lundi 8 août 2016
Unholy Secrets: The Legal Loophole That Allows Clergy To Hide Child Sexual Abuse.-
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*, Charlet bombarded her with emails “laced with seductive nuances” over the course of a summer, slowly escalating his inappropriate advances before ultimately kissing and fondling her.
As if the abuse wasn’t 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.
Instead, she fled to the person she thought she could trust the most: Father Jeff Bayhi, her parish priest.
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, “obsessive” phone calls, and Charlet saying he “wanted to make love to her” before inappropriately touching her.
“Rather than help Mayeux, her lawyers say the priest told her simply to move past the abuse, suggesting she ‘sweep it under the floor and get rid of it.’”
But rather than help Mayeux, her lawyers say the priest told her simply to move past the abuse, suggesting she “sweep it under the floor and get rid of it” because “too many people would be hurt” 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.
Mayeux’s 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 “mandated reporters” in the state of Louisiana — that is, people in leadership positions who are legally required to report knowledge of child abuse to authorities.
But the diocese, which declined to comment for this story, did not accept blame or even move to condemn Bayhi’s behavior; rather, they rushed to his defense. They pointed to an obscure exemption in Louisiana law: According to the state Children’s Code, clergy do not have to disclose information about child abuse if it is revealed during church-sanctioned “confidential communication” — in 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 “seal of confession” and violate his religious liberty. In fact, he could not even confirm that a confession happened, as doing so would also violate the seal.
Moreover, they contended that Mayeux should also not be allowed to testify about the cloistered conversations, as Bayhi — bound by his priestly vow to never reveal what is discussed in confession — would be unable to testify in his own defense. To do so, they said, would mean his automatic excommunication from the Catholic Church.
Mayeux’s 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 — that 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 — which are often never reported — will be conveyed to authorities.
The dispute is equal parts legal and theological, and has major implications for the more than 30 states with similar “religious liberty” laws exempting clergy from mandatory reporting during confession. At a time when star-studded films such as Doubt and Spotlight 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 — and if they should be changed.
The uneven history of ‘clergy-penitent privilege’
Mayeux’s case resurrects an old debate over a little-known — but heavily protected — legal concept known as “clergy-penitent privilege.” 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’s attorneys posited that any law forcing Bayhi or other priests to reveal things said in confession — even if it includes child abuse — “gravely violates” the principle of religious freedom, specifically a Louisiana’s understanding of clergy-penitent privilege.
They certainly have precedent on their side. Clergy-penitent privilege, sometimes called “priest or pastor-penitent privilege,” in the United States 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’s highest court, with former U.S. Supreme Court Chief Justice Warren E. Burger declaring in 1980 that certain clerical conversations are off limits.
“The 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,” Burger wrote.
Indeed, shields for clergy-penitent conversations are typically more “absolute” 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.
The concept began to impact child abuse as early as 1990, when California passed a law that named clergy as mandated reporters for child sexual abuse but also included an exception for information learned during a “penitential communication,” or conversations in which a religious leader “has a duty to keep those communications secret.”
“Clergy, like social workers and teachers and doctors, if they see abuse anytime, anywhere, it ought to be disclosed.”
Although trailblazing at the time, California was eventually joined by several other states after the Boston Globe’s “Spotlight” team published their Pulitzer Prize-winning investigation 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.
By early 2002, they had found a possible solution: crafting their own version of California’s law naming clergy as mandated reporters. But the bipartisan effort suddenly stalled 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.
“Clergy, like social workers and teachers and doctors, if they see abuse anytime, anywhere, it ought to be disclosed,” then-state senator Cheryl A. Jacques said at the time.
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’s House of Representatives in January 2002, Nancy S. Taylor — president of the Massachusetts Conference of the United Church of Christ — urged legislators to vote against it.
“While upholding confidentiality as a general principle, it should not be used to protect criminals, or criminal behavior, at the expense of innocent victims,” she wrote, according to the New York Times.
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 — with the exemption intact.
Dozens of other states soon followed suit, passing laws listing faith leaders as mandated reporters while also providing various permutations of California’s confession carve-out. As of 2015, 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.
Ironically, these exemptions appear tone deaf to a crucial detail of the “Spotlight” article that triggered their creation: Many of the abuses doled out by priests in Massachusetts happened during confession.
Mitchell Garabedian, a legendary child abuse lawyer who played a key role in helping the Boston Globe’s “Spotlight” 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 “on multiple occasions.” 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.
