Jeffery Warren Scott was a doctoral candidate in religion at Baylor University in Texas when he wrote this article.

Child abuse is a serious problem in the United States. One million children are abused each year, and more than 2,000 die as the result.1 Every state has enacted mandatory reporting laws to help prevent the tragedy of abuse. Some 35 of these statutes require that clergy disclose confessions of child abuse or suffer criminal or civil penalties.

Should the state have the right to inject itself into the sacrament of confession or the ministry of spiritual counseling? When I finish work on my Ph. D. in religion, I may have to face what now is merely an academic question to me. Based on my Christian convictions and my research into the legal issues, how ever, I believe I know what my answer will be: I will refuse to disclose information revealed to me by a penitent.

Let me share the basis for this decision.

The constitutional argument

Mandatory reporting laws that force clergy to disclose confidential information violate the free exercise clause of the First Amendment. In Wisconsin v. Yoder (406 U.S. 205, 1972), the Supreme Court advanced a threefold test by which to evaluate whether the state infringes free exercise of religion.

First, is a practice motivated by a legitimate and sincerely held religious belief? The answer must.be yes in respect to confession and spiritual counseling- As early as A.D. 554 severe punishment was ad ministered to priests disclosing confessions.2 By the close of the ninth century, priests revealing the substance of a confession were deposed and even exiled for life. 3 In the Catholic tradition confession is a sacrament that conveys grace to the participant. In other Christian traditions spiritual counseling is an integral part of their ministry. Clearly, the practice of the church meets the first test of Wisconsin v. Yoder.

Second, does the state's action affect the church's religious practice? The mandatory child abuse reporting statutes do so. If a clergyman may be forced to reveal a confession of child abuse, church members may well refrain from seeking counsel. Said the archbishop of Reims in the ninth century: "There is nobody who would not hesitate to utter his sins to his prelate if he feared that he would be shamed or exposed." 4 Surely, today as well, congregants will discontinue disclosing what must by law be re ported to the state.

If, as in the Catholic tradition, confession is a sacrament that conveys grace, the state's requirement may be construed as affecting the individual's very salvation. State intrusion into the confessional therefore affects both whether a church member participates in confession or counseling and how freely he participates.

Third, does the state have a compelling interest in restricting the religious practice in question, or can the state's interest be accommodated in a less traumatic manner? I concede that the state has a legitimate interest in the. welfare of children. Is that interest so compelling that it overrides the free exercise rights of the church? I believe not. Mandatory re porting laws, which force the minister to violate his sacred and moral commitment to confidentiality, are not the least restrictive means to achieve the state's ends.

Other sources of information on the abuse of children can be tapped without violating privileged communications. Teachers, day-care operators, and film developers are even better sources than the clergy. 5 And no constitutional right to silence envelops them. Mandatory re porting laws, therefore, do not meet the third test of Wisconsin v. Yoder.

The slippery slope argument

To force clergy to reveal confidential information opens the doors of the church to even greater state abuse. If the state can violate the ministry of confession on behalf of abused children, can it not do so also on behalf of abused elderly parents and victims of rape and other crimes? Once the sanctity of the confessional is breached for one reason, it be comes easier to violate it repeatedly for many reasons.6 Abolition of professional secrecy was the first step taken by the Nazis in World War II, when they sought control of the church in Norway.7 The state must not be allowed to enter the most private area of human life by the confessional.

The value to society argument

The third reason for maintaining the clergy-penitent privilege is because of that relationship's value to society, which has set aside a number of relation ships in which confidential communications are privileged. Communications between attorney and client and be tween husband and wife are two examples of such protection.

One function of religion is to help people handle guilt, anxiety, and fears. An other is to find ultimate meaning to life.8 The church approaches these responsibilities not only through preaching but through confession and spiritual counseling. Society benefits from a citizenry that is well adjusted, free from guilt, able to control fears and anxieties, and is finding purpose in existence. Mandatory reporting laws destroy the therapeutic relation ship.

In fact, they may worsen abuse of a child in a case where the parent feels betrayed by his clergy confidant and vents his hostility on his child.

Conclusion

Mandatory reporting laws impinge on an important function of the church and, in so doing, compromise freedom of religious practice. They are in violation of the free exercise clause of the First Amendment, open the way to even more egregious interference in church affairs, and destroy relationships society regards as vital to its well-being.

Confidentiality in the clergy-penitent relationship enjoys a long tradition in both history and law. Its continuance is necessary if the church is to fulfill its sacred and moral functions in confession and spiritual guidance. Therefore, mandatory reporting laws should be repealed!

If they are not, clergy should refuse to compromise their sacred and moral trust.

1 Antoinette M. Pollock, "Recent Amendments
to the Texas Child Abuse Statutes: An
Analysis and Recommendation," St. Mary's Law
Journal 11 (1980): 914-940.

2 William Harold Tiemann and John C. Bush,
The Right to Silence: Privileged Clergy Communication
and the Law (Nashville: Abingdon Press,
1983), p. 35.

3 Ibid.,p. 36.

4 John T. McNeill and Helena M. Gamer, Medieval
Handbooks of Penance (New York: Columbia
University Press, 1938), p. 409.

5 Susan A. Collier, "Reporting Child Abuse:
When Moral Obligations Fail," Pacific Law Journal
(October 1983): 182, 183.

6 Alfred A. Cramer, "Go Tell the People? The
Ethics of Pastoral Confidentiality," Pastoral
Psychology 17 (March 1966): 33.

7 New York Times, Jan. 6, 1941, p. 3.

8 Dean Kelley, "Tell All or Go to Jail: The
Dilemma of the Clergy," Christian Century, Jan.
30, 1974, p. 98.

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Jeffery Warren Scott was a doctoral candidate in religion at Baylor University in Texas when he wrote this article.

January 1989

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