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Under God

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R. Michael Cassidy, associate professor of law. By Lee Pellegrini

R. Michael Cassidy, associate professor of law. By Lee Pellegrini

It's time to tighten the clergy-penitent privilege, says a BC Law professor

A man goes to his priest, minister, or rabbi and reveals three things: that he can't stand his job; that he's just bought a shotgun; and that tomorrow he intends to shoot his boss. If the man follows through, can a court compel the clergy member to testify at the murder trial? According to R. Michael Cassidy, associate professor at BC Law School, the answer to this question varies from state to state and by court. The lack of uniformity, he says, serves neither justice nor the clergy. In an article published in the William and Mary Law Review last year, he calls for a narrowing of the rules.

Cassidy proposes a model statute that would compel clergy to testify about many conversations in which the intent was disclosed to commit a serious violent crime. The only conversations remaining privileged would be confessions that are deemed secret under religious law, such as those offered within the sacrament of Penance. This exception, he explains, would allow the statute to skirt potential church-state conflict.

At present, notes Cassidy, common law privileges excuse clergy members from testifying in federal courts. Most states, however, "define clergy-penitent privilege by statute," he says, "and the states are all over the board on this." In most states, Casssidy says, the parishioner holds the privilege—that is, he or she determines whether the clergy member testifies or not—but in some states both individuals hold the privilege, and the clergy member can refuse to testify if he chooses.

Some states privilege only information disclosed during sacramental confessions; others also privilege information disclosed during spiritual and even marital counseling by a clergy member. Some states apply the privilege not only to those whom we traditionally think of as clergy but also to deacons, nuns, and lay religious counselors. In 1971, a court in California extended the privilege to draft counselors who happened to work with a minister at a college. And some states apply the privilege to conversations that take place at Alcoholics Anonymous meetings, because AA is founded on religious or spiritual principles—an example, says Cassidy, of "clergy-penitent privilege where there's no clergy present." In mutations such as these, the clergy-penitent privilege, Cassidy says, has grown far beyond its original dual purpose, that of avoiding state interference with religious exercise and of encouraging people to seek spiritual counseling ("society has an interest in fostering a morally grounded and well-behaved citizenry," notes Cassidy). Worse, such broad privilege often interferes with a crucial function of the legal system: learning the truth.


CASSIDY decided to study clergy-penitent privilege in reaction to the clergy sexual abuse crisis in the Catholic Church. A Catholic layman and former prosecutor, he says he was "concerned about how these horrific acts could have gone undetected and—where detected—tolerated for so long." On the other hand, he says, "In some respects, my article has very little to do with the crisis." When religious superiors learn about abuse, says Cassidy, it is not usually from a formal confession but "because parents complain to them, or another priest tells them about it. And these situations are already dealt with by child abuse reporting statutes"—among them the mandated reporter law enacted last year in Massachusetts, which requires clergy, along with educators, medical workers, and social service providers, to report any reasonable suspicions of child abuse to civil authorities.

Cassidy's model statute has no comparable reporting requirement. Nonetheless, he says, it presents a strong incentive to clergy to deliver an early warning to authorities whenever possible, the chance to avoid the embarrassment of having to explain in open court why a serious crime was allowed to happen.

David Reich


David Reich is a writer based in the Boston area.

 

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