SACRAMENTO, Calif. (ChurchMilitant.com) - A significantly amended bill that would tighten reporting mandates for priests with direct knowledge of child neglect or abuse passed the California Senate on May 31 but continues to raise First Amendment religious concerns about the confessional seal that ensures privacy between clergy and penitents.
As originally written, Senate Bill 360 (SB 360) required priests report child abuse or neglect to a law enforcement agency under threat of penalty even if the information was heard during the sacrament of reconciliation. However, as noted in Aletia: "Priests are already mandated reporters — required to report cases of sexual abuse that they suspect, unless they hear about it in the confessional."
SB 360 was amended to require priests report only on confessions given by other clergy members or work colleagues.
"The bill no longer requires priests to report knowledge or suspicion of child abuse from hearing the confession of any penitent," according to Aletia.
"Clergy are already mandated child abuse and neglect reporters in California, except if they learn of suspected abuse during a penitential communication," Hill wrote. California's list of 46 mandated reporters includes teachers, doctors and social workers.
"This bill would level the playing field by holding them to the same standard as every other mandated reporter," wrote Hill.
California gives clergy — priests, rabbis, ministers, religious practitioners, or similar functionaries of a church, temple, or recognized denomination or organization — an exemption not granted to any of the other 45 mandated reporters listed in statute. Even spousal privilege and doctor-patient privilege are nullified in cases of child abuse or neglect.
Hill quoted Antonin Scalia's majority decision in 1990's Employment Division, Oregon Department of Human Resources v. Smith in which the Supreme Court justice stated freedom to practice religion does not necessarily supersede following secular laws.
Likewise, Hill asserted, "A congregation can't refuse to pay taxes because it's against their beliefs; everyone is required to pay taxes, and congregations are not exempt."
He added, "Similarly, all mandated reporters in California are required to report suspected or observed child abuse or neglect, period. Faith institutions should not be exempt."
The bill prompted blowback from Catholic clergy and organizations who objected on the principle the confessional seal is inviolable. The California Catholic Conference remarked:
We are disappointed that the California State Senate today passed SB 360, a bill that will help no one yet has the potential to hurt everyone. While the California Catholic Conference shares the desire to combat the scourge of sexual abuse of minors and is committed to strengthening mandatory reporting requirements, interjecting the government into the confessional is not going to accomplish that objective and could undermine the guarantee of confidentiality all of us depend upon. The Senate Appropriations Committee inserted amendments that recognize the need to protect confession. Unfortunately, those changes left out protections for employees and members of the church. We will continue to work to protect confession for all as the bill moves to the State Assembly.
Even after the bill was amended and passed, Salvatore Cordileone, archbishop of San Francisco, expressed (here and here) his belief that it violates the First Amendment. "We're creating an alleged solution for a problem that doesn't exist," he told The Washington Times.
In a World interview, California Catholic Conference spokesman Steve Pehanich noted:
"[Confession is] a very specific, religious, and faith-filled experience that is between a penitent and the priest or spiritual adviser," he said. He added that forcing priests to break confidence "threatens everybody’s religious liberty. If [congregants] can't get counseling, if they're afraid to go for spiritual counseling, if they're afraid to go for reconciliation, they're going to have more difficulties in life."
Pehanich stated protections for the confessional seal have existed since the 10th century in England.
"Over the centuries, as recently as the last century ... priests have been martyred rather than violate the seal," he said.