Editor's Note: This story discusses child sexual abuse.
"I think it's very simple," Mary Dispenza told the Washington Senate Human Services Committee in January. "Crimes are being committed against children, and they need to be reported."
Dispenza is a former nun and the current Northwest contact for the Survivors Network of those Abused by Priests, or SNAP. She survived sexual abuse by a Catholic priest when she was 7 years old and now advocates for clergy accountability.
On Jan. 28, she was one of the first to testify in favor of Senate Bill 5375, which was introduced by state Sen. Noel Frame, D-Seattle. The legislation requires all clergy to be mandatory reporters of child abuse, without exemption for "priest-penitent privilege" — that is, sworn secrecy within a specific sacrament upheld by some religious traditions, often called the "seal of confession."
The state Legislature passed the bill and sent it to Gov. Bob Ferguson on April 22. He signed the legislation into law on May 2, and it is set to take effect on July 27.
On May 5, the federal Department of Justice announced its intent to examine the bill for possible First Amendment violations. It's possible that removing priests from the list of people who are entitled to privileged conversations is a violation of the freedom of religion.
"In my case, priest privilege and the seal of confession protected the perpetrator priest, who went on for four more decades to rape little girls," Dispenza told the committee early this year.
Requiring clergy to be mandated reporters is not a new idea in Washington. In 2022, regional nonprofit news outlet InvestigateWest broke a story about decades of covered-up child abuse within the Jehovah's Witness community in Spokane. The reporting brought attention to the fact that, at that time, Washington was one of the few states that didn't require clergy to report child abuse.
Since then, Frame, a survivor of sexual assault herself, has tried to pass a law including clergy in the state list of mandated reporters. Most states require clergy to be mandated reporters but provide an exemption for information priests learn during secret confession. New Hampshire, West Virginia, North Carolina, Oklahoma, Rhode Island, Texas and Guam are the only other states or territories that do not provide that exemption.
A similar bill "fell apart" last year, Frame said in the Human Services Committee meeting. But after the legislative session was over, the state Attorney General's Office, then led by Ferguson, announced it was investigating whether charitable funds were used to cover up child abuse allegations in three Catholic dioceses in Washington — the Seattle Archdiocese, the Diocese of Yakima and the Diocese of Spokane.
"Quite frankly, it made it hard for me at a personal level to stomach any argument about religious freedom being more important than preventing the abuse, including the sexual abuse, of children," Frame told the committee. "I have tried really hard to find a balance and strike a careful compromise, but I stand by the bill with no exemption."
MORAL ABSOLUTES
Despite repeated requests, Thomas Daly, the bishop of the Catholic Diocese of Spokane, would not speak to the Inlander about the new law. Instead, the diocese pointed to a statement that Daly published on May 2:
"I want to assure you that your shepherds, bishop and priests, are committed to keeping the seal of confession — even to the point of going to jail," Daly wrote. "The Sacrament of Penance is sacred and will remain that way in the Diocese of Spokane. ... The Diocese of Spokane maintains an entire department at the Chancery, the Office of Child and Youth protection, staffed by professional laypeople. We have a zero-tolerance policy regarding child sexual abuse."
Catholics are not the only Christian tradition that maintains a seal of confession. In the Episcopal sacramental rite of reconciliation, "the secrecy of a confession is morally absolute for the Confessor and must, under no circumstances, be broken," according to the Book of Common Prayer, the doctrinal authority and practical instruction guide for Episcopal and Anglican churches.
"It's one of the few times we [Episcopalians] ever used the phrase 'morally absolute,'" says Gretchen Rehberg, bishop of the Episcopal Diocese of Spokane.
"Morally absolute" is a theological way to say "black and white" — that is, there's no gray area, there's no circumstance that would make a "wrong" action a "right" one.
While Catholics typically require sacramental confession at least once a year, Episcopalians differ. Not only do they not require people to practice secret confession, they don't require priests to administer the rite of reconciliation. There are plenty of other ways for Episcopalians to confess their sins in non-secret ways, Rehberg says, which is what most Protestant faiths do — and those are far more popular.
But if a congregant does desire the rite of reconciliation and finds a priest willing to hear it, the secrecy of that confession is morally absolute for both practical and theological reasons, Rehberg says.
"There needs to be a way for them to confess, knowing that the priest isn't going to walk out and tell everybody what they heard," she says. "But the other thing is, once it's absolved, it's gone. You can't then carry it forward, because one of the greater sins is to hold on to that sin already absolved."
But what people outside the church may not understand, Rehberg says, is that "absolution," or forgiveness, requires "due contrition" — that is, proof that someone has stopped committing the sin they've just confessed.
