{"id":77467,"date":"2016-08-15T12:00:54","date_gmt":"2016-08-15T11:00:54","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=77467"},"modified":"2016-08-15T12:34:55","modified_gmt":"2016-08-15T11:34:55","slug":"unholy-secrets-the-legal-loophole-that-allows-clergy-to-hide-child-sexual-abuse","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2016\/08\/unholy-secrets-the-legal-loophole-that-allows-clergy-to-hide-child-sexual-abuse\/","title":{"rendered":"Unholy Secrets: The Legal Loophole That Allows Clergy to Hide Child Sexual Abuse"},"content":{"rendered":"
\"CREDIT:<\/a>

CREDIT: DYLAN PETROHILOS FOR THINKPROGRESS<\/p><\/div>\n

It was 2008, and Rebecca Mayeux was living a nightmare.<\/p>\n

Just 14 years old at the time, she was being sexually harassed and abused by a member of her church, 64-year-old George Charlet Jr. According to Mayeux<\/a>*, Charlet bombarded her with emails \u201claced with seductive nuances\u201d over the course of a summer, slowly escalating his inappropriate advances before ultimately kissing and fondling her.<\/p>\n

As if the abuse wasn\u2019t enough, Mayeux had to sit in the same pews as Charlet every Sunday at Our Lady of the Assumption Catholic Church, a tiny country parish about 35 miles north of Baton Rouge, Louisiana. Shaken and afraid, Mayeux, like so many children who endure sexual abuse, felt too ashamed to tell her parents about her ordeal, fearing they would judge her.<\/p>\n

Instead, she fled to the person she thought she could trust the most: Father Jeff Bayhi, her parish priest.<\/p>\n

Mayeux says she visited Bayhi on three occasions to reveal intimate details about her abuse, always meeting under the context of Catholic confession. She says she told him about her unsettling experience, which included an avalanche of suggestive emails, \u201cobsessive\u201d phone calls, and Charlet saying he \u201cwanted to make love to her\u201d before inappropriately touching her.<\/p>\n

\u201cRather than help Mayeux, her lawyers say the priest told her simply to move past the abuse, suggesting she \u2018sweep it under the floor and get rid of it.\u2019\u201d<\/em><\/strong><\/p>\n

But rather than help Mayeux, her lawyers say<\/a> the priest told her simply to move past the abuse, suggesting she \u201csweep it under the floor and get rid of it\u201d because \u201ctoo many people would be hurt\u201d if she brought it out into the open. He reportedly took few if any steps to stop the mistreatment, and the crimes she claimed went unreported.<\/p>\n

Mayeux\u2019s alleged abuser died one year later, but the emotional scars remained. After she finally informed her parents about her ordeal, the family immediately filed a lawsuit in 2009 that implicated Bayhi and the Diocese of Baton Rouge. They charged that Bayhi was negligent in allowing the alleged abuse to continue and that the diocese had failed to inform him that clergy are listed as \u201cmandated reporters\u201d in the state of Louisiana\u200a\u2014\u200athat is, people in leadership positions who are legally required to report knowledge of child abuse to authorities.<\/p>\n

But the diocese, which declined to comment for this story, did not accept blame or even move to condemn Bayhi\u2019s behavior; rather, they rushed to his defense. They pointed to an obscure exemption in Louisiana law: According to the state Children\u2019s Code<\/a>, clergy do not have to disclose information about child abuse if it is revealed during church-sanctioned \u201cconfidential communication\u201d\u200a\u2014\u200ain other words, confession. They argued that not only was the priest exempted from reporting the abuse, but also that he could not be forced to testify about what he heard during confession, as it would broach the Catholic belief in the \u201cseal of confession\u201d and violate his religious liberty. In fact, he could not even confirm<\/em> that a confession happened, as doing so would also violate the seal.<\/p>\n

\"CREDIT:<\/a>

CREDIT: SHUTTERSTOCK<\/p><\/div>\n

Moreover, they contended<\/a> that Mayeux should also<\/em> not be allowed to testify about the cloistered conversations, as Bayhi\u200a\u2014\u200abound by his priestly vow to never reveal what is discussed in confession\u200a\u2014\u200awould be unable to testify in his own defense. To do so, they said, would mean his automatic excommunication from the Catholic Church.<\/p>\n

