Oct. 22, 2014
By Julie Love Taylor, Senior Associate
By now, most Americans are familiar with the Catholic Church’s sexual abuse scandal, in which the Church has been criticized for its handling—or rather, mishandling—of priests who sexually abused minors. Recently, Catholics in Louisiana were reminded of this scandal but with a slightly different twist. In April 2014, the Louisiana Supreme Court issued a decision involving alleged sexual abuse—not by a priest, but by a church parishioner—and a priest’s failure to report that abuse. The Supreme Court’s holding potentially opened the door to a sticky situation: Can a court compel a priest to break the seal of confession when the penitent is a minor alleging sexual abuse.
I. The Supreme Court Case: Parents of Minor Child v. Charlet
In 2008, 14-year-old Rebecca Mayeux reached out to Fr. Jeff Bayhi, a priest in the Diocese of Baton Rouge, Louisiana, through the Sacrament of Confession. According to the petition, Mayeux revealed to him that George J. Charlet, Jr., a 64-year-old fellow parishioner, sexually abused her. Charlet, a well-known and active parishioner of Our Lady of Assumption in the Diocese of Baton Rouge, allegedly sent Rebecca emails “laced with seductive nuances” and ultimately kissed and fondled her.
Rebecca met with Fr. Bayhi on three separate occasions, confiding in him that Charlet “inappropriately touched her, kissed her, and told her that ‘he wanted to make love to her.’” Fr. Bayhi allegedly told Rebecca that the situation was “her problem” and to “[s]weep it under the floor and get rid of it.” Subsequent to Fr. Bayhi’s dismissal of Rebecca’s pleas, the abuse allegedly continued.
In 2009, Rebecca’s parents, the plaintiffs in the case, filed a petition for damages that named multiple defendants: Charlet, Fr. Bayhi, and the Roman Catholic Church of the Diocese of Baton Rouge. The plaintiffs named Charlet as the alleged abuser, Fr. Bayhi for failing to report the abuse allegations, and the Diocese of Baton Rouge as vicariously liable for Fr. Bayhi’s inaction. The Church filed a motion in limine seeking to prohibit the plaintiffs from “mentioning, referencing, and/or introducing evidence at trial of any confessions that may or may not have taken place” between Mayeux and Fr. Bayhi.
The trial court denied the motion, finding that Rebecca’s testimony was relevant. The court of appeals reversed and granted its own peremptory motion of no cause of action, holding that Fr. Bayhi was not a mandatory reporter and that Rebecca, therefore, had no cause of action against him for failure to report.
On writs, the Louisiana Supreme Court reversed the court of appeal’s decision, permitting Rebecca to testify about her conversation with Fr. Bayhi during the confession. In its decision, the Supreme Court relied on Louisiana Code of Evidence article 511, which states: “A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.” The Supreme Court noted that the privilege “clearly belongs to the penitent–communicant, not to the priest.” In other words, Rebecca, as the penitent, had the right to waive her privilege, regardless of whether Fr. Bayhi objected.
The Louisiana Supreme Court ultimately remanded the case to the district court to determine if there were other conversations made outside of confession that would have required Fr. Bayhi to report the allegations as a mandatory reporter.
II. What exactly does the Catholic Church Teach About the Seal of Confession?
According to Canon 983, “The sacramental seal is inviolable; therefore, it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” Fr. Jim Brady—a priest and former attorney who studied canon law at Catholic University—explained that “an environment that encourages complete honesty, that is, knowing that one’s sins will not be used against their interest outside of confession, is critical.”
The seal serves not only to protect the penitent but also to protect the broader sanctity of the Sacrament of Confession and of future penitents. As Fr. Brady noted: “Violation of the seal, regardless of whether permission is given by a penitent, might weaken the confidence of the faithful of the inviolability of the seal, and thus discourage them from going to Confession.” According to Fr. Brady, the seal cannot be broken even in the most compelling circumstances, such as when a minor allegedly confessed about acts of sexual abuse against her.
III. Implications of the Decision
Although the decision only dealt with whether Mayeux—the penitent—could testify about conversations held in the Sacrament of Confession, many within the Catholic Church are worried that this might open the door to compelling Fr. Bayhi to testify, which could jeopardize the sanctity of confession.
