Confessions, Confidentiality, & the Constitution: A Recent Case on Clergy Exceptions to Mandatory Reporting Laws

The assurance of confidentiality when sins are confessed to clergy is a sacrosanct belief in various religious groups. Some religious traditions hold to practices of auricular or sacramental confession that are tied to penance and absolution, while others have practices and teachings on clergy confession that are less formalized. Protections and accommodations for these practices and beliefs have existed under American law since the infancy of the Republic. In People v. Phillips (1813), the earliest case recognizing a form of clergy privilege, the Court of General Sessions of the City of New York refused to compel a Catholic priest to testify against a parishioner from whom he had received confession, reasoning that:

It is essential to the free exercise of a religion, that its ordinances should be administered—that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance...

This evidentiary privilege, which goes by several different names, protects confidential communications made to clergy from being used against defendants in criminal proceedings, as well as from being compelled to be produced for discovery in civil matters. Every U.S. state as well as the District of Columbia has adopted some form of this privilege.

Clergy Privilege vs. Child Protection

One contentious issue surrounding this privilege is its relationship to instances of child abuse. The laws of twenty-eight states specifically provide that clergy are among the specified classes of professionals who are mandatory reporters of child abuse.¹ In eighteen other states, all persons are mandatory reporters.² Thirty-one of the forty-two states in which clergy are mandatory reporters have expressly adopted limited exceptions for penitential communications made to clergy.³ However, in seven states, the applicable mandatory reporting law abrogates penitential privilege in instances of child abuse,⁴ and in five other states, the application of the privilege to mandatory reporting laws is not addressed.⁵

In addition to its tension with mandatory reporting laws, the clergy-penitent privilege also encounters friction in the context of civil suits arising from child abuse. When plaintiffs bring lawsuits against churches for mishandling sex abuse, there are sometimes fights in the discovery stage of litigation as to whether documents or information is covered by the privilege, often with defendant churches arguing that the privilege exempts them from complying with certain discovery requests and plaintiffs arguing against the application of the privilege.⁶ Moreover, because proving that a defendant violated an applicable statute is generally considered negligence per se, plaintiffs in church-related child abuse lawsuits rely on a church’s failure to report abuse as a basis for liability. When this happens, some churches have argued that its communications with alleged abusers, and even victims, fall under the clergy-penitent privilege and thus exempted them from compliance with mandatory reporting statutes.⁷

However, the burden for establishing a clergy-penitent exception in the context of mandatory reporting is often fairly high. Many states require that the exemption from reporting only applies where the clergy receives the information through a “penitential communication,” and only where the confidentiality of confessions to clergy are essential to doctrine and teaching of the particular religious sect.⁸ While these rules accommodate traditions like Roman Catholicism that have a well-established teaching on confidentiality for sacramental confession, they may not apply to other groups, including many evangelical denominations, that have little if any teaching on confessional confidentiality.

In cases where the clergy claim exemption from reporting requirements, but the communications at issue were not received through a conventional auricular confession or where the affiliated religious sect does not have a clear teaching or discipline concerning clergy confidentiality, secular courts are put in the difficult position of making determinations of religious doctrine and practice. This scenario can cause friction with the First Amendment, which requires courts to abstain from making doctrinal or ecclesiastical decisions.⁹ A recent decision from the Montana Supreme Court is an example of a court affording significant deference to a religious group’s assertions as to its doctrines regarding clergy confidentiality rather than navigate the path between a statutory Scylla and a constitutional Charybdis.

Nunez v. Watchtower Bible and Tract Society of New York, Inc.¹⁰

In 1998, five-year-old Holly McGowan told elders in her local Jehovah’s Witnesses congregation that she was being sexually abused by her stepfather, Maximo Reyes. Pursuant to the Jehovah’s Witness teaching on the necessity of at least two witnesses of an offense to be actionable, the elders dismissed her allegations and she continued to be raped by her stepfather until 2004 when other children in the home also reported the abuse to the elders. The “two-witness rule” being satisfied, Maximo was expelled from the congregation, but, pursuant to Jehovah’s Witness practice of handling moral disciplinary matters in the congregation, the elders did not report the abuse to any state authorities. Instead, the elders submitted a report to the Jehovah’s Witnesses’ denominational governing body, who advised the elders that Montana law did not require them to report the abuse to authorities.

In 2016, Holly and her niece, Alexis Nunez, who was also abused by Reyes, sued the local congregation as well as the national Jehovah’s Witness organization, the Watchtower Bible and Tract Society of New York, Inc., for negligently failing to report their abuse to authorities. The plaintiffs argued that the defendants violated Montana’s mandatory reporting statute, which includes clergy as an enumerated class of professionals who must report child abuse.¹¹ However, Montana’s reporting statute also contains a provision exempting clergy from their reporting duties when “the communication is required to be confidential by canon law, church doctrine, or established church practice.”¹² The defendants argued that this exemption applied because of the Jehovah’s Witnesses’ practice of handling their members’ moral matters in-house rather than reporting to law enforcement. The trial court rejected this argument and entered summary judgment in favor of the plaintiffs as to liability. A jury then awarded the plaintiffs $35 million in damages.