Mayeux\u2019s lawyers insisted they were not trying to force Bayhi into the witness stand, but maintained that the priest was required to report and that Mayeux should be allowed to testify. The ensuing legal battle has lasted years, with attorneys vigorously debating the limits of confession carve-outs\u200a\u2014\u200athat is, legal protections for religious conversations in the case of child abuse. The case effectively pits religious liberty advocates against supporters of mandated reporting laws, or rules designed to assist abuse victims by upping the chance their ordeals\u200a\u2014\u200awhich are often never reported\u200a\u2014\u200awill be conveyed to authorities.<\/p>\n

The dispute is equal parts legal and theological, and has major implications for the more than 30 states with similar \u201creligious liberty\u201d laws exempting clergy from mandatory reporting during confession. At a time when star-studded films such as Doubt<\/em> and Spotlight<\/em> keep the Catholic child sex abuse scandal in focus, many in Louisiana and elsewhere are beginning to raise questions about the ethics of such exemptions, with some asking out loud why confession carve-outs for child abuse exist in the first place\u200a\u2014\u200aand if they should be changed.<\/p>\n

The uneven history of \u2018clergy-penitent privilege\u2019<\/strong><\/p>\n

Mayeux\u2019s case resurrects an old debate over a little-known\u200a\u2014\u200abut heavily protected\u200a\u2014\u200alegal concept known as \u201cclergy-penitent privilege.\u201d Similar to confidentiality guaranteed to clients of doctors and lawyers, the privilege allows certain conversations between a clergy member and a parishioner to remain private, meaning a faith leader cannot be forced to reveal the information in court. Thus, Bayhi\u2019s attorneys posited that any law forcing Bayhi or other priests to reveal things said in confession\u200a\u2014\u200aeven if it includes child abuse\u200a\u2014\u200a\u201cgravely violates\u201d the principle of religious freedom, specifically Louisiana\u2019s understanding of clergy-penitent privilege.<\/p>\n

They certainly have precedent on their side. In the United States, clergy-penitent privilege, sometimes called \u201cpriest or pastor-penitent privilege,\u201d dates back as far as 1813, when the Court of General Sessions of the City of New York refused to force a priest to testify. Its importance has even been championed by the nation\u2019s highest court, with former U.S. Supreme Court Chief Justice Warren E. Burger declaring in 1980 that certain clerical conversations are off limits.<\/p>\n

\u201cThe priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return,\u201d Burger wrote<\/a>.<\/p>\n

Indeed, shields for clergy-penitent conversations are typically more \u201cabsolute\u201d and robust than those for other professions. Whereas doctors, lawyers, and therapists in many states are compelled to inform authorities about serious crimes they hear about in their work, religious professionals are often not held legally accountable for similar things told to them during pastoral conversations.<\/p>\n

The concept began to impact child abuse as early as 1990, when California passed a law<\/a> that named clergy as mandated reporters for child sexual abuse but also included an exception for information learned during a \u201cpenitential communication,\u201d or conversations in which a religious leader \u201chas a duty to keep those communications secret.\u201d<\/p>\n

\u201cClergy, like social workers and teachers and doctors, if they see abuse anytime, anywhere, it ought to be disclosed.\u201d<\/em><\/strong><\/p>\n

Although trailblazing at the time, California was eventually joined by several other states after the Boston Globe\u2019s \u201cSpotlight\u201d team published their Pulitzer Prize-winning investigation<\/a> into Catholic Church abuse scandal in 2001. Horrifying details of predator priests and complicit bishops shattered trust in men who wore the collar, and Massachusetts lawmakers scrambled to pass legislation that could quell public outrage and prevent any future abuse of children by priests.<\/p>\n

By early 2002, they had found a possible solution: crafting their own version of California\u2019s law naming clergy as mandated reporters. But the bipartisan effort suddenly stalled<\/a> when it became clear that lawmakers had differing opinions on the exemption for confession. Some state house members and senators supported it, some wanted it to be less broad, and others wanted it cut entirely.<\/p>\n

\u201cClergy, like social workers and teachers and doctors, if they see abuse anytime, anywhere, it ought to be disclosed,\u201d then-state senator Cheryl A. Jacques said at the time.<\/p>\n

Some faith leaders also spoke out against the bill, essentially predicting the kind of hellish experience Mayeux describes in her lawsuit. In a letter sent to the state\u2019s House of Representatives in January 2002, Nancy S. Taylor\u200a\u2014\u200apresident of the Massachusetts Conference of the United Church of Christ\u200a\u2014\u200aurged legislators to vote against it.<\/p>\n

\u201cWhile upholding confidentiality as a general principle, it should not be used to protect criminals, or criminal behavior, at the expense of innocent victims,\u201d she wrote<\/a>, according to the New York Times.<\/p>\n

