continue to hold the confession carve-out loophole is law.
The argument is as divided as religions such as Christianity, Protestantism, and Catholicism make their way through sexual abuse policy reform within their faiths.
But one thing that could be agreed upon is that confession is an oath, a promise, that clergy make to keep a parishioner’s confession secret. It has been a tenet of religion, allowing people the ability to cleanse their conscience and receive guidance from a non-judgmental source.
Is There a Solution?
Yes… Abolish clergy-penitent privilege for all faiths with no exceptions.
It would take a case going all the way up to the Supreme Court, which would hand down a decision that could effectively write the loophole out of existence.
Does this hurt religious freedoms? That is up for debate, because only clergy and their parishioners can decide that.
But the question remains: how can it hurt religious freedoms when kids, teens, and even parents are coming forward to raise suspicions?
That’s the whole point of telling a clergy member about sexual or child abuse. The intent is to always stop the abuse and punish the abuser. Why else would anyone discuss abuse with a priest or clergy member?
A person who can’t depend on the clergy of their faith to protect them from abuse will no longer find peace there. They will walk away from the faith feeling deceived and may turn from religion altogether.
However, a complete ban on confession carve-out is very unlikely to pass, as many parishioners want to keep the clergy-penitent privilege. Their reasons vary, but it is common knowledge that within religion, the privacy of confession is a well-respected tradition.
In a country so divided as this one, the last thing that’s needed is an institution that gives some people the right to refuse to protect children. A child’s welfare is paramount. More importantly, any law that protects abusers or enables someone to prolong abuse because of religious liberties is a useless law.
If you’d like to contact Congress about the clergy-penitent loophole in your state, please call your state Representative or Senator.
In the meantime, check out this video from 2012 about a Michigan pastor who avoided charges of failing to disclose a child abuse allegation through the use of clergy-penitent privilege:
Featured Image: Screenshot Via YouTube Video.