The defendants appealed to the Montana Supreme Court, which unanimously reversed the trial court’s judgment on the grounds that the exemption for church doctrine of confidentiality did apply and that the defendants therefore did not violate the mandatory reporting statute. While the plaintiffs argued on appeal that adopting a broad and expansive reading of this exemption would effectually erase the mandatory reporting statute, the Montana Supreme Court reasoned that:

imposing a narrow definition of confidentiality impermissibly could discriminate between different religious beliefs and practices, protecting confidentiality of reports made in a confession from a parishioner to priest, like the traditional Catholic practice, while offering no protection to a congregant’s disclosures to a committee of elders using a process like that followed by the Jehovah’s Witnesses.

The court further reasoned that the Establishment Clause of the First Amendment ensures that “one religious denomination will not be officially preferred over another” because it forbids courts “from considering whether certain religious conduct conformed to the standards of a particular religious group.” The court therefore concluded that, since it could not constitutionally question the Jehovah’s Witnesses’ articulation of its own religious teaching and practice, it must apply the doctrinal confidentiality exemption and reverse the judgment.

Takeaways from this Case

Courts in other jurisdictions deciding the matter of whether Jehovah’s Witness practices of internal investigations fall within the scope of the clergy-penitent privilege have declined to recognize Jehovah’s Witnesses’ claims to the application of the privilege to shield them from liability in child abuse litigation.¹³ These courts opted for a narrow interpretation of the privilege. However, the Montana Supreme Court’s decision in the Nunez case represents an alternative approach; one that seeks to extend the scope of the privilege beyond the traditional notion of clergy confession as a single parishioner seeking personal absolution by confessing sins to a single minister. This approach is concerned with the constitutional implications of a restrictive application of the privilege that might effectually result in sectarian preference.

Nevertheless, the Nunez decision is not a decision on the clergy privilege in general, but rather is specifically an interpretation and application of a Montana statute. It is important to remember that mandatory reporting statutes vary considerably from state to state, especially as they accommodate or abrogate the clergy-penitent privilege and confessional confidentiality. Any clergyperson or ministry seeking to abide by a doctrinal teaching or religious practice of confidentiality should first confer with legal counsel to understand the particular laws in their own jurisdictions, as well as the official doctrine of their denomination, before risking a potential violation of mandatory reporting laws. In addition, ministries should consider how best to protect children and report child abuse in the context of their official doctrine.

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¹ Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Illinois, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Vermont, Virginia, West Virginia, and Wisconsin.

² Delaware, Florida, Idaho, Indiana, Kentucky, Maryland, Mississippi, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Utah, and Wyoming.

³ Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Utah, Vermont, Virginia, Wisconsin, and Wyoming.

⁴ New Hampshire, North Carolina, Rhode Island, Oklahoma, Texas, and West Virginia. Tennessee abrogates the privilege where the child abuse is of a sexual nature.

⁵ Connecticut, Mississippi, Indiana, Nebraska, New Jersey.

⁶ See, e.g., Doe 2 v. Superior Court, 132 Cal. App. 4th 1504 (2005); Roman Catholic Archbishop of Los Angeles v. Superior Court, 131 Cal. App. 4th 417 (2005); Simpson v. Tennant, 871 S.W.2d 301 (Tex. App. 1994) (cases where churches cited clergy privilege as grounds for refusal to produce documents in discovery).

⁷ See, e.g., Jane Doe v. Corp. of Pres. of Church Jesus Christ of Latter-Day Saints, 90 P.3d 1147 (Wash. App. 2004); J.W. v. Watchtower Bible and Tract Society of New York, Inc., 29 Cal.App.5th 1142 (2018) (cases where churches assert clergy privilege as defense to claims arising from failure to report sexual abuse).

⁸ See, e.g., Ga. Ann. Code § 19-7-5; Idaho Ann. Code § 16-1605; Maryland Fam. Law § 5-705(a)(1), (a)(3); Utah Ann. Code § 62A-4a-403; Vermont Ann. Stat. Tit. 33, § 4913(a), (h)-(i); Va. Ann. Code § 63.2-1509; Cal. Penal Code § 11166(d); Ill. Comp. Stat. Ch. 735, § 5/8-803; La. Children's Code Art. 603(17)(b)-(c).

⁹ See Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952) (the First Amendment guarantees a “spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine”).

¹⁰ 455 P.3d 829 (Mont. 2020).

¹¹ Mont. Code. Ann. § 41-3-201(2)(h).

¹² Id. at (6)(c).

¹³ See, e.g., Conti v. Watchtower Bible & Tract Soc'y of New York, Inc., 235 Cal. App. 4th 1214, 1229 (2015); McFarland v. West Congregation of Jehovah’s Witnesses, 60 N.E.3d 39 (Ohio App. 2016); J.W. v. Watchtower Bible and Tract Society of New York, Inc., 29 Cal.App.5th 1142 (2018).

Featured Image by Rebecca Sidebotham.