But other, more influential clergy from the Massachusetts Council of Churches and elsewhere ultimately convinced lawmakers that a law without exemptions for religious conversations would result in lawsuits from faith groups. The carve-out was defended as necessary to maintain religious freedom, and the governor eventually signed the bill into law later that year\u200a\u2014\u200awith the exemption intact.<\/p>\n

Dozens of other states soon followed suit, passing laws listing faith leaders as mandated reporters while also providing various permutations of California\u2019s confession carve-out. As of 2015<\/a>, at least 31 states, including Louisiana, now name clergy as mandated reporters but include an exemption for information learned during certain religious conversations. Several other states have laws that are less clear on the subject, and only six states (and Guam) require clergy to report child abuse without exception.<\/p>\n

\"CREDIT:<\/a>

CREDIT: DYLAN PETROHILOS\/THINKPROGRESS<\/p><\/div>\n

Ironically, these exemptions appear tone deaf to a crucial detail of the \u201cSpotlight\u201d article that triggered their creation: Many of the abuses doled out by priests in Massachusetts<\/a> happened during<\/em> confession.<\/p>\n

Mitchell Garabedian, a legendary child abuse lawyer who played a key role in helping the Boston Globe\u2019s \u201cSpotlight\u201d team unearth the horrifying scope of the Catholic abuse scandal coverup, knows this all too well. Garabedian told ThinkProgress he has defended clients who were abused during confession \u201con multiple occasions.\u201d Victims were almost always told to keep their ordeal to themselves, and in one case, a child was forced to perform oral sex on a priest while the cleric heard the confession of another parishioner.<\/p>\n

\u201cThe crimes are endless,\u201d Garabedian said.<\/p>\n

When asked about Mayeux\u2019s case\u200a\u2014\u200awhere the abuser wasn\u2019t a priest, but was allegedly protected by a priest who refused to violate the seal of confession\u200a\u2014\u200aGarabedian was unequivocal: The child\u2019s safety should come first.<\/p>\n

\u201cWhen children are at risk of being abused in any instance, confessional should not be used as a shield to protect the abuser,\u201d he said. \u201cThe safety of children should take priority.\u201d<\/p>\n

\u2018Religious liberty\u2019 vs. anti-abuse advocates<\/strong><\/p>\n

Despite early warning signs, confession carve-outs have gone largely unchallenged since the early 2000s. But the dramatic nature of Mayeux\u2019s case exposed potential flaws, and jump-started a conversation about pastor-penitent privilege in instances of of child abuse. For their part, the Church rehashed much of the same rhetoric used during other political disputes over same-sex marriage, tweaking parts of it for a modern context. The diocese even cited the Preservation of Religious Freedom Act, a Louisiana law passed in 2010 that many saw as an early attempt to push back against the coming legalization of same-sex marriage.<\/p>\n

\u201cThe diocese argued that this statute requiring Father Bayhi to be a mandatory reporter infringes on his free exercise of religion,\u201d Brian Abels, Mayeux\u2019s lawyer, said.<\/p>\n

\"CREDIT:<\/a>

CREDIT: AP PHOTO\/GERALD HERBERT<\/p><\/div>\n

But child rights advocates say mandatory reporting laws are needed to protect children, and that community leaders\u200a\u2014\u200aespecially clergy\u200a\u2014\u200ashould take their responsibility seriously. Cathy Townsend, the National Strategy Manager for Darkness to Light\u200a\u2014\u200athe largest anti-child abuse advocacy organization in the country\u200a\u2014\u200atold ThinkProgress the efficacy of mandatory reporting laws is still a matter of dispute, but insisted their existence is rooted in a painful truth: Only 33 percent of child abuse victims report their abuse in a timely fashion, with an additional 33 percent waiting years to disclose. Many never disclose at all, and those who do often only tell childhood peers who are rarely equipped to offer much-needed assistance.<\/p>\n

\u201cReporting abuse is very traumatizing for many children\u200a\u2014\u200aparticularly when it\u2019s not handled well,\u201d she said. \u201cIt just compounds the problem.\u201d<\/p>\n

If true, Mayeux\u2019s story is a textbook example of how failure to report can not only traumatize victims, but also cause more harm.<\/p>\n

\u201cAfter the first time she went to confession, there were more instances of abuse after that,\u201d Abels said. \u201cOne of the worst instances of the abuse happened after she went to confession.\u201d<\/p>\n

