BATON ROUGE, La. — Father Jeff Bayhi, a priest of the Diocese of Baton Rouge in Louisiana, is adamant that he would never testify, if asked on the witness stand in a courtroom, about what someone may or may not have told him in the confessional.
“People of all faiths would be affected if the seal of confession were to be compromised. People of all faiths should be concerned about the outcome,” Father Bayhi told the Register in an interview a few days after a Louisiana state judge said a state law could not be used to force him to break the seal of confession in an upcoming civil trial.
“We’re always happy when the court upholds religious liberties, but we’re not out of the woods yet,” Father Bayhi said.
The judge’s Feb. 26 ruling also means that attorneys for the plaintiff cannot tell the jury that Father Bayhi was a mandated reporter when the plaintiff allegedly told him in the confessional in July 2008 that an older male parishioner, who has since died, sexually abused her when she was a teenager.
However, the plaintiff can still testify about what she supposedly told the priest in the confessional, which will put Father Bayhi in a tough spot, since he would not be able to respond to anything she says concerning the alleged confession.
“I’ll be in the position of sitting there and saying, ‘I can’t answer that. Sorry, I can’t answer that,’” Father Bayhi said. “It makes for a very difficult situation for me.”
“He is also in an impossible situation now if she can testify to her version of what happened, and he cannot testify to his. That frees her up to say absolutely anything, true or false,” said Douglas Laycock, a University of Virginia School of Law professor, who is a leading authority on religious-liberty legal issues.
Father Bayhi’s case raised serious religious-liberty concerns, especially when the Louisiana Supreme Court, in July 2014, ordered the 19th Judicial District Court in Baton Rouge to hold a hearing to determine whether the plaintiff told Father Bayhi about the alleged sexual abuse in a sacramental confession “per se.”
That a civil court would be tasked with judging what is and what is not a valid sacramental confession in the Catholic Church set off alarm bells and prompted Father Bayhi’s attorneys to immediately petition the U.S. Supreme Court.
“We obviously had serious problems with that. The mere fact of holding a hearing by a civil court to tell us, as the Catholic Church and a Catholic priest, what is or is not a confession: It flies in the face of all kinds of constitutional provisions,” said Donald Richard, an attorney who represents Father Bayhi.
The U.S. Supreme Court declined to hear the case, but Father Bayhi’s attorneys successfully argued that a provision in the Louisiana Children’s Code was unconstitutional as applied in Father Bayhi’s case.
The Louisiana Children’s Code has two conflicting provisions. The code says members of the clergy, including priests, rabbis and other ordained ministers of faith, are mandated reporters of suspected child abuse. The law provides an exemption when allegations of abuse are revealed during a confidential religious setting like confession.
However, the code — specifically in Article 609 A(1) — also says 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.
Striking a Balance
The states have sought to balance the interest to compel reporting of certain crimes, especially child abuse, with safeguarding privacy rights. In most states, the clergy-penitent relationship, in the form of private counseling or sacramental confession, also known as “sacred communications,” carries a similar privacy privilege granted between spouses, attorneys and clients, as well as physicians and counselors with their patients.
While adding that mandated-reporter laws are “quite common,” Laycock said priests have told him that they simply will not comply with requests to reveal what is told to them in confession.
“There has been remarkably little litigation,” Laycock said. “I’m not sure why, but my guess is that the cases never come to light. And maybe there aren’t very many in the first place.”
“I have no idea how many sex offenders tell a priest about it in confession,” Laycock said. “But if and when it happens, the priest is religiously obligated to tell no one, and the offender is highly motivated to tell no one else. So no one ever knows that the priest has information, and no one tries to force him to testify. That’s my best guess as to why there are so few cases.”
Laycock added that he believes the state courts would split over the constitutionality of the mandated-reporter laws.
