The Arizona Supreme Court dismissed a high-profile child sex abuse lawsuit against the Church of Jesus Christ of Latter-day Saints late last year, ruling in favor of church officials because of Arizona's clergy-penitent privilege. The justices said the officials had no duty to report that a church member had been abusing his daughter because the information was received during a confession.
The ruling sparked outrage from some, and at the same time, one Democratic lawmaker tried to introduce a bill in the Arizona Legislature that would make it mandatory for clergy to report child abuse even if they learn about it in a confessional setting. The bill was blocked by Republican Rep. Quang Nguyen, who said, as a Catholic, he saw it as an affront to an essential sacrament in his faith.
So what is the religious defense of this clergy-penitent privilege? And why is it to essential to many faiths?
For some insight into those questions, The Show got a hold of Dr. Michael Mazza, a Catholic canon and civil lawyer as well as a professor at Marquette Law School in Milwaukee.
Full conversation
MICHAEL MAZZA: Essentially, the clergy penitent privileges is just a recognition by the secular government of the importance of a very specific type of speech that is, you know, the communication between a member of the faithful and someone in a position of spiritual authority.
GILGER: And then on the civil side, it's protected. It's long been protected, right?
MAZZA: Yeah, it's been protected in a various number of countries through centuries. There's even one famous case of a Catholic priest named John Nepomucene in the 14th century in Bohemia, he was martyred by the king when the priest wouldn't tell the king what the king's wife had told the priest in confession.
GILGER: That's so interesting. So this goes way, way back, OK. So let's talk a little bit about the mechanics of a confession, right? Like this in a Catholic point of view, at least from where you're coming from, might not be what people think it is from the movies, right? But tell us, first of all, just how it works.
MAZZA: Yeah that's a great question, because the privilege in the state law really protects any kind of confidential communication between, you know, this practitioner of a person's faith and the spiritual leader, but in the and I can't speak to, you know, other religions, but what I can speak to is the Catholic practice. And it's, it might not be what people exactly think. In other words, somebody goes in, it's not, you know, a general counseling session. The priest almost never knows the identity of the person who is going to confession. The person has a right to go behind a screen, to protect confidentiality, also to just limit distractions. The priest also has a right in canon law to only hear confessions in the same way, like he doesn't want to see the person who's going to confess to him, either.
GILGER: OK so this is a little different than you might think. So tell us, you know, from your point of view, teaching canon law and teaching the civil law around this kind of privilege, like, what's your what's your take on, on what's happening in the civil debate around this right now, especially when it comes to this Arizona case we saw, and, you know, sort of outrage over what happened in terms of protecting that clergy privilege and these children being abused?
MAZZA: Right. Well, you know, as a lawyer, I always try to see things from a number of perspectives, and I think that the best argument, or the strongest argument against the privilege, you know, would run something like this, you have a very vulnerable population here, a very vulnerable person who's at risk or actually being harmed, and we have to do all that we can as a society to stop it. So that's the strongest argument. I think. Now I think that argument's wrong and it'll ultimately fail. There are arguments in favor of the privilege, and I think they're very strong. First, I don't think anybody wants to live in a society where the government hears and sees everything we do in order to prevent crimes. That's the stuff of like futuristic horror movies. And we've already carved out other privileged communications, including especially the most famous, I think, is the attorney client privilege, you know, which can actually encourage people to get the help that they need. And this goes to a second reason, you know, communications between a person and someone who has dedicated his life to the service of others and their religious needs that's worth protecting, both on a philosophical level, you know, it says religious practice is a good worth fostering, and also on a practical level, sometimes the only way to help the most desperate people in our society is by encouraging them to seek spiritual help.
GILGER: So spiritual help is one thing, but if someone's being hurt, right? Like that's the question you're going to get from folks. And I'm sure you get this question from students all the time when you teach just this kind of thing. I wonder, like, what is the priest's responsibility in that, if they're not allowed to reveal what was said to them, how do you counsel in a spiritual way that might at least contribute to, you know, stopping a crime from happening?
MAZZA: Yeah, that's a very good question, and I think it calls for an important clarification. Priests, in the course of their ministry, hear a lot of things. They engage in counseling all the time, and in some states, priests and others in similar positions, teachers, counselors, whatever they are, mandatory reporters, and so they very well may need to report. The priest penitent privilege, or the clergy penitent privilege is a very specific type of exclusion. You know that certain kinds of those communications must not be turned over to the authorities.
GILGER: That’s really interesting. You also talked about the fact that many priests have gone to jail or would go to jail to protect this, right? This was, it almost is like beside the point, what the civil law says at one point you think?
MAZZA: Yeah, I think that's accurate. It's interesting, because I think this is drummed into the heads of every, certainly every Catholic seminarian, that Canon Law absolutely forbids any use whatsoever of any knowledge gained in a sacramental confession. So again, it's, it's extremely narrow, but it's, it's extreme. It's, you must not use it in any way. I mean, I know priests are going to go to jail before they ever violate the seal of the confessional. Under Canon Law, if you violate the seal of the confessional, you get excommunicated.
GILGER: I mean, what strikes me about talking to you about this issue is that, and you do this in your work, right, like you straddle the line between the religious world and the civil world, right in terms of the law. Is there sort of like something lost in translation, almost in the coverage of these kinds of cases and in the public understanding of them, because we're basically not speaking the same language?
MAZZA: Yeah, I think that's true. I think the motivation for legislative activity in this regard is to curtail the privilege, I get it. I mean, I can sympathize with it. I just think it's a good intention, but it would result in very, very bad legislation. I mean, it's not going to work either. The other here's the thing, right? If the state comes in and says, ‘Hey, you clergy, you need to turn over to us certain kinds of communications that we think represent a harm to the society’, and it very well might be very serious harms. People are not going to go, they're not going to go to Confession at all. And of course, if someone is really that diabolical, you think he's actually going to go to a sacramental confession?
GILGER: I appreciate you taking the time. That's Dr Michael Mazza cannon and civil lawyer, professor at Marquette Law School in Milwaukee, talking to us more about this privilege. Dr Mazza, thank you so much for coming on. Thanks for taking the time here. I appreciate it.
MAZZA: You’re welcome, Lauren, thank you.
