The clergy-penitent privilege has been recognized in American law for more than two hundred years and is now widely enshrined in law across the country. In a recent article in Law and Psychology Review, however, my law school colleague Amos Guiora and co-authors Diana Pogosyan and Matylda J. Blaszczak argue for carving out a significant exception to the privilege. Their article—“Sacred Secrets Enabling Child Sex Abuse”—claims that the privilege “enables” child sexual abuse by allowing clergy to “turn[] a blind eye” to abuse disclosed in a confession. They propose that, to protect children, clergy should be compelled by threat of criminal punishment to immediately call the police whenever a parishioner confesses child sexual abuse, even if doing so violates sincerely held religious belief.
In my response article in the same journal, I take on Sacred Secrets’ arguments and defend the privilege. I argue that the privilege should apply in all cases—including those involving child sexual abuse. From my article’s introduction:
Sacred Secrets fails to make a persuasive case for its extreme position. Its argument focuses on situations where an abuser has confessed to clergy under the protection of the privilege. But the article neglects to consider whether the abuser would have confessed without the privilege. As this article explains, victims will suffer more if the privilege does not exist. Metaphorically, child sexual abuse occurs in a room behind closed doors— with doors that open only from the inside. Abuse can only come to light if the victim or the perpetrator opens those doors and lets someone else in, whether it be a parent, teacher, peer, policeman—or member of the clergy. Because of age, fear, or the perpetrator’s manipulation, many victims are unable to open the doors for themselves. But occasionally a perpetrator opens the doors to confess to his pastor. Sacred Secrets argues that, in such situations, the clergy-penitent privilege should be abolished and the pastor required by law to immediately call the police. But this conclusion begs the question: If the privilege were abolished, why would a perpetrator ever open the doors and confess in the first place? Sacred Secrets’ fundamental flaw is its failure to seriously consider that obvious competing concern about its recommendations. Common sense, lived experience, and the available empirical evidence all show that perpetrators will not typically voluntarily confess to a mandatory reporter. Changing the law to conscript clergy listening to confessions into the ranks of mandatory reporters will not serve to bring abuse to light; instead, it will further incentivize concealment.
On the other hand, protecting the clergy-penitent privilege incentivizes disclosure and creates the opportunity for valuable interventions. Clergy can help perpetrators to see the enormous harm from their crimes on their victims, to accept responsibility, and to make changes that will protect children. Clergy can urge perpetrators to self-report, or to notify others (such as a spouse) who can protect victims from further abuse. Notably, clergy can capitalize on the disclosures for the same reason abusers came forward to their pastor in the first place—the abusers feel guilty and want to stop their sinful behavior. To be sure, recognizing the privilege may be a frustratingly imperfect response to disclosures of child abuse. But the decisive point is that this imperfect response is better than the blunderbuss alternative Sacred Secrets proposes—an alternative that is, in any event, likely unconstitutional under the First Amendment’s Free Exercise Clause and related doctrines. Thus, the current privilege regime found across this country is the true “victim-centric” approach.
One of the problems in Sacred Secrets is that it fail to situate its arguments in the discussion about privileges more broadly. Privileges exist because the law has long recognized the benefits of certain relationships—e.g., attorney-client, psychotherapist-patient, doctor-patient, and clergy-penitent. But confidentiality is important to obtain those benefits. As the United States Supreme Court has explained in Trammel v. United States, 445 U.S. 40 (1980), such privileges “are rooted in the imperative need for confidence and trust”:
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. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment.
Curiously, Sacred Secrets makes no effort to engage with this rationale by weighing the costs and benefits of the clergy-penitent privilege. Instead, the article launches allegations that a church invoking the privilege in a child sexual abuse content is “enabling” that abuse. If Sacred Secrets want to trace out the implications of its position within a well-developed body of privilege law, it should have also asked, for example, whether a defense attorney “enables” criminals by invoking the privilege rather than telling police that a client has confessed. Or whether a mental health counselor “enables” an abusive husband by invoking the psychotherapist-patient privilege. The answer is clearly no. Generally, such client confessions occur only because of the assurance of confidentiality. If the clergy-penitent privilege is somehow unique, Sacred Secrets fails to explain why.
You can read my article here. Notably, whatever one thinks of the back-and-forth policy arguments in our two articles, Sacred Secrets’ proposal for abolishing the clergy-penitent privilege is almost surely unconstitutional. Last year, a federal district court in Washington state effectively struck down a Washington state statute that would have breached the privilege in child sexual abuse cases—a statute essentially identical to recommendations contained in Sacred Secrets. Thus, my position is not only sound public policy but also required by the First Amendment.
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