‘Clergy privilege’ study shapes bill on protecting abused children

Research studying “clergy privilege” by UB School of Law Associate Professor Christine Pedigo Bartholomew heavily influenced legislation proposed by Assembly Member Monica Piga Wallace to add clergy to the list of people in jobs required to report suspicions of child abuse.

Bartholomew studied clergy privilege – the legal rule shielding confidential communications of priests and clergy – and found priests often wanted to divulge information concerning sensitive encounters about people confessing crimes, helping law enforcement find justice for crimes.

But when it came to accusations of sexual abuse against members of their fellow clergy, these priests often tried to find a way to withhold this information from law enforcement officials, citing their clergy privilege, according to Bartholomew’s study.

Bartholomew’s extensive research reviewed every opinion on clergy privilege from the early 1800s to 2016, the first time a legal scholar examined and recorded every opinion on clergy privilege.

Wallace consulted Bartholomew and used her research when developing her Child Abuse Reporting Expansion (CARE) Act.

The CARE Act adds members of the clergy to the long list of professionals who are mandated reporters, required by law to report to authorities any information about child abuse or maltreatment that they learn in the course of their work.

The obligation to report this information under the CARE Act would take precedent over ethical guidelines and state law to maintain confidentiality about conversations with communicants.

“We realized there was a need to supplement the (recently passed) Child Victims Act,” says Bartholomew, who appeared with Wallace at the assemblywoman’s press conference announcing the proposed CARE Act legislation March 15. “And that’s what the CARE Act intends to do.

“It allows clergy to report abuse, freeing clergy who want to do the right thing to protect children. It also avoids potential gamesmanship. Making clergy mandatory reporters means little if they can continue to hide behind the clergy privilege.”

Wallace – a 1994 graduate of the UB School of Law -- developed her CARE Act legislation after studying Bartholomew’s extensive research into clergy privilege. Bartholomew said Wallace also relied on additional work of UB School of Law student Colleen Roberts, who now works in Wallace’s office.

Bartholomew’s research, which reviewed every judicial decision testing the limits of clergy privilege, was the first comprehensive analysis of such case law.

In looking at more than 700 cases in federal and state courts, she found that clergy members struggled with what to do when troubling information about child abuse came up in conversation with members of their congregations.

“Increasingly,” she says, “clergy were recharacterizing confidential conversations to take them out of privilege, so they could testify about them. For example, they might assert that the information arose in an offhand conversation and not the privilege-protected sanctity of confession or spiritual counseling.”

But Bartholomew found an exception. When clergy had information about another clergy member who was abusing a child, “they tended to try to push the privilege to make it much more expansive.”

Clergy privilege is one of the oldest grounds in U.S. law for protecting otherwise relevant information from use in a legal proceeding.

For over a century, Bartholomew wrote in her research paper, scholars and judiciary officials have assumed a “generous protection” of this clergy privilege is necessary to “foster and encourage spiritual relationships.” The findings from Bartholomew’s study question that long-standing assumption made by scholars and the judiciary.

After analyzing legal decisions on the clergy privilege issue, Bartholomew found the privilege “in decline.” Courts have lost faith in this privilege,” she writes, “and so have clergy.”

“For decades, clergy have recast communications to ensure they fall outside testimonial protection,” intending to make what they knew through confessions or other conversations available to law enforcement officials, Bartholomew says. This willingness to cooperate, “(challenges) how essential confidentiality actually is to spiritual relationships.”

But when Bartholomew looked more closely at these 700 legal decisions involving clergy privilege, she found the pattern of priests and clergy looking for ways to divulge important information about crimes reversed itself when the accusations were about the sexual misconduct of their colleagues.

“Many churches raised clergy privilege objections to shield communications by alleged clergy perpetrators to their superiors and fellow priests,” Bartholomew wrote. “These cases reflect a self-interested interpretation of the privilege, where clergy claimed virtually every document between a cleric and superior was privileged.”

The proposed CARE legislation, Bartholomew says, makes it a clear-cut decision for clergy faced with such terrible knowledge: No matter the context in which the information was disclosed, they not only have the law’s permission to pass it on to authorities, but an obligation to do so.

Bartholomew said when she wrote the paper, she had “deep hopes” abuse issues were “a thing of the past.”

“This research was intended to be historical,” Bartholomew said.  “The research was searching for an understanding of how courts interpreted the privilege in the past. My findings on the distortion of the privilege in clergy abuse cases was a disturbing, surprise finding.”

Recent events, particularly the string of accusations against Catholic priests in the Buffalo Diocese and throughout the country, prove child abuse is as relevant and damaging as ever, according to Bartholomew.

Wallace’s proposed legislation, the professor says, would add another layer of protection for children at risk: “This would ensure that things don’t slip through the cracks in the Child Victims Act,” Bartholomew said.

Buffalo Catholic Bishop Richard Malone has already spoken out against the CARE Act’s proposal. While the Bishop is open to making clergy mandatory reporters, he opposes having reporting obligations trump assertions of privilege.

Soon after Wallace’s press conference, the Bishop issued a statement: “The faithful have the right to expect total confidentiality when they confess their sins and seek God’s forgiveness. History gives evidence that priests have accepted death rather than violate the seal of confession.”

Bartholomew questions the accuracy of that interpretation.

“It is unfortunate that the initial response to the CARE Act is a continued push to shield potential information about abuse,” Bartholomew said. “Surely, there have been instances of clergy refusing to share confessions. However, in reviewing privilege cases, I found that clergy—including Catholic priests—have shared confessions in many instances.

“In doing so, clergy are not acting nefariously. Rather, they are often guiding people of faith towards repentance or aiding the interests of justice. The seal of confession, thus, is neither absolute nor inviolable in actual application.”