Legal battle pits law against church

By Heidi R. Kinchen
Advocate
July 13, 2014

http://theadvocate.com/home/9706880-125/in-confidence

A legal battle over whether a Louisiana priest should have reported a teenager’s claims of sexual abuse by a parishioner is pitting state laws meant to protect children against the age-old secrecy surrounding religious confessions.

The case involves a woman who claims that in 2008, when she was 14, she told her pastor she was sexually abused by a now-deceased church parishioner, but that the priest, the Rev. Jeff Bayhi of Our Lady of the Assumption Catholic Church in Clinton, told her to “sweep it under the floor and get rid of it.”

Rebecca Mayeux — whom recent court rulings in the sealed case did not name but who identified herself as the alleged victim in a TV interview with WBRZ — has sued Bayhi and the Roman Catholic Diocese of Baton Rouge, arguing that the priest neglected his duty under state law to report the alleged abuse to the authorities.

The Baton Rouge Diocese has said Bayhi responded appropriately because the information came to him through confession, a sacrament that includes a seal of confidentiality no priest can break.

Whether that seal of confidentiality trumps a priest’s obligations as a mandatory reporter of suspected child abuse, and whether a priest could be compelled to testify about a topic of confession, are subjects of intense debate among experts in both state and church law.

Louisiana’s Children’s Code says members of the clergy, including priests, rabbis and other ordained ministers of faith, are mandatory reporters of suspected abuse. But the law provides an exception when the allegations of abuse are the subject of a confidential religious communication like confession.

The law also states, however, that “notwithstanding any claim of privileged communication, any mandatory reporter who has cause to believe that a child’s physical or mental health or welfare is endangered” must report that information to the proper authorities.

The Rev. Jim Wehner, rector-president of Notre Dame Seminary in New Orleans, said the seal of confession is not the priest’s to break, no matter what the circumstances.

When a priest receives confession, he is “making physical the person of Jesus Christ,” to whom the person is actually confessing, Wehner said. “The seal of confession is so sacred because it is between the individual and God.”

“The priest can never, ever reveal what was discussed in confession, even if the discussion involved threats against the priest himself, even if it involved threats against another individual,” he said.

That prohibition also applies in cases where the person confessing, called the penitent, later chooses to reveal what was discussed in confession, Wehner said. The priest is still obliged to remain silent.

“The penalty (for a priest breaking the seal of confession) is excommunication from the church, and only the pope can lift that,” Wehner said. “That’s how sacred the church understands the sacrament of penance.”

But a priest’s obligations under church law are a separate matter from his obligations under the laws of the state, said Dane Ciolino, an attorney and law professor at Loyola University in New Orleans.

“The clear language of the Children’s Code is that if it’s dealing with child abuse and the child is in danger, there is no privilege whatsoever,” Ciolino said. “Whether church law, or canon law as it’s called, might impose some religious obligation on the priest is irrelevant from a legal standpoint.”

Louisiana’s code of evidence indicates it is the penitent’s privilege of confidentiality, and therefore the penitent is the one who has the right to lift the veil of secrecy, Ciolino said. The priest does not hold that privilege and would have to respond to a subpoena or face a finding of contempt and possible fines or imprisonment.

The Rev. Bill Dailey, a lecturer at Notre Dame Law School and a priest at Holy Cross, said the notion that the priest-penitent privilege is owned wholly by the penitent represents a shift from the medieval understanding.

Under canon law, St. Thomas Aquinas’ argument that a person could permit a priest to speak about what had been discussed in confession represents a minority viewpoint, Dailey said.

“The predominant opinion actually goes against Aquinas and says it is so sacrosanct that any circumstance that would serve to diminish people’s willingness to go (to confession) would be prohibited,” Dailey said.

While it is true that a priest who refuses to testify even under subpoena could be fined or imprisoned, priests are called to care more about freeing souls than going to jail, Dailey said.

Appellate court rulings in the Bayhi case reflect a similar split of opinion on the issues of when a priest must report, or could be compelled to testify about, alleged abuse disclosed in confession.

The state 1st Circuit Court of Appeal resolved the apparent conflict in the Children’s Code by saying the priest’s status as a mandatory reporter is determined by the context in which he learns of the alleged abuse. If the information comes only during confession, the priest is not a mandatory reporter and is not required to contact authorities, it said.