Mayeux\u2019s case even has some Catholics calling for an end to confession carve-outs. In 2014, Julie Love Taylor, a Catholic lawyer who grew up in Baton Rouge, published a lengthy blog post<\/a> for the Louisiana Law Review blasting the clergy exemption in Mayeux\u2019s case and suggesting an amendment to the Louisiana constitution. She argued any residual impact of the change on Catholic confession \u201cis merely an incidental effect of the law.\u201d<\/p>\n

\u201cI understand it\u2019s within the Catholic confessional, but when a child comes forward with that sort thing, you can\u2019t just ignore it. You have a moral compulsion to take some kind of action.\u201d<\/em><\/strong><\/p>\n

She repeated her position earlier this year in an interview with ThinkProgress.<\/p>\n

\u201cWhen you have a child who has been abused\u200a\u2014\u200athey feel a lot of shame,\u201d Taylor said. \u201cIt takes great courage to tell anybody what\u2019s going on. I understand it\u2019s within the Catholic confessional, but when a child comes forward with that sort thing, you can\u2019t just ignore it. You have a moral compulsion to take some kind of action.\u201d<\/p>\n

\u201cI completely understand the other side\u200a\u2014\u200athis is not an easy issue,\u201d she added, noting that two of her uncles are priests. \u201cIt certainly would create problems within the Catholic Church. But I also think that the protection of children who are being abused\u200a\u2014\u200athe worst thing you can imagine\u200a\u2014\u200aneeds to take priority over that.\u201d<\/p>\n

This same argument\u200a\u2014\u200athat protections for religion should have limitations, at least in cases of sexual abuse enacted against minors\u200a\u2014\u200awas also voiced by Mayeux\u2019s lawyers.<\/p>\n

\u201cWe understand [religious freedom] is a constitutionally protected right, but all of our rights give way in certain circumstances\u200a\u2014\u200athere is always a limitation, especially regarding child sexual abuse,\u201d Abels said.<\/p>\n

A (false) theology of secrecy?<\/strong><\/p>\n

Mayeux\u2019s case has been waged in the courts, but it has also sparked a debate among Catholic theologians. Bayhi\u2019s lawyers hold, for instance, that he cannot testify even if Mayeux does, because doing so would violate the seal of confession and leave him automatically excommunicated. After all, the Catechism of the Catholic Church says<\/a> the seal \u201cadmits of no exceptions.\u201d<\/p>\n

Thomas Reese, a Jesuit priest and former editor-in-chief of the Catholic magazine America<\/em>, explained to ThinkProgress the Catholic dedication to confession by recounting a story of a clergyman forcibly apprehended by the mafia. Even as his captors held him at gunpoint, the priest reportedly refused to reveal information he learned during confession, choosing Godly duties over his own life.<\/p>\n

\u201cIf a priest broke the seal of confession, he would not be allowed to act as a priest,\u201d Reese said. \u201cHe would be charged with a canonical crime. It\u2019s the greatest ecclesiastical crime he could commit.\u201d<\/p>\n

Bayhi echoed this sentiment while being questioned by one of his attorneys. When asked whether he would ever violate the seal of confession, he seemed shocked, arguing that confession is only valuable if parishioners believe it to be completely secret.<\/p>\n

\u201cKnowingly? Absolutely not,\u201d Bayhi said<\/a>. \u201cIf that\u2019s not sacred, no one would ever trust us.\u201d<\/p>\n

\u201cIf the penitent says the priest can reveal what he heard in confession, then he can.\u201d<\/em><\/strong><\/p>\n

But Reese and other canon law experts say the problem isn\u2019t so cut and dry. Reese penned an extensively researched article<\/a> for the National Catholic Reporter in February 2015 arguing that \u201cthe weight of theological and canonical opinion supports the right of penitents to allow their confessor to reveal what they told him in confession.\u201d<\/p>\n

In a separate interview with ThinkProgress, Reese explained that while the issue of whether a priest can be released from the seal of confession is \u201ca disputed question,\u201d most canonists believe clergy should be free to testify if the penitent wants to publicly discuss the content of a confession.<\/p>\n

\u201cThe majority of canonists appeared to side with the idea that confession is to protect the penitent,\u201d he said. \u201cTherefore, if the penitent says the priest can reveal what he heard in confession, then he can.\u201d<\/p>\n

The debate makes it difficult to discern whether the Diocese of Baton Rouge is alone in its belief that a priest cannot be released from confession, or if the lawsuit is the new norm for American Catholicism (the U.S. Conference of Catholic Bishops did not return ThinkProgress\u2019 requests for comment). But as Reese pointed out in his article, even if a priest is allowed to testify, problems remain: the ironclad silence of confession\u200a\u2014\u200awhere bishops and other superiors aren\u2019t allowed to know what transpired in a priest\u2019s confession booth\u200a\u2014\u200amakes the practice extremely difficult to police.<\/p>\n