“Their greatest vulnerability is that many of them, including Louisiana, preserve the attorney-client privilege but not the priest-penitent privilege,” Laycock said. “That matters to the federal Constitution, which the Supreme Court interprets to protect the free exercise of religion from discrimination.”
Richard said he stipulated to the Louisiana courts that Father Bayhi, if told about alleged sexual abuse in any setting outside the confessional, would be required as a mandated reporter to notify law enforcement.
“We never denied that,” Richard said. “But anything that happens in that confessional box, that confessional room, or wherever that confession occurs, from the time the confession starts to when it ends, it’s under the seal of confession, and the priest can never say to anyone who went to confession by him.”
The plaintiff, Rebecca Mayeux, sued Father Bayhi and the Diocese of Baton Rouge in 2009. She alleges that she was 14 in 2008 when she told Father Bayhi, as pastor of Our Lady of the Assumption Catholic Church in Clinton, during a confession that a 64-year-old parishioner was sexually abusing her.
Mayeaux alleges that Father Bayhi told her to “sweep it under the floor and get rid of it.” The lawsuit argues that the priest gave her bad advice and failed to comply with Louisiana’s mandated-reporter laws by not notifying authorities about what she told him in the confessional.
Attorneys for the diocese and Father Bayhi moved to suppress Mayeux from testifying about what she supposedly said during the confession, on grounds that the testimony would be heavily prejudicial to Father Bayhi.
“We still think that’s a problem,” Richard said.
The district court denied that request, prompting an appeal. The state appellate court sided with the diocese and dismissed the lawsuit on the grounds that the girl’s confession was “clearly” made during the sacrament of reconciliation and was thus confidential.
However, the Louisiana Supreme Court reversed that ruling by taking the position that the confession was not a “privileged communication” because the penitent waived her right to privacy. The high court said the girl’s lawyer could present evidence about the alleged confessions at trial and directed the district court to convene a hearing about whether the girl’s statements were made during sacramental confession.
‘Absolutely Wrong’ Under Canon Law
During the court hearing on Feb. 26, Richard called Father Bayhi and Father Paul Counce, a canon lawyer with the Diocese of Baton Rouge, to testify that breaking the seal of confession was a serious sin that carries the automatic penalty of excommunication.
“One of things we proved with our two witnesses is that this is a serious matter, which goes right to the heart of the Catholic faith, and has always been that way,” Richard said.
In Canons 983 and 984, the Code of Canon Law says the seal of confession is “inviolable” and adds that it is “absolutely wrong” for a confessor to betray a penitent “by word or in any other fashion.” The confessor is also forbidden to use knowledge acquired in confession to the detriment of the penitent, “even when all danger of disclosure is excluded.”
Following district Judge Mike Caldwell’s decision to nullify the mandated-reporter statute as applied to Father Bayhi’s case, Bishop Robert Muench, in a prepared statement, offered his prayers and compassion to sex-abuse victims while commending the judge for safeguarding the integrity of the confessional.
“The court’s decision to uphold the First Amendment right to the free exercise of religion is essential, and we appreciate the ruling,” said Bishop Muench, who added that the Diocese of Baton Rouge “will continue to do all that is legal and possible to prevent and stop the abuse of children and young people.”
Meanwhile, the plaintiff’s attorneys will have 30 days from the time Judge Caldwell files his formal written ruling to directly appeal to the Louisiana Supreme Court. Brian Abels, one of Mayeaux’s attorneys, told the Register that he is leaning toward filing the appeal. Abels also said that when the case reaches trial, possibly in 2017, he does not intend to call Father Bayhi as a witness.
“We reserved our right to cross-examine him, should he be put on the stand like he was on Friday by his own attorneys,” Abels said.
While adding that “many challenges remain,” Father Bayhi said the case remains more about religious liberty than himself.
“We still have a ways to go,” Father Bayhi said. “People of faith should be concerned about the outcome, and we pray to God that religious liberties will be protected in this country.”
Brian Fraga writes from Fall River, Massachusetts.