BATON ROUGE, La. —  The Louisiana Supreme Court has ruled that a trial court may admit a girl’s testimony about sacramental confessions in a lawsuit accusing a priest and the Church of failing to report her sexual abuse at the hands of a now-dead parishioner.

But the high court’s ruling has set the Diocese of Baton Rouge on edge with its mandate that the trial court discover whether the girl made a sacramental confession or that the priest’s knowledge of the abuse came about in some other way.

The high court reversed the decision of an appellate court, which last year threw out a lawsuit against Father Jeff Bayhi and the Diocese of Baton Rouge. The suit, filed in 2009, claims the priest failed in his duty as a mandatory reporter when a 14-year-old girl allegedly told him during three separate confessions in 2008 that she was being sexually molested by a 64-year-old parishioner.

The First Circuit Court of Appeals said that the record showed the girl communicated the sexual abuse during the sacrament of reconciliation and that the law exempted priests from being required to report communications they have a duty to keep confidential according to the “discipline or tenets of the Church.”

The diocese had argued the girl’s testimony about the confession should not be admitted as evidence of failing to report abuse. But the Louisiana Supreme Court stated that the law did not prevent the girl from testifying about her own confession. “If the penitent waives the privilege, the priest cannot then raise it to protect himself, as he can only ‘claim the privilege on behalf of the person,’ not in his own right,” the high court ruled.

But the high court said the trial court needed 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.”

 

‘Assault’ on Church Doctrine

The Baton Rouge Diocese warned in a strongly worded two-page statement that the high court’s order “assaults the heart of a fundamental doctrine of the Catholic faith as relating to the absolute seal of sacred communications.”

According to the record cited by the appellate court, the girl related the abuse to the priest within the sacrament of reconciliation on three occasions. But the record indicates the plaintiffs implied that these communications were not “truly” a confession because the girl was relating the fact of her sexual abuse, not a sin.

The diocese said the high court did not have the jurisdiction “to adjudicate claims that turn upon such purely religious questions.”

“The Supreme Court of Louisiana cannot order the district court to do that which no civil court possibly can — determine what constitutes the sacrament of reconciliation in the Catholic Church,” it said.

The diocese pledged to fight that issue all the way to U.S. Supreme Court if necessary. It also said Father Bayhi could not and would not testify about the confession, because canon law does not permit anyone, not even a penitent, to allow a priest to reveal that he heard a confession or its contents.

“This is not a gray area in the doctrines of the Roman Catholic Church,” the diocese stated. “A priest/confessor who violates the seal of confession incurs an automatic excommunication reserved for forgiveness to the Apostolic See in Vatican City.”

Brian Abels, who is representing the girl and her parents, told a local news station he had no intentions of forcing Father Bayhi to testify. He said he only wanted the girl to be able to relate to the court her description of the confessions, where Father Bayhi’s alleged advice was to “sweep it under the floor and get rid of it."

“Her testimony has been it [the confession] was more of a plea for help, counseling, and that plea, according to her, went unheeded,” Abels said.

 

'Absolutely Inviolable’

J.D. Flynn, a canonical adviser and special assistant to Bishop James Conley in the Lincoln Diocese in Nebraska, explained that the seal of the confessional is “absolutely inviolable,” because the Church wants people “to freely seek the mercy of God through the sacrament of reconciliation.”

“A priest can’t disclose the contents of the confession, nor can he say whether someone has been to him for confession or not,” he said. “It has to be treated with absolute secrecy.”

In the case where a penitent is revealing criminal matters during confession, such as knowledge about a future crime or ongoing abuse, Flynn said the priest can only ask the penitent to repeat that information to him after confession.

But the situation is different under canon law if the priest’s communications take place in a counseling relationship, a session of spiritual direction or other contexts of pastoral care.

“In those relationships, there is a limited amount of confidentiality,” Flynn said. Like other counselors, those disclosures to a priest would ordinarily remain private “unless a person poses a danger to himself or others or unless a person releases him to do so.”

“But in the field of confession, there is no possible release that way,” Flynn said, despite the hard cases. “The priest is bound to that secrecy in all circumstances, regardless of how he may suffer for it.”

Eric Kniffin, an attorney with Lewis Roca Rothgerber LLP, who has litigated religious-liberty cases, said the priest-penitent privilege is “very strong” in the United States and has deep roots in English common law. The first case in the U.S. to recognize the priest-penitent privilege, he said, was People v. Philips in 1813.

 

What Will the District Court Do?

But Kniffin, who previously worked for the Becket Fund for Religious Liberty on the Hobby Lobby and EWTN HHS mandate cases, said concerns that the Church’s religious freedom is being violated are premature.

“There is something unfair here, in that the [perpetrator] is dead, and the priest can’t really address the allegations,” he said. “But the courts’ rulings so far have not violated the Church’s religious liberties.”

He said the high court was right to allow the girl to testify about her own confessions.

“As a Catholic myself, I understand that nothing prevents me from sharing with another what I told a priest and the advice I received in confession,” he said.

Kniffin believes that the plaintiff’s argument that part of the girl’s confessions falls outside the priest-penitent privilege is a dead-end strategy.

“No court is going to parse a confession, and find that the second half of that sentence was just a description of a situation, so wasn’t really a confession of sin. No way.”

The real focus for the court, he said, will be whether the priest had knowledge of the abuse outside of the sacrament.

“If she told him elsewhere or if [the priest] was in another situation in which he saw something suspicious, then he has to report that under the law,” he said.

Still, Kniffin said he appreciates the Church’s sensitivity over where the district court might take the case.

“If all the communications were in the confessional, but the priest is still found to be a mandatory reporter,” he said, “then that is saying the priest has a legal duty to violate the confessional. And that can’t be the case.”

Peter Jesserer Smith is a Register staff writer.