Pope Francis recently changed the Catholic Church law, making it mandatory for clergy to report sexual abuse to church superiors. In the past, such reporting was left to the discretion of a priest or nun.
Pope Francis’ proposal is an effort to address gaps in the regulatory process of the church, which has been accused of shielding clergy sexual abuse. It provides a process to report allegations up the pipeline.
As a scholar of law I worry that it fails to address what the church will do with that information.
To date, religious organizations, such as the Catholic Church, have adopted inconsistent positions on whether, and to what degree, they should share information necessary for legal action.
Clergy across various religions, ranging from Christians to Catholics to Muslims to Jews, are willing to share evidence in cases of violent crimes, such as murders. But when the evidence pertains to clergy misconduct, namely sexual abuse, the tide changes.
Clergy privilege plays a key role in what information is shared.
What is clergy privilege?
Every state in the U.S. recognizes a clergy privilege, which shields clergy from forced disclosure of confidential spiritual communications. This protection extends to confessions but also to conversations that provide solace, comfort and aid.
Often, courts rely on clergy to decide whether the requirements of the privilege apply in a given case. In my research, I reviewed more than 700 judicial decisions addressing clergy privilege in a variety of cases, ranging from murder to sexual abuse.
These decisions show how clerics decide to testify on a case-by-case basis. In doing so, they share confidences that are protected under broad clergy privilege statutes.
Particularly in cases involving violent crimes, clergy often apply their own narrow definitions of what is privileged. In State v. Cartmell, for example, a chaplain testified about a communication with the defendant in a murder case.
According to the defendant, he and the chaplain were praying together during this communication, which could be viewed as a spiritual activity covered under the clergy privilege statute. It was during this time that the defendant allegedly confessed to the murder.
The chaplain contended before the court that the confession was not spiritual and thus not covered by clergy privilege. He said the defendant was only “trying to make peace, sense of what had happened.”
In another such case, Morales v. Portuondo, a Catholic priest received a murder confession. The murderer was not convicted. Rather, two others were sentenced. The priest struggled for years over whether to break the seal of confession. With the assistance of officials at the diocese, he opted to disclose.