Religious confession is in decline in the U.S. Only 17% of Catholics go to confession more than once per year and religious attendance in general is waning among Americans. 

Historically, the law has recognized certain relationships as being so intimate that the privilege of confidentiality is intrinsic. Spouses, for example, cannot be forced to testify against their spouse. Conversations with one’s lawyer are also privileged.

Confessions to clergy, historically, have carried a similar kind of privilege.

As religious confession occupies a smaller role in American life, however, we naturally lose sight of the vision that once informed legally protecting it. There’s a lot that can be said about that vision, but fundamentally, it is rooted in the belief that religion shapes human conscience better than law. At the heart of confession is the idea that we are accountable for our own behavior; not only to legal authorities, but also to an ultimate authority. 

It is, of course, true that some have attempted to render unto God that which is Caesar’s. Perhaps they believed that if God is the ultimate authority, there’s no reason to answer to the laws of men. With good reason, we are afraid to repeat the mistakes of the Archdiocese of Boston. 

This partly explains growing skepticism about the value of clergy-penitent privilege, which protects the confidentiality of disclosures between clergy and congregants — including in regards to criminal and abusive behavior. A growing chorus of journalists and politicians eagerly call for reforms to make clergy into mandatory reporters. If they can articulate the benefits of confidentiality, and the risks incurred by upending it, they don’t.

Instead, they rely on the sensational nature of abuse stories to do the arguing for them. Outrage makes evidence and reason unnecessary. 

It’s not wrong to feel incensed on behalf of the victims. After enduring a variety of abusive situations as a child, I’ve often wondered what steps could have been taken and by whom to help me sooner. It goes without saying that it’s always worth considering additional ways to protect the most vulnerable.

But if we are wrong about upending long-standing legal protections, the costs would ultimately be borne by the vulnerable.

Last week, The Associated Press resurfaced a 2015 news story about a former Latter-day Saint bishop who was accused of sexually abusing his daughter when she was young. According to the report, the Idaho father, John Goodrich, confessed to his church bishop and was excommunicated from the church. 

Local prosecutors opted not to move forward with the case, even though Goodrich had allegedly confessed the abuse to multiple sources, including family members, who were legally able to testify. Idaho law holds clergy liable for disclosing confidential confessions, but The Church of Jesus Christ of Latter-day Saints offered to help the victim pursue further legal action.

Idaho law states: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.”

Yet some continue to argue that efforts to protect the privacy of religious confessions are meant to help perpetrators and not victims. Among other things, this seriously misunderstands the confessional setting. 

surprising amount of research continues to confirm that attempts to turn helpers into mandated reporters may be backfiring in ways that unintentionally hurt women and children. That’s because religious confessional settings provide a safe space to disclose uncomfortable realities, including for victims.

We need these spaces.

A December 2019 study in the Journal of Family Violence found mandatory reporting “reduced help-seeking for over a third of survivors” of domestic abuse. Another study found that mandatory reporting drove poor women to conceal hardships over fears of losing their children.

They’re not wrong to fear this.

Another recent study showed how mandatory reporting increases reports of abuse, but actually lowers the chances of discovering actual abuse. As the Catholic attorney Carl Herstein explained in a commentary for the Deseret News, “rather than simply being held accountable for failure to report abuse and neglect, what these mandatory reporting laws effectively do is make people responsible for failure to report suspicions of such behavior, and most cases reported as suspicious are not confirmed.”

Instead of focusing on the nature and seriousness of abuse and how they can help, mandatory reporters must also worry about how to avoid liability. When this kind of reporting is treated as a panacea, rather than a tool to be used with discernment to help those in need, what can result is a policing culture in which fears about not reporting multiply reports — sapping vital resources needed for victims and causing abusers and victims to go back into the shadows. 

Turning clergy into mandated reporters effectively impresses religious leaders into the service of the state, and parishioners who realize this will have one less setting in which they can be totally vulnerable.

This shift also blunts clergy’s ability to convince perpetrators to turn themselves in voluntarily. This is precisely the concern the Church of Jesus Christ has voiced in these situations, including this statement one representative made in an affidavit: “If members had any concerns that their disciplinary files could be read by a secular judge or attorneys or be presented to a jury as evidence in a public trial, their willingness to confess and repent … would be seriously compromised.”

Whatever the struggle being discussed, the primary purpose of confession is to catalyze a repentance process that aims to correct, restore, heal and bring about justice and mercy. That happens through surfacing the misdeeds in the light of day — so they can be openly examined and proactively resolved.

Repentance, in this understanding, is not an alternative to legal accountability — rather, it includes it. The church teaches both that abuse is sinful and that we are subject to legal authorities for crimes committed.

To the extent that a parishioner takes this idea seriously — that is, that God cares about abuse and true reconciliation to him may include answering for it through proper legal channels — the confessional setting helps victims by creating greater accountability for abusers, not less.

One former bishop recounted meeting with a man who had confessed child abuse to him. When he called the helpline, he was instructed to follow the law — “that’s what they always told us.” This bishop then encouraged the man to turn himself in to authorities as a part of repentance, which is what the man subsequently did. 

For all those who see our prevailing “correction system” as inadequate and perhaps even failing, they might be heartened to consider the implicit correction system taking place in houses of worship everywhere.

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This includes the correction of past wrongs that need to be made right, and the prevention of those that might otherwise be committed. As Herstein notes, “within a healthy faith community, mechanisms for open accountability can catch smaller problems before they become large ones — and help those who could otherwise go on to become offenders right their course.”

Extending the state’s ability to catch offenders, then, must be balanced against the rights of institutions, which prevent offenders. 

This doesn’t mean institutions don’t make mistakes, nor that they can’t abuse legal privileges. It means that we must weigh potential abuses against the benefits which religion and the confessional setting afford to victims and to the creation of a safer society.

Instead of keeping things secret, confession is about honesty and accountability. Let’s therefore be cautious about narratives that ask us to uncritically cast aside legal protections around religious rights for the greater good.

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