privileged communications

By Diogenes ( articles ) | Nov 24, 2003

The Archdiocese of Los Angeles is fighting to keep personnel records from being turned over to a grand jury investigating sexual abuse.

Lawyers for the archdiocese say their effort is not a cover-up, but rather a simple matter of law. They are asserting a First Amendment privilege of freedom of religion, an extension of priest-penitent confidentiality to cover communications between priests and their superiors, and adherence to the grand jury process that mandates secrecy. The archdiocese's attorneys characterize the legal battle over the church documents as "religious persecution."

"The relationship between priest and church is a familial relationship, such as the husband-wife privilege. It goes to the heart of the ability to function as a church that has a celibate priesthood," archdiocese attorney J. Thomas Hennigan said. "These men, otherwise isolated from society, need a place to be able to discuss their innermost problems that is secure. It's not an effort to protect pedophiles."

In the many thousands of pages of documents that became public in the case of the Archdiocese of Boston, was there a single instance of a communication that approximates confessional secrecy -- a letter, e.g., in which a priest writes, "Archbishop, I am asking that you find help for me in overcoming difficulties in the following area of personal weakness..."? Apart from the archbishop's notoriously sympathetic valedictory letters to retired abusers, did the archived correspondence betray anything close to familial intimacy?

Perhaps it did, but if so the edifying documents were never scrutinized. The unmistakeable impression left by the communications we have seen -- including the e-mails between Cardinal Mahony and his associates that were hacked last year -- is that of calculated managerial aloofness.

The problem is that confidential communications are often necessary -- wholly apart from confessional matters. To give just one example, the U.S. bishops have consistently (and properly) defended the right to marry of persons canonically free to do so. In cases where one of the parties is an illegal alien, and application for a civil license would mean deportation, the sacramental marriage can be effected clandestinely -- out of the view, that is, of civil authority. And of course the clandestine marriage must be recorded.

But if confidentiality is forfeited, such marriages are no longer clandestine. One would be proud to be a Catholic if a bishop were to say, "I prefer to go to jail for contempt of court rather than make our records public," and then the records revealed not priestly wrongdoing but priestly solicitude, e.g., for the marriage of illiterate farm laborers. But it would be an abomination if a bishop were to invoke clerical privilege cynically and in bad faith in order to protect active gays from public odium and himself from prosecution, and then -- once the lies were exposed and the privileges lost -- the Church were crippled in fulfilling her spiritual mission.