Father Jeff Bayhi could soon find himself on the witness stand, facing questions about what a teenage girl reportedly told him in the confessional six years ago about an adult male parishioner allegedly molesting her.
"If indeed this comes to pass, the priest will have to remain silent. He would simply have to say, ‘I can’t answer that question.’ He would have to risk going to jail," said Father Michael P. Orsi, a former chaplain and research fellow in law and religion at Ave Maria Law School in Naples, Fla.
Father Bayhi, a native of Baton Rouge, La., is a defendant in a civil lawsuit brought by the girl’s relatives, who argue that he gave the girl bad advice and failed to comply with Louisiana’s mandated reporter laws by not notifying authorities about what she told him in the confessional in July 2008.
The Louisiana Supreme Court, in overturning an appellate court ruling, recently determined that the girl’s lawyer can present evidence about the alleged confessions at trial. The Supreme Court also said the trial court should convene a hearing to determine whether a valid confession was actually held in order to decide whether the priest’s conversations with the girl are privileged.
The Diocese of Baton Rouge, which is also named as a defendant in the lawsuit, last week issued a forceful statement that challenges the notion that a secular civil court has the competency to define a valid sacramental confession.
"We contend that such a procedure is a clear violation of the Establishment Clause of the U.S. Constitution. 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," the diocese said, adding that the matter has serious consequences to all religions.
The diocese also said it will take the matter to the U.S. Supreme Court if necessary to protect the Catholic Church’s "free exercise of religion."
The specter of a government branch pressuring a Catholic priest to break the seal of confession—a canonical offense that carries an automatic penalty of excommunication for a priest—has drawn strong responses in Catholic circles.
There is growing pressure in various countries to force priests to violate the seal, said Jeffrey Mirus, a philosopher and president of Trinity Communications, the nonprofit that runs the website CatholicCulture.org.
"Although this is primarily coming up in matters of sexual abuse, where the Church has greater vulnerability, it has sometimes been proposed for capital crimes, such as to prevent a murderer from killing again," Mirus said. "The pressure grows as culture secularizes and religious faith wanes—and as modern man assumes increasingly that he knows best, affording less and less respect to spiritual values and traditional values."
Mirus added that a priest cannot give any indication that he knows anything about a confession, including who confessed to him.
"The penitent, of course, is not bound by the seal. He or she can talk to anybody at any time about what was confessed and what the priest said," Mirus said. "But the priest can say nothing. Were the priest even to come out of the confessional at the end of his time there, see a penitent in the Church, walk up to him and say, ‘That was a good confession, Joe,’ he would be violating the seal. He must give no indication at any time, even to the penitent himself, that he is aware of the confession or of who has confessed to him."
Father Orsi told Aleteia that a court order compelling the priest to testify about sacramental confession would constitute a "blatant attack on the Catholic Church."
"This definitely involves religious freedom," Father Orsi said. "The HHS mandate will look like small-time, small potatoes, compared to the government forcing a priest to violate the seal of confession."
The pressure on Father Bayhi to break the seal of confession, Father Orsi said, continues a trend of religious freedom being squeezed by government. In Father Bayhi’s case, the Catholic Church has held the line on the sacrament’s invioability, which stands in stark contrast to Anglican Church leaders who voted earlier this month to authorize Anglican priests in Australia to disclose unreported serious crimes, such as sexual abuse, to authorities that they hear in confession.
"Presuming (Anglican) sacraments are valid, they are betraying their own people by doing something like this because people go into confession with the belief that what they say will never ever be revealed," Father Orsi said.
Canon Alistair Macdonald-Radcliff, an ordained Anglican clergyman and director general of the World Dialogue Council, said the Australian Anglican Synod’s vote to break the seal of confession in certain cases is problematic.
"It chips away at the clergy’s ability to keep things in confidence," Macdonald-Radcliff told Aleteia. He said the vote also speaks to other issues pertaining to societal trust and the increasing notion that privacy and confidentiality are always attempts at concealing important information.
"It will not affect the Catholic Church, except that it will make it more difficult for outsiders to see why the Church is holding out when so many other Christian bodies have been ‘reasonable,’” Mirus added.
In addition to serious concerns about religious freedom, there are some complicated legal principles in the Louisiana case, especially those that pertain to "sacred communications" and exemptions from state public disclosure laws.
