“Reflections on Washington State’s Effort to Eliminate the Priest-Penitent Privilege” by Charles J. Russo

Saint Peter’s Basilica, Vatican City via Wikimedia Commons (CC0-01).

Washington’s controversial Senate Bill 5375, “An ACT Relating to the duty of clergy to report child abuse and neglect,” scheduled to go into effect on July 27, 2025, removes the legal protection for Roman Catholic priests under the seal of confession when dealing with mandatory sexual abuse reporting requirements. After Washington’s Catholic Bishops opposed the law on various grounds, the Federal Department of Justice filed suit, challenging it as violation of the First Amendment right to the free exercise of religion because it “appears to single out clergy as not entitled to assert applicable privileges, as compared to other reporting professionals.”

Earlier, Assistant Attorney General Harmeet K. Dhillon of the Justice Department’s Civil Rights Division maintained, “Senate Bill 5375 unconstitutionally forces Catholic priests in Washington to choose between their obligations to the Catholic Church and their penitents or face criminal consequences, while treating the priest-penitent privilege differently than other well-settled privileges. The Justice Department will not sit idly by when States mount attacks on the free exercise of religion.”

Given the threats to the free exercise of religion SB 5375 poses, this column first briefly focuses on its provisions before examining applicable canon law and Catholic Church teachings. The column then highlights representative American case law before reflecting on why SB 5375 is problematic for religious freedom, especially for Catholics, by undercutting its core value about the inviolability of the seal of confession.

Washington’s SB 5375 and the Seal of Confession

After three unsuccessful attempts, SB 5375’s supporters sought to close what they described as a “loophole” in Washington’s reporting laws. Earlier versions of the law exempted clergy from having to report abuse if they learned of incidents during confession or spiritual counseling sessions. Senator Noel Frame, the bill’s prime sponsor, criticizing existing  law as weak, cited a federal study indicating that Washington was one of only a few jurisdictions neither explicitly nor implicitly requiring clergy to report suspected child abuse. Still, most, but not all, states respect the seal of confession or what is often referred to as the priest-penitent privilege. A critic, Senator Leonard Christian voiced a key concern during a debate over SB 5375, cautioning that it “is forcing somebody who’s given their entire life – raised their hand, made an oath with God almighty – to choose between God’s law and man’s law.” 

On May 2, 2025, Governor Bob Ferguson signed Senate Bill 5375 into law. The bill requires clergy, without exception, to act as mandatory reporters of child abuse and neglect. Under Section 2(a)(b) of the law, “[e]xcept 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.”  This section retains the attorney-client and similar privileges for other professions while seemingly singling out Catholic priests for noncompliance and “carrying a penalty of up to 364 days in prison and a fine of up to $5,000.”

During a press conference after signing the bill, Governor Ferguson commented, in what comes off as a non sequitur, that as a Catholic he viewed it as “pretty straightforward.” He added that because his “uncle was a Jesuit priest for many years, (I’ve) been to confession myself – and so I’m very familiar with that,” adding that “I felt this was important legislation and protecting kids is first priority.” 

Canon Law and Church Teachings

The seal of confession is essential to Catholics in light of Jesus’ words “[w]hose sins you shall forgive, they are forgiven them; and whose sins you shall retain, they are retained.” The earliest recorded statement about the seal in Church-related writings was the 1151 work of  Gratian who, in compiling the edicts of the Councils, observed: “Let the priest who dares to make known the sins of his penitent be deposed.”

The Fourth Lateran Council in 1215 promulgated the first official Church pronouncement on the seal: “[l]et the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner.” In the same century, St, Thomas Aquinas devoted a chapter to the seal in his monumental compendium of the Church’s teachings, the Summa Theologica. Much later, in question 86 of his Catechism, St. Pius X, pope in the early twentieth century, highlighted the long-standing belief that “the confessor is bound by the seal of confession under the gravest sin and under threat of the severest punishments both temporal and eternal.”

The Catholic Church’s Code of Canon Law, a detailed compilation of ecclesiastical statutes, originally promulgated in 1917 and updated in 1983, is equally as clear on the sacrosanct nature of the seal. To this end, among its 1,752 provisions, Canon 983 emphasizes that “[t]he 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.” Further, Canons 1387 and 1388 specify that priests who violate the seal are subject to excommunication, a position clearly reiterated in Section 1467 of the Catechism of the Catholic Church:

Given the delicacy and greatness of this ministry and the respect due to persons, the Church declares that every priest who hears confessions is bound under very severe penalties to keep absolute secrecy regarding the sins that his penitents have confessed to him. He can make no use of knowledge that confession gives him about penitents’ lives. This secret, which admits of no exceptions, is called the “sacramental seal,” because what the penitent has made known to the priest remains “sealed” by the sacrament.

An important safeguard allows priests to refuse to grant absolution and forgiveness to penitents unless they promise to sin no more. Further, priests can condition absolution on making amends such as restitution, if possible, and reporting their offenses to the police as part of their penances. It is disappointing that SB 5375 failed to take this into consideration in seeking to eliminate the protection the seal affords Catholic priests.

American Case Law on the Priest-Penitent Privilege

In the relatively scant litigation on point, the first reported judicial recognition of and protection protecting the seal was the 1813 case People v. Phillips. There, a unanimous New York Court of General Sessions upheld the seal based on state constitutional grounds. The court reasoned that forcing the priest in this dispute to testify about what he heard in confession when he ordered a penitent to return the jewelry he stole as his penance would have violated both common law principles and religious liberty clause in the state constitution. Subsequently, in 1828, New York became the first jurisdiction to codify what it referred to as the clergy-penitent privilege.

