Published February 24, 2023
These bills would do two things to bring Washington State’s mandatory reporter law in line with the vast majority of states: first, they would make clergy mandatory reporters for child abuse and neglect; second, they would ensure that the legal duty to report does not infringe on a Catholic priest’s solemn vow to never—even upon pain of torture of death—reveal what a penitent confesses in the sacrament of penance.
If Substitute House Bill 1098 (SHB 1098) was enacted, it would make Washington State’s mandatory reporter law the most radical in the country. 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.
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. For the reasons set out in the analysis below, SBH 1098’s attack on religious exercise is unwarranted, unprecedented, and unconstitutional.
The memorandum focuses on five major points:
- The Catholic Church in the United States and in Washington State is committed to preventing and reporting child abuse;
- The absolute confidentiality of what is said in the confessional is a longstanding and fundamental part of a Catholic sacrament;
- The clergy penitent privilege is not “loophole”—it is a venerable part of our legal system, and there is no evidence that the seal of the confessional has contributed to the sexual abuse crisis in the Catholic Church;
- No existing mandatory reporting law directly attacks the Catholic Church’s sacraments as would SHB 1098; and
- A mandatory reporting law that eliminates the clergy penitent privilege would likely be found unconstitutional.
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s HHS Accountability Project.