The state Supreme Court disagreed and ruled that Mayeux could choose to waive the confidentiality of her confessions. The high court also found — without explaining its interpretation of the conflict in the Children’s Code — that members of the clergy are mandatory reporters with a duty to report abuse.

Ciolino said the Supreme Court could have stopped there but instead muddied the water by sending the case back to 19th Judicial District Court Judge Mike Caldwell 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 allegations.

“The court’s opinion seems to suggest that it matters whether the communication occurred during a Roman Catholic confession sacrament, but it’s still unclear as to why it matters and how it matters,” Ciolino said.

Records in the case have been sealed, except for the two appeals court opinions.

Those court opinions indicate that Mayeux alleges George J. Charlet Jr. began emailing her in 2008, when she was 14 and he was 64. The emails quickly increased in frequency and became “laced with seductive nuances.”

Mayeux contends Charlet, who died in February 2009, ultimately kissed and fondled her. Mayeux said she sought spiritual guidance from Bayhi on the matter on three occasions and was told, “This is your problem. Sweep it under the floor and get rid of it.”

The court opinion also indicates that Bayhi met with the Charlet family, and the Charlet family separately met with the teenager’s parents. Both meetings concerned “the ‘obsessive number of emails and phone calls’ between Mr. Charlet and the minor child and the seemingly inappropriate closeness between the two that had been observed by various parishioners.”

What exactly Bayhi knew about the situation, independently of Mayeux’s confessions, is not clear from the available records.

Wehner said if a priest learns of a situation such as abuse outside of the confessional, he can act on that independent information as he deems appropriate, as long as he never reveals or implies that it was once a subject of someone’s confession.

That can be a difficult balance to strike, Wehner said.

“These are the types of things we talk about (at seminary) so that when a priest is ordained, he has a very clear understanding of the sacrament of penance,” Wehner said.

Each diocese also has someone on staff who is responsible for ensuring that priests, as well as anyone else engaged in ministry, particularly with minors, receives periodic training in what is required of them concerning the mandatory reporter laws, he said.

The Children’s Code is clear in requiring that, even in cases of confidential religious communications, the clergy member must encourage the penitent to contact the appropriate authorities in cases of suspected abuse.

Dailey said that instruction is striking, considering it represents the state dictating what should be said within the context of a religious sacrament.

“I’m not sure I find it objectionable. I can’t imagine that I wouldn’t encourage that,” he said. “But as a general matter, I wouldn’t look to state law to tell me what to do in confessional.”

Mayeux’s attorney, Brian Abels, has said it is not their aim to make Bayhi testify. Instead, he argues, the issue has always been about the girl’s testimony.

But because Mayeux has sued Bayhi for his failure to report alleged abuse — potentially a crime carrying a penalty of up to six months in jail and $500 in fines — Bayhi faces the possibility of being forced to choose between his faith and his freedom.

Either he must silently accept Mayeux’s claims about what she says she disclosed to him in confession and what he said in response, or he must break the seal of confession to defend himself.

Jim Boren, a Baton Rouge criminal defense attorney, said he is not familiar with any cases in which a priest was required to testify after a penitent waived confidentiality.

Boren noted, however, that even if a court ruled that the priest must testify, he could potentially fall back on his right against self-incrimination.

“Whether the case is civil or criminal doesn’t matter. You can’t be compelled to give evidence against yourself,” Boren said.

David Clohessy, executive director of the Survivors Network of Those Abused by Priests, said priests should not be shocked if courts are increasingly unwilling to recognize a privilege that allows the church to potentially mask abuse.

While acknowledging that this case is not one of priest-perpetrated abuse, Clohessy said, “I’m certainly glad this is being publicly discussed and debated, because obviously freedom of religion is important but so too is the safety of innocent and vulnerable boys and girls.”

Follow Heidi R. Kinchen on Twitter, @HeidiRKinchen.

Editor’s Note: This story was corrected on July 13, 2014, at 12:30 p.m. to make clear a conversation the Charlet family had with the priest and the child in this case. The Rev. Jeff Bayhi did not meet with the teen’s family.