“The crimes are endless,” Garabedian said.
When asked about Mayeux’s case — where the abuser wasn’t a priest, but was allegedly protected by a priest who refused to violate the seal of confession — Garabedian was unequivocal: The child’s safety should come first.
“When children are at risk of being abused in any instance, confessional should not be used as a shield to protect the abuser,” he said. “The safety of children should take priority.”
‘Religious liberty’ vs. anti-abuse advocates
Despite early warning signs, confession carve-outs have gone largely unchallenged since the early 2000s. But the dramatic nature of Mayeux’s 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.
“The diocese argued that this statute requiring Father Bayhi to be a mandatory reporter infringes on his free exercise of religion,” Brian Abels, Mayeux’s lawyer, said.
But child rights advocates say mandatory reporting laws are needed to protect children, and that community leaders — especially clergy — should take their responsibility seriously. Cathy Townsend, the National Strategy Manager for Darkness to Light — the largest anti-child abuse advocacy organization in the country — told 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.
“Reporting abuse is very traumatizing for many children — particularly when it’s not handled well,” she said. “It just compounds the problem.”
If true, Mayeux’s story is a textbook example of how failure to report can not only traumatize victims, but also cause more harm.
“After the first time she went to confession, there were more instances of abuse after that,” Abels said. “One of the worst instances of the abuse happened after she went to confession.”
Mayeux’s 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 for the Louisiana Law Review blasting the clergy exemption in Mayeux’s case and suggesting an amendment to the Louisiana constitution. She argued any residual impact of the change on Catholic confession “is merely an incidental effect of the law.”
“I understand it’s within the Catholic confessional, but when a child comes forward with that sort thing, you can’t just ignore it. You have a moral compulsion to take some kind of action.”
She repeated her position earlier this year in an interview with ThinkProgress.
“When you have a child who has been abused — they feel a lot of shame,” Taylor said. “It takes great courage to tell anybody what’s going on. I understand it’s within the Catholic confessional, but when a child comes forward with that sort thing, you can’t just ignore it. You have a moral compulsion to take some kind of action.”
“I completely understand the other side — this is not an easy issue,” she added, noting that two of her uncles are priests. “It certainly would create problems within the Catholic Church. But I also think that the protection of children who are being abused — the worst thing you can imagine — needs to take priority over that.”
This same argument — that protections for religion should have limitations, at least in cases of sexual abuse enacted against minors — was also voiced by Mayeux’s lawyers.
“We understand [religious freedom] is a constitutionally protected right, but all of our rights give way in certain circumstances — there is always a limitation, especially regarding child sexual abuse,” Abels said.
A (false) theology of secrecy?
Mayeux’s case has been waged in the courts, but it has also sparked a debate among Catholic theologians. Bayhi’s 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 the seal “admits of no exceptions.”
Thomas Reese, a Jesuit priest and former editor-in-chief of the Catholic magazine America, 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.
“If a priest broke the seal of confession, he would not be allowed to act as a priest,” Reese said. “He would be charged with a canonical crime. It’s the greatest ecclesiastical crime he could commit.”
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.
“Knowingly? Absolutely not,” Bayhi said. “If that’s not sacred, no one would ever trust us.”
“If the penitent says the priest can reveal what he heard in confession, then he can.”
But Reese and other canon law experts say the problem isn’t so cut and dry. Reese penned an extensively researched article for the National Catholic Reporter in February 2015 arguing that “the weight of theological and canonical opinion supports the right of penitents to allow their confessor to reveal what they told him in confession.”
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 “a disputed question,” most canonists believe clergy should be free to testify if the penitent wants to publicly discuss the content of a confession.
“The majority of canonists appeared to side with the idea that confession is to protect the penitent,” he said. “Therefore, if the penitent says the priest can reveal what he heard in confession, then he can.”
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’ 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 — where bishops and other superiors aren’t allowed to know what transpired in a priest’s confession booth — makes the practice extremely difficult to police.
“Here again the church faces an impossible dilemma: How can it supervise the work of confessors without knowing what is said in confession?” Reese wrote.
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.
“We’ve heard rumors over the years,” Clohessy said. “Say ‘Father A’ molests kids, but fears that ‘Father B’ 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.”
Not just a Catholic problem
The 2001 “Spotlight” 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 — where a parishioner, not the priest, is the perpetrator — are common. In addition, abuse levels may even be higher among Protestant Christians.
“Some preliminary studies have indicated that more children are sexually abused within Protestant faith communities than Catholic faith communities,” 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).