"What I have told the priests here is that you don't have to absolve anybody who's unwilling to, as an act of contrition, turn themselves in," she says.
To reiterate: Rehberg says priests should require anyone who confesses child abuse in secret to report themselves to law enforcement authorities immediately, in order to prove that they actually want to receive forgiveness.
If they refuse to turn themselves in, the priest should not forgive them, she says, and that priest should remove the confessor from any interactions with children.
"I think the sad reality is we have examples from the past where clergy absolutely abused children and were protected," Rehberg says. "That is wrong. That is a sin of the church. But I think it's a failure of the imagination of those at the time — there were other things they could have done."
Rehberg gave these instructions long before the new mandated reporter law was signed. She also encouraged any priest willing to hear secret confessions to have a lengthy conversation before entering the "seal" to get an idea of what someone might confess before being sworn to secrecy.
People who testified at the Senate Human Services Committee said that a "cloak of secrecy" around confession is what fueled an epidemic of child abuse within religious circles. Rehberg says that if the only time an authority hears about or suspects child abuse is during a secret sacrament, that's already a failure of the church.
But the ultimate failure is the knee-jerk reaction to defend those with institutional authority at the expense of the most vulnerable, Rehberg says. Still, that can, unfortunately, happen regardless of whether confession is sealed or not.
"I would say [in] many churches, whether we're talking Roman Catholic, Episcopal, or Southern Baptist — which doesn't practice reconciliation of the penitent — there's been a tendency to protect their clergy in ways that are inappropriate," she says.
Rehberg understands the anger, hurt and fear fueling the new law.
"We brought this on ourselves by having a history in the churches of protecting abusive clergy," she says. "Those who want to say clergy have to be mandated reporters, even within confession, are saying the church has failed to protect."
That failure is real and harmful, Rehberg says, but transformation doesn't come from disobeying doctrine.
"I cannot break the seal of confession, but I must not protect clergy who abuse people," she says. "Those can both be true."
FIRST AMENDMENT CONCERNS
Erica Goldberg is a Gonzaga law professor and a First Amendment expert. The First Amendment to the U.S. Constitution enshrines freedom of speech, freedom of the press, and freedom of religion.
One of Goldberg's favorite questions to ask upper-level law students is, "What do constitutional rights do?"
"It's hard to get them to say that [constitutional] rights exist to overturn democratically elected laws that are in conflict with these rights," she says.
To put it another way, "the Constitution just very fundamentally protects individual rights against what the democracy would like, or what the democracy thinks is best, or what the democracy thinks is safest," she says.
While Goldberg was researching Washington's new mandatory reporting law, she was struck by how some legislators spoke about individual rights.
"One lawmaker said something like, 'Individual conscience should never come above the safety of a child,' which might be a sentiment that most people agree with," she says. "However, the whole point of the Constitution is that you have these individual rights even if they interfere with public interest. ... My view is, in an era when there have been too many entrenchments on constitutional rights, especially right now, that in a nonpartisan way, we have to recognize that you have to respect the Constitution even if it doesn't adhere to your policy preferences."
Goldberg thinks there's a good chance Washington's new law could be in violation of the First Amendment, if someone decided to bring it to court.
Her concern comes from a line in Section 2 of the bill that says, "Except for members of the clergy, no one shall be required to report under this section when he or she obtains the information solely as a result of a privileged communication as provided in RCW 5.60.060."
Washington state code gives privilege, or protected confidentiality, even from the government, to certain relationships, including spousal and attorney-client relationships. Sacred communications with clergy used to also be considered privileged.
When Goldberg reads "except for members of the clergy," she sees red flags.
Freedom of exercise of religion broadly means that religious groups must be treated the same as nonreligious groups. To take privileged communication away from a religious group without also taking it away from a nonreligious group could be considered "religious animus," that is, bias against religion, Goldberg says.
"That makes it look like this law is treating religion worse than secular people, and that is what raises the most free exercise concerns," Goldberg says. "The church has a pretty bad history with covering up sex abuse, but you cannot just say, 'Well, the church is more evil on sex abuse, and so we are burdening you with extra responsibilities.'"
Goldberg also says the law would be difficult to enforce. If mandated reporters fail to report child abuse, they could be charged with a misdemeanor, but how would law enforcement know if clergy failed to report?
Ultimately, Goldberg is surprised that similar laws in other states haven't been challenged, at least to her knowledge.
"To not exclude confession is a pretty big deal, just because that is so essential to the practice of Catholicism," she says. "People across the political spectrum find it kind of easy to overlook the importance of constitutional rights in areas where they might not care about the right as much. But that just gives power to your political enemies to ignore it in cases you do care about. So I think we all have to be pretty principled about that." ♦