In most states, the clergy-penitent relationship, in the form of private counseling or sacramental confession, carries a similar privacy privilege granted between spouses, attorneys and clients, as well as physicians and counselors with their patients. However, sacred, privileged communications are not the same as informal conversations between members of the clergy and the laity. For example, a group of parishioners approaching a priest in a shopping mall and discussing a criminal act would not be considered a privileged conversation.
In Father Bayhi’s case, the trial court wants to determine whether the girl’s alleged disclosures happened during the formal Sacrament of Reconciliation, which would, in theory, be exempt from public disclosure laws.
"The question here is, ‘Was it a real confession?’ because she disclosed something that happened to her," said Paul Rothstein, a law professor at the Georgetown University Law Center.
Court documents indicate that Father Bayhi, while outside the confessional, sought to act "in good faith" regarding observations he made between the girl and the adult male parishioner. Father Bayhi told the man, who has since died, to end his relationship with the girl, advised him and his wife to speak with the child’s mother, and Father Bayhi also expressed concerns about the man’s relationship with the girl.
In Louisiana, sacred communications are theoretically exempt from the state’s mandated reporter law, but two state statutes conflict with each other; one statute says a member of the clergy is not required to disclose a sacred communication, but the other says any mandated reporter is obliged to report suspected child abuse "notwithstanding any claim of privileged communication."
The Louisiana situation is an example of how states respond differently when weighing privileged religious conversations with the government’s interest in investigating and prosecuting criminal and civil offenses.
"Some states are coming out differently on that balance," Rothstein said. "Some say the state interest is compelling and that freedom of religion has to take a backseat, while other states take the view that freedom of religion is paramount and supersedes the interest of the state to get information.
"The bottom line is different states all resolve this differently, and until the U.S. Supreme Court gets the question directly and makes a ruling, there will not be unity on this kind of matter," Rothstein added.
However, a complicating factor in the Louisiana case is that the penitent, according to court documents, has waived her right of privacy, and she is willing to testify about what she claims she told Father Bayhi in the confessional on three occasions.
The Diocese of Baton Rouge tried to prevent any testimony about the confessions from being introduced at trial. The trial court refused the diocese’s request, which prompted an appeal. The state appellate court sided with the diocese, and dismissed the lawsuit against the diocese and Father Bayhi on the grounds that the girl’s confession was "clearly" made during the Sacrament of Reconciliation, and was thus confidential.
The Louisiana Supreme Court took the position that the confession was not a "privileged communication" because the penitent waived her right to privacy. In effect, the high court said Father Bayhi cannot invoke confidentiality because it can only be invoked "on behalf of" the penitent.
"It’s hard to see any legitimate reason why that evidence should be suppressed," Rothstein said. "You could see a reason if it was the wrongdoer who had confessed, then you could see why there would be some religious interests to keeping that testimony out.
"There’s an argument on the other side that the priest and the church also have an obligation to their conscience, but it’s difficult to understand why a priest’s conscience demands he keep quiet if she doesn’t want him to," Rothstein said.
The Diocese of Baton Rouge said in its statement that "Church law" does not allow the penitent or anyone else to waive the seal of confession, though the Code of Canon Law does not actually address the question of whether a penitent can release a priest from the seal of confession.
St. Thomas Aquinas, writing in the Summa Theologica, said a penitent could repeat what he or she confessed to the priest outside the confessional. Other commentators have also suggested that as a way to free the priest to talk about something disclosed during confession, said R. Michael Dunnigan, the vice president of canonical affairs and general counsel for the St. Joseph Foundation, a Texas-based canon law firm.
"It’s a little bit complicated. If I were a confessor, I’d have to be extremely careful about this," Dunnigan told Aleteia.
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." A pastor cannot even use knowledge that he obtains in the confessional when operating his parish.
In Father Bayhi’s matter, Canon Law would theoretically advise him not to testify in court about the girl’s confessions if his testimony would create a possible detriment to her.
"I don’t think you can force the priest to testify, or to talk about the confession" Dunnigan said.
Even if his testimony does not create a detriment, Father Bayhi would be in the awkward position of being asked about confessions that he cannot even verify occurred. In its statement, the Diocese of Baton Rouge hinted that Father Bayhi is prepared to face jail time because he will not testify about confessions that the penitent claims took place.
Father Bayhi declined to be interviewed by Aleteia.
"If necessary, the priest would have to suffer a finding of contempt in a civil court and suffer imprisonment rather than violate his sacred duty and violate the seal of confession and his duty to the penitent," the diocese said.
Brian Fraga is a daily newspaper reporter who writes from Fall River, Massachusetts