Unsurprisingly, Protestants and other faith groups are also impacted by confession carve-outs, although usually in different — but no less problematic — ways 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 “official” doctrine resembling Catholic confession, and others are simply too vague to draw conclusions either way.
“It’s not just Louisiana that is having a problem,” Townsend said. “Other states also aren’t quite sure how to handle it either. A lot of the legislation is just not particularly well-written.”
“I’ve talked to pastors who were told about abuse by a victim [or perpetrator] and they felt like, ‘Well that confession is privileged so I can’t report it.’ Which is crazy.”
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 — falsely — that they aren’t required or even allowed to.
“I do think there are a lot of situations where offenders could be identified and stopped, and they haven’t, because too many pastors are under the mistaken belief that clergy privilege prevents them from reporting the offense to the police,” Tchividjian said. “I’ve talked to pastors who were told about abuse by a victim [or perpetrator] and they felt like, ‘Well that confession is privileged so I can’t report it.’ Which is crazy. Such a misunderstanding of the law can contribute to the revictimization of vulnerable children.”
Tchividjian also said abusers can often manipulate this legal confusion to their advantage, transforming churches and and other faith communities into a “very safe place for offenders.”
“All they have to do is communicate to the pastor, and the pastor believes that his or her hands are tied,” he said.
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 for repeatedly sexually assaulting young boys in the congregation. Although Morales’ 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.
Attorney: As a pastor, when you become aware of sexual child abuse, did you have a responsibility to report that to the police department? That’s a yes or no.
Layman: I believe so.
Attorney: And you didn’t do it.
Layman: No, sir.
The information seemed to aid a class-action lawsuit filed by several parishioners against seven CLC pastors, accusing them of covering up Morales’ crimes. But the possible admission of guilt likely wouldn’t matter: Although the suit was eventually dismissed on other technicalities, it was also filed in Maryland, where state law includes a confession carve-out for child abuse that extends to Protestant pastors like Layman.
Unanswered questions in Baton rouge
Eight years after her alleged abuse, Mayeux’s case remains entangled in the Louisiana court system. Lawyers are hopeful they can bring it to trial by 2017, but judges continue to debate the legality and scope of the state’s confession carve-out, bouncing the case between different rungs of the state and federal legal system (the U.S. Supreme Court declined to review the case in January 2015).
The case also suffered a major setback in February. Just one week after the film Spotlight won the Academy Award for Best Picture, the 19th Judicial District Court declared unconstitutional the provision requiring clergy to report child abuse claims heard during confessional.
“If the story is true, then the priest clearly failed in his duties.”
Frustrated but not defeated, Abels was quick to note that they won a small victory in late July, when a Court of Appeal panel court dismissed the diocese’s argument that Mayeux should not be allowed to testify. He also says they may also appeal the February ruling, possibly by charging that this kind of clergy-penitent privilege violates the establishment clause of the U.S. Constitution by unfairly benefitting a specific religious group — or religion in general.
In the meantime, child abuse experts such as Tchividjian remain outraged that these kinds of cases exist in the first place. GRACE and other groups strive to train and educate clergy about mandatory reporting laws, but say the real question should be moral, not legal: Even with the confession carve-out in place, Tchividjian said, a pastor’s faith should compel them to choose the safety of a child over the possibility of losing their own job.
“It may be that the confession cannot be introduced at trial, but that’s not [a pastor’s] concern — because their concern should be the protection of a vulnerable child,” he said. “Even if the case ends up getting dismissed because that confession is deemed inadmissible, your actions of reporting the confession may have very well saved the life of a little one.”
Reese argued similarly that if Bayhi really did, in fact, ignore Mayeux’s pleas, then it’s not just confession carve-outs but priestly duty — and Christian obligation — that is in question.
“If the story is true, then the priest clearly failed in his duties,” he said. “The priest should have encouraged the child to talk to their parents, or talk to the priest outside of confession — or somebody who is required to report this.”
Back in Louisiana, however, Bayhi and the diocese appear to be more focused on defending religious liberty than clarifying spiritual duty. As Bayhi left the courthouse after the judge reaffirmed his exemption from mandatory reporting laws in February, he celebrated his win in front of reporters, declaring the decision a victory for all people of faith.
“We’re just always happy when the court upholds religious liberties,” he said.
———————* Although ThinkProgress typically does not name possible abuse victims, Mayeux has gone public with her story, and gave our writer permission to use her name in this article.