\"Credit:<\/a>

Credit: AP Photo\/Ariel Schalit<\/p><\/div>\n

\u201cHere again the church faces an impossible dilemma: How can it supervise the work of confessors without knowing what is said in confession?\u201d Reese wrote.<\/p>\n

The closed-lipped nature of confession also allows it to be used as a manipulative tool. David Clohessy, national director of the Survivors Network of those Abused by Priests (SNAP), said laws protecting information gathered in confession can be used by abusers to silence other well-meaning clergy members.<\/p>\n

\u201cWe\u2019ve heard rumors over the years,\u201d Clohessy said. \u201cSay \u2018Father A\u2019 molests kids, but fears that \u2018Father B\u2019 has suspicions. Father A then asks Father B to hear his confession, so that Father B is constrained and unable to say anything to anybody.\u201d<\/p>\n

Not just a Catholic problem<\/strong><\/p>\n

The 2001 \u201cSpotlight\u201d report drew national attention to child abuse enacted by priests, but the issue is hardly unique to Catholic clergy. Advocates report that instances like the Mayeux case\u200a\u2014\u200awhere a parishioner, not the priest, is the perpetrator\u200a\u2014\u200aare common. In addition, abuse levels may even be higher among Protestant Christians.<\/p>\n

\u201cSome preliminary studies have indicated that more children are sexually abused within Protestant faith communities than Catholic faith communities,\u201d said Basyle Tchividjian, a Liberty University Law School professor and founder of Protestant-focused anti-child abuse organization Godly Response to Abuse in the Christian Environment (GRACE).<\/p>\n

Unsurprisingly, Protestants and other faith groups are also impacted by confession carve-outs, although usually in different\u200a\u2014\u200abut no less problematic\u200a\u2014\u200aways than Catholics. Many state laws have been written to protect private conversations with a wide range of religious professionals, for instance, and many explicitly name Protestant pastors. But some states do not appear to protect Protestant faith traditions that lack an \u201cofficial\u201d doctrine resembling Catholic confession, and others are simply too vague to draw conclusions either way.<\/p>\n

\u201cIt\u2019s not just Louisiana that is having a problem,\u201d Townsend said. \u201cOther states also aren\u2019t quite sure how to handle it either. A lot of the legislation is just not particularly well-written.\u201d<\/p>\n

\u201cI\u2019ve talked to pastors who were told about abuse by a victim [or perpetrator] and they felt like, \u2018Well that confession is privileged so I can\u2019t report it.\u2019 Which is crazy.\u201d<\/em><\/strong><\/p>\n

Tchividjian explained this minefield of unclear laws is further complicated by widespread ignorance among clergy regarding mandatory reporting laws, leading to instances where pastors fail to report because they believe\u200a\u2014\u200afalsely\u200a\u2014\u200athat they aren\u2019t required or even allowed<\/em> to.<\/p>\n

\u201cI do think there are a lot of situations where offenders could be identified and stopped, and they haven\u2019t, because too many pastors are under the mistaken belief that clergy privilege prevents them from reporting the offense to the police,\u201d Tchividjian said. \u201cI\u2019ve talked to pastors who were told about abuse by a victim [or perpetrator] and they felt like, \u2018Well that confession is privileged so I can\u2019t report it.\u2019 Which is crazy. Such a misunderstanding of the law can contribute to the revictimization of vulnerable children.\u201d<\/p>\n

Tchividjian also said abusers can often manipulate this legal confusion to their advantage, transforming churches and and other faith communities into a \u201cvery safe place for offenders.\u201d<\/p>\n

\u201cAll they have to do is communicate to the pastor, and the pastor believes that his or her hands are tied,\u201d he said.<\/p>\n

The tragic results of this precedent were on full display recently at the evangelical Christian Covenant Life Church (CLC), Protestant megachurch outside Washington, D.C. CLC made headlines in 2014 after a 55-year-old church member named Nathaniel Morales was sentenced to 40 years in prison<\/a> for repeatedly sexually assaulting young boys<\/a> in the congregation. Although Morales\u2019 victims took solace in the ruling, the trial also uncovered a startling fact: In an exchange with a courtroom lawyer, CLC pastor Grant Layman appeared to admit that he was aware of the abuse, but failed to report it.<\/p>\n