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Delaware judge: priest-penitent privilege may be unconstitutional

February 04, 2016

A Delaware superior court judge has questioned the constitutionality of a state law that protects the secrecy of sacramental confession.

State law mandates the reporting of suspected child abuse except in cases covered by the attorney-client privilege and conversations “between priest and penitent in sacramental confession.”

Ruling in a case involving the failure of elders of the Jehovah’s Witnesses to report child abuse, Judge Mary M. Johnston said that if “priest,” “penitent,” and “sacramental confession” are interpreted narrowly, then the law is unconstitutional because its “effect would be to advance certain religions over others.”

If, however, the law were interpreted broadly to include confidential conversations in which members of any religious body express sorrow for their deeds to their religious leaders, then a ruling that the law is unconstitutional could be avoided, Judge Johnston said in her January 26 decision.

“A broader reading may be justified because the terms at issue are neither defined nor upper case,” she added.

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  • Posted by: vjenkins78814 - Feb. 05, 2016 1:37 PM ET USA

    Most states/courts accept the secrecy of the confession. The priest could/should give the penitent the penance of turning themselves in to the authorities. St. John Nepomocene was martyred for not disclosing the queen's confession.

  • Posted by: unum - Feb. 05, 2016 11:35 AM ET USA

    Article I "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" The only obligation of a church is to establish that an action is a "free exercise" of its religion. The Constitution says nothing about the equality of religious practices. In fact, government action to equalize religious practices would clearly violate the "free exercise" clause.

  • Posted by: Gregory108 - Feb. 04, 2016 11:28 PM ET USA

    You can't force someone to put his neck in the noose as a condition of absolution, as best I know. I once argued with my pastor about this. He said yes, I said no. He told me that if I came to his confessional and confessed I killed someone, that would be my penance. I asked the bishop, who thought I was speaking of an actual case. He turned pale and asked me, "Is this happening somewhere?" I assured him that this was only a discussion between me and the pastor, and the bishop's color returned.

  • Posted by: Don Vicente - Feb. 04, 2016 11:02 PM ET USA

    The priest could urge the penitent, but could not coerce him (or her).

  • Posted by: Jim.K - Feb. 04, 2016 6:32 PM ET USA

    No, but perhaps as a condition of not being accused of a crime.

  • Posted by: loumiamo - Feb. 04, 2016 6:17 PM ET USA

    Historically the reason y only Catholic confessions were recognized as sacrosanct is because the Church has always said they were sacrosanct. All other religions have rejected the idea that a priest could possess a higher calling that gives him this special status. Now a judge is saying other religions have the same characteristics as the Catholic Church when all along those religions have rejected all things Catholic? Guess that's 1 way to achieve Christian unity.

  • Posted by: garedawg - Feb. 04, 2016 9:43 AM ET USA

    Question: would a priest, upon hearing someone confess a crime, require turning himself in to the lawful authorities as a condition of absolution?