Seal of confession on the court docket

Can the content of a confession be revealed in court? Must a priest report to police information about the abuse of a minor that he hears in confession? Can a priest reveal what he was told in confession if the penitent gives him permission?

These issues are being debated because of a court case involving the diocese of Baton Rouge, La.

The case involves the 2008 confession of a then-14-year-old girl, Rebecca Mayeux. She says she told Fr. Jeff Bayhi, pastor of St. John the Baptist Church in Zachary, La., on three different occasions that she was kissed and fondled by a now-dead lay member of the parish.

According to the Times-Picayune, the parents of the minor say the priest in the confessional told the girl to deal with it herself because "too many people would be hurt." The girl said, "He just said, 'This is your problem. Sweep it under the floor.' "

Her parents are now suing the priest and the diocese for not reporting the allegation to the police. According to The Advocate, the woman "testified in a deposition that she did not understand the nature of the sacrament of confession and did not intend for Bayhi to keep what she told him a secret." 

The diocese argued that the woman should not be allowed to testify about her confession in court because it would put the priest in the legally untenable position of having to accept her version of events or break the seal and face automatic excommunication.

So far, the courts have gone back and forth on the issue.

The parents won in District Court only to see the decision reversed by the Louisiana Circuit Court of Appeals, which said a priest is a mandatory reporter only on matters learned outside of confession. The testimony about what happened in confession would therefore be irrelevant.

The state's highest court overruled the Count of Appeals and said the woman could testify and that it would be up to the District Court to determine "whether the communications between the child and the priest were confessions per se and whether the priest obtained knowledge outside the confessional that would trigger his duty to report."

The diocese appealed to the U.S. Supreme Court, which declined to hear the case. This means the case is back in District Court.

Thus, under Louisiana law, it appears a priest does not have to report what he learns in confession about the sexual abuse of a minor, but he does have to report what he learns outside confession. It is now up to the District Court to determine whether the communications were confessions. This could be a problem because the priest clearly believes that they were confessions and that he cannot talk about them.

The diocese also argues that the court should not be deciding theological issues such as whether or not a communication was a sacramental confession.

"This matter cuts to the core of the Catholic faith, and for a civil court to inquire as to whether or not a factual situation establishes the sacrament of confession is a clear and unfettered violation of the Establishment Clause of the Constitution of the United States," it argued.

In response, the plaintiff says the court will be interpreting Louisiana law, not the Catholic faith.

Can the priest testify about the confession if the penitent gives her permission?

Although cases are rare, this is not the first time the issue has come up. In a 52-page article in 1994 volume of The Jurist, Fr. Dexter Brewer examines the question in detail. My analysis is heavily dependent on his article.

First, let's look at state law.

The rules of evidence in state courts are set by state law. Almost all states have some provision regarding the seal of confession, but most describe it as a right of the penitent, not the priest. If the penitent waives his or her right, the priest must testify. This is similar to the rules for lawyers about revealing something told to them by their clients. A few states also give the priest the right to refuse to testify even if the penitent releases him, but these are the exception.

The diocese is arguing that the priest has a First Amendment right to refuse to testify, but this issue has never been ruled on by the courts.

"A foundational doctrine of the Roman Catholic Church for thousands of years mandates that the seal of confession is absolute and inviolable. Pursuant to his oath to the church, a priest is compelled never to break that seal," Catholic News Service reports the diocese saying. "Neither is a priest allowed to admit that someone went to confession to him. If necessary, the priest would have to suffer a finding of contempt in a civil court and suffer imprisonment rather than violate his sacred duty and violate the seal of confession and his duty to the penitent."

Needless to say, such conflicts between penitents and confessors do not come up frequently. However, in 1983, a priest was found in contempt of court in Massachusetts for not testifying after being released by a penitent. He was assessed a nominal fine and released. The absence of his testimony appeared to make no difference in the case because when the case was appealed, neither party raised the issue.

Let's set aside for a moment civil law and look at church law. Is the diocese correct in saying, "Church law does not allow either the plaintiff [the penitent] or anyone else to waive the seal of confession."

I am afraid that it is a little more complicated than that.

In describing the seal of confession, Canon 983 of the 1983 Code of Canon Law states, "The sacramental seal is inviolable; therefore, it is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason."

The 1983 code (and its 1917 predecessor) says nothing about whether a penitent can release a priest from the seal of confession. When the code is silent, canonists look to see what scholars and commentators have said.

After a thorough review of the literature, Father Brewer concluded: "While a few theologians and canonists would maintain the penitent cannot release the confessor from the obligation of the seal of confession, the weight of theological and canonical opinion holds that the penitent can release the confessor."

This consensus goes all the way back to the 13th century after the Fourth Lateran Council forbade the breaking of the seal of confession in 1215. Almost immediately after the council, theologians and canonists raised questions about the ability of penitents to waive this right. They concluded that penitents could waive their right to privacy, and canon law never contradicted this position. 

The wording of Canon 983 supports this view by using the phrase "betray a penitent"; a penitent would not be betrayed if he or she gave permission to the priest to speak.

The minority view argues that the seal of confession is not just for the penitent, but also for the community, and therefore the penitent on his or her own cannot waive it. Scandal could also occur if people misunderstand and think the seal has been broken. There is also the danger that the penitent could be coerced into granting permission. And what will a jury conclude if a prosecutor draws attention to the fact that a defendant has refused to release the confessor to speak? In some states this is allowed, while in others prosecutors cannot do this.

Despite all these problems, the weight of theological and canonical opinion supports the right of penitents to allow their confessor to reveal what they told him in confession.

But does that mean that a priest must comply? No. Under canon law, he cannot be compelled to reveal what was said even if the penitent permits it. He may in conscience believe the consensus is wrong and the minority view is right. Or he may believe that in a particular case, the penitent is being coerced or that there is a danger of scandal.

In any case, the Baton Rouge penitent is now an adult and has clearly waived her right of secrecy. The preponderance of theological and canonical opinion says she can do this and the priest would not be breaking the seal if he testified, but he cannot be compelled to testify. State law says she can waive her right to secrecy and that the priest can be compelled to testify.

How will all of this play out in court? Here are some possible scenarios:

• Father Bayhi may be called to testify and then refuse to testify on the grounds that his First Amendment rights trump state law. If he refuses and is found in contempt, this case may once again work its way all the way up to the U.S. Supreme Court.
• The Mayeux family's lawyer may ultimately decide not to call the priest and instead let the court rely solely on the testimony of Rebecca Mayeux. Why compel a reluctant witness to testify if he might say things that would hurt your case or might tie you up in expensive constitutional litigation for years to come?
• The diocese may change its mind and, following the canonical consensus, allow Father Bayhi to testify.
• Or the diocese may settle the case out of court before the priest testifies. 

Any of these outcomes is possible.

Besides the legal issues, there is also a pastoral issue. We only know Miss Mayeux's version of the events, but if the confessor truly told the child to "sweep it under the floor," then the priest failed in his duty to the child and the church. He should have encouraged the child to tell the police or to talk to her parents, a teacher, a counselor, or someone who could report it to the police. Or he could have suggested that she give him the same information outside of the confessional, which would have allowed him to report it.

This points to a much more common problem in the church: bad confessors who demean and harangue penitents rather than convey to them the compassion, forgiveness, and love of God. Catholics should not have to play Russian roulette when approaching the confessional. But here again the church faces an impossible dilemma: How can it supervise the work of confessors without knowing what is said in confession? 

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org. Follow him on Twitter: @ThomasReeseSJ.]

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