If the court compelled Fr. Bayhi to testify on remand, he would be faced with a difficult decision. He would either have to break his oath to the Church and risk excommunication by testifying about what occurred in the confessional with the plaintiff, or he could refuse to testify and be held in contempt of court and possibly imprisoned. If the district court does not compel Fr. Bayhi to testify, then the court must just take Mayeux at her word. This is arguably unfair to Fr. Bayhi, who would not get the chance to defend himself.
There is, of course, a third possibility. If the court finds that no conversations regarding Mayeux’s abuse took place outside the realm of confession, then the court might dismiss the case altogether for no cause of action.
But it is the first possibility—the court requiring Fr. Bayhi to testify—that worries Catholics. When asked whether this decision threatens the sanctity of confession, Fr. Jim Brady believes that in one sense it does not, because no “priest is going to violate the seal of Confession, regardless of what any civil court would order.” But on the other hand, he is concerned that it could threaten the sanctity of confession “in the sense that it might interfere with the free practice of our faith and discourage the faithful from seeking God’s Grace in the Sacrament of Confession.”
IV. Possible Solution
Is there a viable solution that gives Mayeux her fair day in court without running afoul of the First Amendment? One remedy would be to amend Louisiana’s Code of Evidence to require priests to disclose sexual abuse when revealed to them by a minor, regardless of when the conversation occurred.
In passing such an amendment to the Code of Evidence, the justification for upholding its constitutionality could be based on the rationale used in Employment Division v. Smith. In this landmark United States Supreme Court case, two members of the Native American Church were fired from their jobs as drug rehabilitation counselors for ingesting peyote, a drug used for sacramental purposes within their Church. Furthermore, they were denied unemployment compensation for having been fired due to misconduct related to their jobs.
Although the petitioners argued that such a denial conflicted with the First Amendment’s Free Exercise Clause, the Supreme Court ultimately upheld the denial of unemployment benefits. The Court justified its holding by explaining that “if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” In such a case, the right of free exercise does not permit an individual to refuse to comply with a valid law.
The Louisiana state government could make a similar argument. The important public policy of protecting minors could arguably be strong enough to uphold a law mandating priests to disclose alleged sexual abuse by a minor. It would, of course, conflict with the Catholic Church’s inviolability of confession, but that conflict is merely an incidental effect of the law. This is permissible under Employment Division v. Smith.
We do not know whether Mayeux was actually sexually abused, nor do we know if she actually said as much to Fr. Bayhi during confession. What we do know, however, is that it takes immense courage for a child to come forward and report sexual abuse. If what Mayeux alleged is true and Fr. Bayhi did indeed tell her to “[s]weep [the sexual abuse] under the floor,” then he only perpetuated her abuse and contributed to her feelings of shame. There must be some kind of remedy for children like Mayeux that desperately seek out help in their darkest hour only to be met with resistance and indifference. Amending Louisiana’s Code of Evidence to require disclosure of alleged sexual abuse does not erase what happened, but it does help to prevent further abuse. This is a start.
 See, e.g., David A. Love, The Catholic Church: A Safe Haven for Criminals?, Huffington Post (May 25, 2011, 4:00 PM), http://www.huffingtonpost.com/david-a-love/catholic-church-criminal_b_520930.html, archived at http://perma.cc/3ZW8-35EM; Bill Berkowitz, The Catholic Church’s Worldwide Sexual Abuse Scandal and Cover-Up, Buzzflash (Mar. 4, 2013) http://www.truth-out.org/buzzflash/commentary/the-catholic-church-s-worldwide-sexual-abuse-scandal-and-cover-up/17838-the-catholic-church-s-worldwide-sexual-abuse-scandal-and-cover-up, archived at http://perma.cc/L4BF-9ZM3.
 See generally Parents of Minor Child v. Charlet, 135 So. 3d 1177 (La. 2014).
