Suresh Garimella’s neutron bomb approach to the humanities notwithstanding, sometimes a professor of religion comes in very handy. Take Friday, March 3 for example. On that day, the Senate Judiciary Committee heard testimony on S.16, a bill that would require clergy to report cases of child abuse and neglect even if they learned of such crimes in confidence while acting as a spiritual advisor. Like, say, a Catholic priest hearing confession, but let’s not get ahead of ourselves.
Lined up to testify were not one, not two, but three Catholics, including Bishop Christopher Coyne of the Diocese of Burlington. You can guess what they had to say: Removing the confessional exemption would force priests to choose between state law and canon law. It would infringe on Catholics’ First Amendment right to free expression of religion.
After all of that, the committee heard from Tom Borchert, chair of the Department of Religion at the University of Vermont. And boy, did his testimony make my ears perk up.
The two big takeaways: First, the “spiritual advisor” exemption describes one and only one religious practice: Catholic confession. Second, the law as currently written creates a First Amendment issue on its own.
The law on reporting child abuse covers a broad range of professionals, from health care providers to educators to social workers to camp owners and staff to clergy.
There’s one big exception for clergy who learn of abuse in confidence while acting as a spiritual advisor. This is clearly expressed in the law:
Except as provided in subsection (j) of this section, a person may not refuse to make a report required by this section on the grounds that making the report would violate a privilege or disclose a confidential communication.
Subsection (j) sets out a four-pronged test. For the exemption to apply, each of the four must be true:
(j) A member of the clergy shall not be required to make a report under this section if the report would be based upon information received in a communication that is:
(1) made to a member of the clergy acting in his or her capacity as spiritual advisor;
(2) intended by the parties to be confidential at the time the communication is made;
(3) intended by the communicant to be an act of contrition or a matter of conscience; and
(4) required to be confidential by religious law, doctrine, or tenet.
Borchert, the expert on religious practices in the room, said the only case he knew of that qualifies is the Catholic institution of confession.
The first prong is pretty broad. The second narrows it significantly, but could apply to just about any member of the clergy.
It’s the third and fourth that seem expressly written to say “Catholic Church” without actually saying “Catholic Church.”
I mean, “act of contrition” is practically the definition of Catholic confession. And according to Borchert, the Catholic Church is an outlier in its absolute protection of confession. Other Christian denominations have prioritized reporting child abuse over an individual’s expectations of confidentiality, even in private conversations with a member of the clergy.
The law as written, Borchert said, “normalizes as generic and general a practice that is actually specific to one form of religion.” And that, he continued, may “unintentionally create an establishment issue.”
That’s “establishment” as in Establishment Clause, part of the First Amendment that forbids the government from making any law “respecting an establishment of religion” and also prohibits government actions that unduly favor one religion over another.
Seems to me that our law, as it’s currently written, is a nice little gift to the Catholic Church and, hence, might just be unconstitutional.
The Church fathers — and yes, the witnesses were all men — would argue otherwise.
“Requiring clergy to report would infringe on our First Amendment rights,” argued Coyne, “and [those of] any other faith community that has that kind of penitential communication.”
OK, then, what other faith community “has that kind of penitential communication”? If you mean a sacrament involving a person confessing their sins in secret and receiving absolution, well, the Catholic Church is all alone on that. It’s as if Coyne had said the exemption applies to any religion whose infallible head resides in the Vatican.
The Catholic witnesses backstopped their defense of the exemption by insisting, over and over again, that the Church is absolutely, positively, really honestly truly committed to protecting children from abuse. The Church is committed to reporting child abuse in every situation besides confession, said Coyne.
That commitment was emphasized by Rev. John Paul Kimes, a law professor at Notre Dame University. “This crime is taken very seriously by the Catholic Church, and has been for more than 1200 years,” Kimes said.
Umm… uhh… First of all, the Catholic Church has been around a lot longer than 1200 years. What were they up to before then?
And second, I seem to remember some stuff happening within the last 1200 years. Like, say, an abundance of cases where the Catholic Church protected priests who abused children. Literally thousands of times.
I’m sorry, but the Church long ago squandered its moral capital on this issue. Its track record is of protecting priests over children and its image over the truth.
Coyne emphasized the special nature of confession. “Sacramental confession is an act of worship,” he said. “The person had to be truly penitent. …If they’re not penitent, they don’t receive absolution. It’s not a get out of jail free card. It’s a sacred rite in which the priest is the mediator between the person and God.”
Sounds good, but what he’s saying there is that a person capable of child abuse isn’t also capable of lying to a priest. Seems a bit of a stretch.
And even if they were completely truthful, the worst thing that can happen to them is denial of absolution. “Other than that, there would be no aid for the child,” said Senate President Pro Tem Phil Baruth, who sits on the Judiciary Committee. “The sacrament would in no way act to protect the child, who is the helpless one.”
After hearing from the five witnesses, the committee backed away from S.16. Judiciary Chair Dick Sears, who sponsored the bill, admitted that he didn’t know what to do with the bill. In the end he opted for the lawmaker’s number-one and number-two tactics for avoiding a tough decision: further study on how other states handle the priestly exception.
“Further study” is kicking the can down the road. “How other states do it” leads in only one direction: moderation (or, if you prefer, timidity). We won’t be a leader or pioneer on this issue, we’ll aim for the middle of the road.
Whether it protects children or not.