MONTPELIER (VT)
National Catholic Register - EWTN [Irondale AL]
January 13, 2023
By Tyler Arnold
According to the senator who plans to introduce the legislation, the proposal ‘tries to make clear there [will be] no confidentiality’ exception, regardless of the context in which the clergy member becomes aware of the information.
Legislation that would expand mandatory-reporting requirements for clergy and potentially pose a threat to the seal of confession could be introduced into the Vermont Senate within the next week or two.
Current Vermont law lists members of the clergy, such as priests, as mandatory reporters, which means they are required to report suspected child abuse or neglect within 24 hours of becoming aware of the information. However, the law provides an exemption for clergy if reporting that information would violate a privilege or disclose confidential communication, such as information learned during a confession.
Sen. Dick Sears, D-Bennington, plans to introduce a bill that would fully eliminate that exception. The bill has not yet been introduced, so there is no final language at this stage, but Sears told the Register that the proposal “tries to make clear there [will be] no confidentiality” exception, regardless of the context in which the clergy member becomes aware of the information.
The Code of Canon Law strictly prohibits priests from disclosing information obtained during a confession; and without an exception for the seal of confession, priests may be forced to choose between civil penalties, such as jail time, or canonical penalties, such as excommunication.
Sears acknowledged that he is aware of the canon-law provision that prohibits priests from disclosing any information learned in the confessional, but he said that many states do not have specific mandatory-reporting exemptions for clergy.
More than 30 states have explicit confidentiality protections that defend the seal of confession when it comes to mandatory reporting, either written into law or settled through court precedent. Although Louisiana does not have an exemption written into law, a 2016 state Supreme Court ruling determined that priests were not subject to mandatory-reporting requirements when the information was obtained during a confession. In most of the country, however, there is not much legal precedent on the subject.
Since 2002, there were efforts in about a dozen states to eliminate confidentiality protections between members of the clergy and penitents. This included attempts in Massachusetts, New Hampshire and California. Ultimately, all of those efforts failed. Alternatively, in Queensland, Australia, lawmakers successfully passed a law to jail priests if they do not disclose information related to the sexual abuse of a minor, even if heard during a confession.
He said he is willing to listen to the bill’s opponents when the legislation is taken up and look at the ways in which other states are handling that issue. The senator said he only recently realized that Vermont law provided an exception for clergy that was not provided to anyone else.
“This isn’t directed at any particular religion,” Sears added.
Under Vermont law, a person can be fined up to $500 for failing to report abuse and can face fines up to $1,000 and imprisonment up to six months if a court determines that the intent was to conceal the abuse or neglect. Although the senator did not reference sexual-abuse allegations in the Catholic Church, the Diocese of Burlington, which covers the entirety of Vermont, faced scrutiny in the early 2000s for its handling of past sexual-abuse allegations. In 2010, the diocese paid $17.6 million to former altar boys who filed lawsuits against the diocese related to sexual-abuse allegations.
Canon Law: Seal Is Inviolable
The seal of confession is the long-standing Catholic obligation that prohibits priests from disclosing any sin that is heard in confession for any reason, whether the sin is severe and in relation to grave matter or a smaller venial sin. The Fourth Council of the Lateran, which was decreed in 1215, states clearly that a priest cannot “by word or sign or by any manner whatever in any way betray the sinner” who confesses to him.
Canon 983 in the current Code of Canon Law is just as clear. The prohibition of disclosing information made during confession applies to the priest, to a translator and to any person who inadvertently hears the sin: “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”
The Diocese of Burlington declined to comment on the pending legislative proposal because the specific language has not yet been submitted.
“Since at this point the bill has not been put forward, we have no idea what is being proposed other than what has been stated in the media,” a diocesan representative told the Register. “Bishop [Christopher] Coyne wishes to wait until we know what is in the bill and then he will reach out to those involved and try [to] come to a mutual understanding of what is important for the Catholic community in Vermont.”
Father Daniel Jordan, who is one of the canon lawyers in the diocese, also told the Register that he could not comment on the specific proposal because he would need to wait to see how it is written and what it does. However, he said “the seal of confession is … very sacred” and that, regardless of civil laws and civil penalties, priests would be in violation of canon law if they disclosed information they learned during a confession.
When a priest offers a penitent absolution, Father Jordan explained, he is absolving under the power of the keys to the kingdom of heaven and the authority that “what you loose on earth is loosed in heaven,” which Christ conferred on the apostles. The priest is not simply acting under his own authority to forgive sins, but is rather fulfilling a role established for the priesthood by Christ.
If a priest breaks the seal of confession by directly disclosing information said during confession, Father Jordan said the priest would incur an excommunication latae sententiae (automatic). To have such an excommunication lifted, the priest would need to appeal to the Apostolic See. If a priest breaks the seal of confession by indirectly disclosing information, through certain statements or actions, he added that the priest would be subject to other grave penalties, but not necessarily excommunication.
“The consequences to the priest would be dire,” Father Jordan summarized.
Rather than violating the seal of confession, Father Jordan noted that a priest can urge a penitent to turn himself into the police when a crime has been committed or ask the penitent to speak with him outside of the confessional. However, a priest cannot withhold absolution from a penitent who refuses to turn himself in because absolution can only be withheld if the priest has reason to believe the penance is insincere. He said people should know that once absolution is granted, those sins are forgiven, but there can be temporal consequences to actions.
First Amendment Protections
The First Amendment of the U.S. Constitution explicitly protects five rights, one of them being the free exercise of religion. According to Eric Kniffin, a religious-liberty lawyer at Kniffin law, any attempt to coerce a priest into disclosing information obtained during a confession would be a free-exercise violation.
“While we have not yet seen the text of the bill, based on what we have heard, this proposal would put Vermont into [uncharted] waters,” Kniffin said. “Vermont legislators should think carefully before they attack the rights of Catholics in this manner.”
Kniffin told the Register that it would be unconstitutional to limit priest-penitent privilege but maintain attorney-client privilege. He said both privileges are deeply rooted in American law. If Vermont were to treat the right to confess to one’s lawyer differently than the right to confess to one’s priest, he said that would be a First Amendment violation.
Kniffin added that these proposals would likely be ineffective if they became laws because many confessions are anonymous, and none of the grand-jury reports over the past decade showed any instances in which confidentiality in the confessional prevented or delayed authorities in their investigations of abuse.
“Protecting children is, of course, a critical priority, but we don’t need to violate the fundamental rights of Vermont Catholics to do so,” Kniffin said. “I hope that Vermont will think better of this bill and will decide, like its neighboring states, that it can protect children while respecting religious exercise.”