 Id. at 1178. Although Rebecca Mayeux was a minor at the time her parents filed suit, she subsequently revealed her name. See, e.g., Chris Nakamoto, The Investigative Unit: From Confessional to Court, WBRZ (July 9, 2014, 1:47 PM), http://www.wbrz.com/news/the-investigative-unit-from-confessional-to-court/, archived at http://perma.cc/WLP4-W2HP.
 Charlet, 135 So. 3d at 1178.
 Id. at 1178–79.
 Id. at 1179.
 Id. at 1178.
 Id. at 1179.
 Id. at 1180; La. Code Evid. Ann. art. 511.
 Charlet, 135 So. 3d at 1180.
 Id. at 1181.
 See Code of Canon Law, Canon 983, at §1, available at http://www.vatican.va/archive/ENG1104/_P3G.HTM, archived at http://perma.cc/BG4K-57JA.
 E-mail from Fr. Jim Brady, Pastor at St. Landry’s Catholic Church in Opelousas, LA, to Julie Love Taylor, Senior Associate, Louisiana Law Review (Sept. 4, 2014, 12:54 PM) (on file with author).
 Fr. Jim Brady explains that:
The Church, both as a party and the steward of the Sacraments, has an interest in their proper administration. In the case of Confession, the Church has an interest in the seal that should be protected. Therefore, it is not the right of the penitent to give permission to a minister of Church to violate the seal of Confession.
 See generally Charlet, 135 So. 3d 1177.
 See, e.g., Fr. Gerald E. Murray, Unsealing the Seal of Confession, The Catholic Thing (July 24, 2014), http://www.thecatholicthing.org/columns/2014/unsealing-the-seal-of-confession.html, archived at http://perma.cc/T93C-6MME (remarking that this decision poses “[a] particularly serious threat to the religious liberty of the Catholic Church in the United States”); Sabrina Wilson, New Orleans Catholics Weigh In On Confession Controversy, WBTV (July 15, 2014), http://www.wbtv.com/story/25970836/new-orleans-catholics-weigh-in-on-confession-controversy, archived at http://perma.cc/F68K-WXJS. After the Supreme Court issued its decision, the Diocese of Baton Rouge, to which Fr. Bayhi belongs to, issued its own statement attacking the decision. “The issue as it relates to the ‘Church defendants’ (Fr. Bayhi and the Diocese of Baton Rouge) attacks the seal of confession . . . ,” and “the Louisiana Supreme Court assaults the heart of a fundamental doctrine of the Catholic faith as relating to the absolute seal of sacred communications (Confession/Sacrament of Reconciliation).” Official Statement of the Diocese of Baton Rouge With Respect To Supreme Court of Louisiana Docket No. 2013-C-2879; Court of Appeals – First Circuit, Docket No. 2013-CW-0316, Diocese of Baton Rouge (July 7, 2014), http://www.diobr.org/index.php?option=com_content&view=category&layout=blog&id=17&Itemid=182, archived at http://perma.cc/T93C-6MME.
 The plaintiff’s attorney has stated that they are not seeking Fr. Bayhi’s testimony. Heidi R. Kinchen, Legal Battle Pits Law Against Church, The Advocate (July 17, 2014), http://theadvocate.com/home/9706880-125/in-confidence, archived at http://perma.cc/48H9-9L85. Thus, unless the court calls Fr. Bayhi as a witness, it is unlikely that this will occur.
 See supra note 20.
 E-mail from Fr. Jim Brady, Pastor at St. Landry’s Catholic Church in Opelousas, LA, to Julie Love Taylor, Senior Associate, Louisiana Law Review (Sept. 4, 2014, 12:54PM) (on file with author).
 See generally Employment Div. v. Smith, 494 U.S. 872 (1990).
 Id. at 874.
 Id. at 890.
 Id. at 878.
 The Court further explained that “[t]he government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’” Id. at 885.
 Id. at 878.
 Parents of Minor Child v. Charlet, 135 So. 3d 1177, 1178–79 (La. 2014).
 See, e.g., Barbara Wilson, Past Abuse: Why Do I Feel This Way?, Retirement with a Purpose, http://powertochange.com/family-life-canada/abuse-feel-this-way/, archived at http://powertochange.com/family-life-canada/abuse-feel-this-way/.