QUOTED: Eric Kniffin in the Washington Examiner on Threats to Religious Freedom

March 6, 2023 | Washington Examiner

On March 2, Fellow Eric N. Kniffin of the HHS Accountability Project spoke to the Washington Examiner about bills currently under consideration in the Washington and Vermont legislatures would make all clergy in the state mandatory reporters of sexual abuse and would remove so-called clergy-penitent privilege, which otherwise exempts religious ministers from reporting anything that is heard in confession. Eric submitted public comments in Vermont and Washington on these bills.

The provisions of the Washington House bill alarmed First Amendment lawyer and Ethics and Public Policy Center fellow Eric Kniffin, who urged the Washington House to amend HB 1098 to include protections for clergy-penitent privilege in a Feb. 24 letter that noted removing the privilege would likely lead to legal challenges. The bill is currently in its second iteration; the original measure protected clergy-penitent privilege, while the second does not.

“By explicitly overruling the clergy penitent privilege, while leaving the attorney client privilege untouched, Washington State would go where no state has gone before, setting the state up for a civil rights lawsuit I am confident it would lose,” Kniffin wrote. “While I applaud the legislature’s desire to protect children and strengthen the State’s mandatory reporter law, this is not the best way to advance the State’s interests in protecting children and bringing sexual predators to justice.”

A similar bill that unanimously passed the Washington Senate on Tuesday did include protections for clergy-penitent privilege.

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In an interview with the Washington Examiner, Kniffin said the efforts in Vermont and Washington follow a failed attempt by California in 2019 to enact a similar law requiring priests to violate the confessional seal for abuse cases.

“There’s a huge variety [of opinion] within the church, but if you want to talk about something that’s going to unify people, [it’s] that confession is off limits, that’s something that everyone understands,” Kniffin said. “There are priests who have died rather than violate the seal of the confessional. You’re not going to succeed in getting priests to turn state’s evidence on what they hear in the confessional.”

Kniffin noted that while the Catholic Church’s well-documented history of covering up clerical child sex abuse may offer the motivation for requiring priests to break the seal of confession, no investigative body has ever pointed to removing the legal protections for clergy-penitent privilege as a viable policy to address the problem.

“It’s also really important to note that there have been at least 12 grand jury or attorney general reports, hundreds and hundreds and hundreds of pages documenting so many cases, and not one of them points to the confession as a contributing factor, not one of them has recommended getting rid of this privilege,” Kniffin said. “My sense is there’s a disproportional thing that sort of says, ‘There’s been abuse in the Catholic Church, we want to protect kids, and if we close this privilege, they would be safer.’ But they’re not thinking about what that would do to Catholics.”

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