Most recently, in 2016, the seal was at issue in Mayeux v. Charlet, where a man confessed to sexual abuse of a child. Reversing an earlier order to the contrary, the Supreme Court of Louisiana explained that because state law exempted priests as mandatory reporters of child abuse, he did not have a duty to inform public officials about confidential communications he learned during confession in light of Church teachings that he was duty bound to keep confidential. 

Two rounds of litigation in the same case in New York in 2001 addressed the seal. In Morales v. Portuondo, a federal trial court judge ultimately granted a habeas corpus petition ordering release of a wrongly convicted man who had been incarcerated for murder. The court ordered the release after a priest came forward to disclose that he had heard the confession of the actual killer, who had since died, in which he absolved the wrongly convicted man. The court was satisfied that because another man who was involved in the crime made like statements about his involvement in the killing to at least four others, and the priest described the meeting as a “heart-to-heart” talk, as opposed to a sacramental confession, even though he granted him absolution from his sins, the speaker had waived the privilege.  

In the first of three cases not involving the Catholic sacrament of confession, State v. J.G., the Supreme Court of New Jersey held in 2010 that whether the cleric-penitent privilege applies is one of objective reasonableness. Applying this standard, the court concluded that although the parties did not explicitly discuss whether the conversation was confidential, the privilege applied to a private communication between a pastor and a man who allegedly sexually abused his daughters.

Conversely, in 1988, in People v. Edwards, the Supreme Court of California ruled that because a defendant’s confidential statements to an Episcopalian priest that she committed four incidents of grand theft did not constitute penitential communication, her comments were not privileged from nonconsensual disclosure. Similarly, in 2013’s State of New Hampshire v Willis, the state’s highest court held that criminal defendant’ remarks made in a conversation with his Baptist pastor about having been the aggressor in a sexual relationship with a minor were subject to disclosure insofar as they were not covered by what it referred to as “religious privilege.”

Reflections

As an initial reflection, it is important to recognize the centrality of the seal for priests. The seal is so important that Catholic priests have witnessed to the faith by sacrificing their lives rather than violate it by revealing what they heard in confessions. On May 2, 2024, repeating his earlier support for the seal, Bishop Thomas A. Daly of Spokane wrote “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.” On May 5, 2025, Archbishop Paul D. Etienne of Seattle released a letter stating that “While we remain committed to protecting minors and all vulnerable people from abuse, priests cannot comply with this law if the knowledge of abuse is obtained during the Sacrament of Reconciliation…Catholic clergy may not violate the seal of confession – or they will be excommunicated from the Church.”

Writing in defense of the inviolability of the seal, I must state unequivocally that I have absolutely no sympathy whatsoever for evildoers who engage in the criminal activity, especially sexual misconduct with minors. As such, I fully support punishing violators to the full extent of the law. Yet, a significant point of contention arises as to the extent to which the government can infringe in the internal operations of the long-held sincere religious beliefs of Roman Catholics and the seal in light of the First Amendment guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

There can be no doubt that the government has an important, even compelling, duty to protect children from sexual abuse. However, as well intentioned as it may appear to be, SB 5375 creates a slippery slope endangering religious freedom. Because SB 5375 impacts the fundamental constitutional right to the free exercise of religion while apparently singling our Catholic priests, it is unlikely to withstand to strict scrutiny, the most stringent level of judicial review. When courts apply strict scrutiny, governmental actions must be justified by a compelling state interest which is present here but must also be drawn as narrowly as possible to protect fundamental rights, a standard it is unlikely to meet because the seal has been recognized for so long and has not created significant difficulties with the law. Due to the serious concerns SB 5375 raises, the judiciary is likely to respect the integrity of the seal by refusing to compel priests to violate their duties of nondisclosure.

At the same time, SB 5375 pushes the boundaries of how far civil authorities can attempt to intrude on the internal workings of religious bodies and their spiritual leaders even if they are purportedly acting in pursuit of worthwhile ends such as protecting children rather than antipathy toward religion. Should SB 3735 remain in place, it is unclear where the limit will be set on matters involving church teachings and practices—and not just among Catholics–to ensure conformity with the attitudes and values public officials think religions and their clergy should adopt on a range of issues. 

SB 5375 is troublesome because it raises serious threats to the free exercise of religion. Thus, in light of the litigation initiated by Washington’s bishops and the Department of Justice, perhaps legislators will rethink their action and respect the integrity of the seal by not singling out priests. If this bill is allowed to stand, religious freedom in the United States may be at grave risk of death by the first of the proverbial thousand cuts.   

Regardless of one’s faith or lack thereof, the seal of confession must be safeguarded. Protecting the seal is important because it is in the best interest of all to have the freedom to speak openly and honestly, in complete confidence, with their priests and other faith leaders without fear that their conversations on matters of intimate importance might be disclosed to others. Reflecting the sentiment of Senator Leonard Christian noted earlier, priests should not face the draconian choice of having to violate their commitment to God to comply with a man-made law of dubious legality and wisdom. ♦

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Recommended Citation

Russo, Charles J. “Reflections on Washington State’s Effort to Eliminate the Priest-Penitent Privilege.” Canopy Forum, July 11, 2025. https://canopyforum.org/2025/07/11/reflections-on-washington-states-effort-to-eliminate-the-priest-penitent-privilege/.

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