Hostile legislative climate over confessional seal nothing new, says priest-canon lawyer

(OSV News) -- If it seems like batches of states are suddenly legislating mandatory clergy reporting laws -- legal decrees that require clergy to report child abuse or neglect revealed in the confessional -- Father John Paul Kimes, a canon lawyer, has some current and historical context to offer.

"It's not nearly as new as people think it is -- because they just don't know. It's been going on for a while," said Father Kimes, associate professor of the practice at the University of Notre Dame Law School in Notre Dame, Indiana.

"We get mandatory reporting in U.S. legislation in the Child Abuse Prevention and Treatment Act, in 1974," shared Father Kimes. The act has been updated, amended and reauthorized several times since, as recently as 2023.

Every U.S. state, district, or territory has some form of mandatory reporting law. Most states that specifically include clergy in their mandatory reporting laws provide some clergy-penitent privileges to varying degrees, according to data from the Child Welfare Information Gateway, which operates under the Children's Bureau at the U.S. Department of Health and Human Services.

As the American Bar Association's ABA Journal noted in a July 2025 article, "More than half the states include members of the clergy as mandated reporters, but most also recognize the confessional privilege. Meanwhile, other states and Washington, D.C., have universal mandatory reporting."

Recent headline-grabbing mandatory reporting legislation -- particularly in Washington state -- has gained attention precisely because it seeks to define a legal climate with no exceptions for clergy-penitent privilege.

New Hampshire, North Carolina, Oklahoma, Texas and West Virginia already require clergy to report information about sexual abuse shared in the confessional. State legislatures in Delaware, Hawaii, Utah and Vermont attempted the same in 2023, but none of those bills made it to their governors' desks.

"All of these bills have one thing in common -- they look at the question of protecting children, and the notion of the sacramental seal, as being an irreconcilable binary," explained Father Kimes. "They believe that it is impossible to maintain the sacramental seal and protect children at the same time."

"And as a priest, I find it ridiculous," he continued. "As a lawyer, I find it simpleminded -- and at some points terrifying -- in its oversimplification of a very complicated and tragic reality of child sexual abuse. But the binary approach," added Father Kimes, "does not reflect the reality of these complexities. And it necessarily reduces a complicated problem to what appears to be a simple solution. That's just not the case."

The Catechism of the Catholic Church states priests are forbidden from sharing what penitents tell them during confession, part of the sacrament of reconciliation, and that information a penitent divulges in that context is under "seal."

Priests maintain that seal under pain of automatic excommunication, potentially placing them at odds with civil law if clergy-penitent privilege for confession is nullified.

"The priest-penitent privilege dates back -- in the English common law system -- a number of centuries," explained Father Kimes. "There's evidence of it existing already in pre-Reformation England, and it certainly continued in some form in post-reformation England."

In 1534, King Henry VIII declared the king to be "the only supreme head on earth of the Church of England," thereby displacing the pope.

"So even in the rejection of the Catholic faith," said Father Kimes, "the English legal tradition did not reject the priest-penitent privilege."

The Wigmore Criteria -- a set of four legal principles used to decide if certain communications are privileged and should be protected from disclosure in legal proceedings -- have set standards for over 100 years, shared Father Kimes.

Named after John Henry Wigmore (1863-1943) -- an American jurist and an expert on the law of evidence -- they establish that: the communications must originate in a confidence that they will not be disclosed; this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; the relation must be one which in the opinion of the community ought to be sedulously (diligently) fostered; and the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

Something has, Father Kimes suggested, shifted in terms of attitudes.

"These legislative proposals presume that there has been a change in the way that the community views the confidentiality of the sacramental seal," he noted. "Obviously the communicates originate in confidence; that's the nature of the sacrament of confession. Confidentiality is essential to the full and satisfactory maintenance of the relationship."

"The penitent knows that he or she comes to the priest also because of this element of confidentiality, but it's the third (of the Wigmore) criteria -- that the community recognizes this -- that's where the legislation thinks there's been change," said Father Kimes. "But then obviously the fourth criteria falls with that, because the opposite is now believed. All of these legislations work on the theory that the injury is greater in nondisclosure than in disclosure."

While events of recent decades have conditioned observers to think in terms of clergy-penitent privilege with respect to sexual abuse, the defining historical incident instead involves theft.

"There was a guy who had knowingly received stolen goods; he was an immigrant Irish Catholic. He confessed to a priest named Father Kohlmann," explained Father Kimes. "Father Kohlmann apparently had Mr. Phillips bring the stolen goods to the church. And Father Kohlmann himself returned the stolen goods to the original owner."

"The owner then reported everything to the police," he continued. "The state subpoenaed the priest, Father Kohlmann, and the court decided that the only course of action that it could take -- based on its understanding of the First Amendment -- was for the court to declare that Father could not testify or act at all."

The case -- People vs. Philips (1813) -- was heard in New York's Court of General Sessions, or the "Mayor's Court," with DeWitt Clinton writing the opinion on behalf of the unanimous body.

"He says, 'To decide that the minister shall promulgate what he receives in confession is to declare that there shall be no penance. And this important branch of the Roman Catholic religion would thus be annihilated,'" recounted Father Kimes.

"So the judge -- in the very first case in U.S. legal history that applies the priest-penitent privilege -- decided it on his understanding of the First Amendment, of the Free Exercise Clause," Father Kimes commented. "The free exercise of religion, he says, demands that the internal ordinances of the religion also be respected externally in civil law."

Perspective concerning modern-day abuse cases is also important, said Father Kimes.

"If you talk to victim survivor groups, they will say that a reasonable number of victims bring this concern to confessions, because they are manipulated into thinking that it's their fault," he explained. "And so they bring it to confession as if it were a sin that they had committed."

"It's very much not the case that the priest who's doing this is going to another priest and saying, 'I did this, give me absolution.' If that happens, it would be exquisitely rare," he qualified. "In all of the cases of sexual abuse of minors that I have had to deal with -- which are considerable -- I have never seen any evidence of a case of a priest hearing the confession of a perpetrator."

Father Kimes isn't certain this is fully recognized by legislators.

"Whether they understand or not, I don't know -- but they certainly misrepresent the reality of the sacrament being used to protect perpetrators," he emphasized. "Instead, it's victims who are seeking absolution because they have psychologically adopted the viewpoint that it's somehow their fault."