Breaking the Seal of Confession: Examining the Constitutionality of the Clergy-Penitent Privilege in Mandatory Reporting Law

Author:Caroline Donze
Position:J.D./D.C.L., 2018, Paul M. Hebert Law Center, Louisiana State University.
Pages:267-310
 
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Breaking the Seal of Confession: Examining the
Constitutionality of the Clergy-Penitent Privilege in
Mandatory Reporting Law
TABLE OF CONTENTS
Introduction .................................................................................. 268
I. Tracing the History of the Clergy-Penitent Privilege ................... 271
A. A Privileged Society: The Benefits of Holding Certain
Disclosures Sacrosanct .......................................................... 271
B. A Catholic Sacrament Forms the Basis for the
Clergy-Penitent Privilege ....................................................... 273
C. The Clergy-Penitent Privilege in Jurisprudence
and Statutory Law .................................................................. 275
1. People v. Philips: Validating the Seal of Confession
in a Court of Law ............................................................ 275
2. Codification of the Clergy-Penitent Privilege .................... 277
3. The Supreme Court Validates the Clergy-Penitent
Privilege, if Only in Dicta ............................................... 279
II. Church and State Collide: Mandatory Reporting Legislation
and the Clergy .............................................................................. 279
A. The States Take an Active Role in Policing
Child Abuse ........................................................................... 280
1. Clergy as Mandatory Reporters: The Balancing Act of
Satisfying Public Policy and Religious Freedom ..... 280
2. States Abrogating the Clergy-Penitent Privilege
for Suspected Child Abuse ........................................ 282
3. A Code in Conflict: Mandatory Reporting Law
in Louisiana .............................................................. 284
III. A Privilege Steeped in First Amendment Issues .......................... 285
A. Abrogation of the Clergy-Penitent Privilege:
A Permissible Infringement on Free Exercise ....................... 286
1. Employment Division v. Smith: Illustrating the
Limits of Free Exercise Claims ....................................... 287
2. The States Push Back Against Smith: A Revival of the
Sherbert Test ................................................................... 289
3. Applying the Compelling State Interest Test to an
Unconditional Mandate for Clergy to Report Child
Abuse............................................................................... 290
268 LOUISIANA LAW REVIEW [Vol. 78
a. Compelling State Interest ......................................... 290
b. Least Restrictive Means/Narrow Tailoring ................. 292
B. Establishment Clause Issues: Favoring the Catholic Church
over All Other Religions ........................................................ 294
1. Town of Greece v. Galloway: An Unbiased Treatment of
Religion ........................................................................... 295
2. Applying Galloway to Mandatory Reporting Law.......... 296
3. Resolving Establishment Clause Issues .......................... 297
IV. Mayeux v. Charlet: Illuminating the Deficiencies of Confessional
Carve-outs .................................................................................... 297
A. A Dark Secret Revealed in the Confessional ......................... 298
B. Procedural History: The Long and Winding Road to Trial ... 300
C. Char let Brings out the Dark Side of the Confessional
Privilege ................................................................................. 303
D. The Dilemma of Forcing a Catholic Priest to
Reveal a Private Confession .................................................. 304
E. Carrying out Compelling State Interests While Maintaining
Sacramental Integrity ............................................................. 306
1. Penitent Waiver of the Clergy-Penitent Privilege ........... 306
2. Institutional Changes Within the Priesthood
to Encourage Reporting of Abuse ................................... 308
Conclusion .................................................................................... 310
INTRODUCTION
Every Sunday Catholics across the globe gather together in their parish
churches to celebrate Mass. For many parishioners, this is a time for prayer,
reflection, and community. For a teenage girl in Clinton, Louisiana, however,
attending Mass became a living nightmare. Sitting in a pew nearby was the
man who allegedly had been sexually harassing and abusing her for an entire
summer.1 Sitting next to her were her unsuspecting parents, whom she feared
to tell about the abuse.2 Standing on the altar was the priest to whom she
had confessed the alleged series of abusive acts.3 The purported
relationship between the girl and her abuser started innocently enough; she
claimed that the man would send her emails regularly with inspirational
religious verses. Harmless electronic communication reportedly escalated
Copyright 2017, by CAROLINE DONZE.
1. Parents of Minor C hild v. Charlet, 135 So. 3d 1177, 1178 (La. 2014).
2. Id. at 117879.
3. Id.
2017] COMMENT 269
to grossly inappropriate physical contact, including kissing and groping,
and the man expressing his desire to have sexual intercourse with her.4
The girl communicated to her priest everything the man allegedly did to
her. She may have expected that the leader of the tight-knit church community
would help her achieve the goal she could not accomplish alone: confronting
her parents and abuser and revealing the secrets she had bottled up for so long.
But instead of receiving support and guidance from the priest, he reportedly told
her to deal with the problem herself and refrain from exposing the crimes to
avoid ruining the lives and reputations of her family and abuser.5
The girl’s parents eventually realized their daughter’s secret, but by then
the damage was done. The priest’s failure to report the information supposedly
learned in the confessional reportedly allowed the abuse to continue and
escalate when a simple phone call to mom, dad, or the police would have ended
the nightmare quickly.6 Had the girl confessed to a school teacher or soccer
coach, Louisiana law would have required immediate reporting of the suspected
abuse to law enforcement.7 A teacher or coach would have had to report the
abuse at once because Louisiana has designated teachers and coaches as
mandatory reportersprofessionals required by law to report allegations or
suspicions of child abuse immediately to the authorities.8 This girl made her
confession to a Catholic priest during a religious sacrament, however.9 Priests
are also mandatory reporters of child abuse in Louisianasubject to one major
exception.10 Louisiana, like many other states in this country, exempts clergy
from their ordinary mandate to report if they learn of ongoing or imminent
abuse within the context of a confidential religious communication.11 This
exception stems from the clergy-penitent privilege, which prohibits
compelled disclosure of the contents of private communications between
clergy and their communicants in a judicial proceeding.12
4. Parents of Minor Child v. Charlet, 135 So. 3d 724, 726 (La. Ct. App. 2013).
5. Id.
6. Id. at 72627.
7. LA. CHILD. CODE arts. 603 , 609(A)(2) (2017).
8. Id. arts. 603, 60910.
9. Cha rlet, 135 So. 3d at 1178.
10. LA. CHILD. CODE art. 603(17)(c).
11. Id.; CHILDRENS BUREAU, U.S. DEPT OF HEALTH AND HUMAN SERVS.,
CLERGY AS MANDATORY REPORTERS OF CHILD ABUSE AND NEGLECT (2016),
https://www.childwelfare.gov/pubPDFs/clergymandated.pdf [https://perma.cc/NG
3B-3JY5].
12. Samuel G. Brooks, Confession and Mandator y Child Abuse Reporting: A
New Take on the Constitutionality of Abr ogating the P riest-Penitent Privilege, 24
BYU J. PUB. L. 117, 120 (2009).

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