Professor Marci A. Hamilton, How The National Conference Of Bishops’ Proposal On Handling Child Abuse Should Be Changed: The Devil Is In The Details

The U.S. National Conference of Bishops has now released its draft proposal for dealing with the child abuse scandal that has dogged the Church for months. The proposal includes an apology – one that has been deferred far too long.

It also includes a number of important policy changes for the church: All accusations of sexual abuse, it proposes, must be reported to law enforcement authorities. (This was the absolute minimum the Church needed to do to avoid schism or marginalization). It also proposes defrocking all future pedophiles (though it strangely protects past pedophiles who have “only” done it once), eschewing confidentiality agreements, and making full disclosure regarding transferred priests.

As readers of my prior columns on the Church scandal are well aware, I have called on the Church to do more than the minimum to acknowledge and redress the harms to children it has permitted. Accordingly, having reviewed the Conference’s proposal’s highlights, I must give the Church its due–these are constructive moves in the right direction.

Why the Church Needs to Go Further to Effectively Protect Children From Abuse

The Bishops’ draft proposal, well-meaning as it may be, still reads too much like a response to the public opinion polls that followed the scandal. Instead, it should reflect a reordering of the Church’s priorities – away from protecting itself and its reputation, and toward protecting children. The Church has now heard first-hand from hundreds of victims; it has a golden opportunity here to use what it has learned to improve the plight of children at the hands of trusted clergy abusers. What it does now in the public sphere can protect children of all denominations from the special terrors of clergy abuse. (The latest reports that the United Nuwaubian Nation of Moors’ leader allegedly abused dozens of children in Georgia remind us that this is not a problem peculiar to the Catholic Church.)

To those at the Vatican and here who have started to claim anti-Catholic bias in the massive reporting on this scandal, one can only respond that the focus on the Church is in no small part due to the Church’s own self-absorption. If it were itself to make children the focus, the news reporting may well follow suit.

Children need to come first, and so far, the proposal is not framed to ensure that will be the case. The Church must persuade both those who have been abused (too many) and those disgusted with the abuse (many, many, many) that it means to make children part of its healing mission.

Accordingly, as I noted in my previous column, the Church needs to lobby (just as it lobbies against abortion and the death penalty) for child abuse reporting requirements that work. The Church argues that the “unborn” are children deserving protection; the born now need its close attention.

The Church also needs to support, and lobby for, longer statutes of limitations for child abuse.

Neither of these measures appears in the Bishops’ draft.

Getting the Reporting Requirement Right: No Broad Confessional Exception

Several states – specifically, Massachusetts, New York, Colorado, and Connecticut – deserve credit for trying to amend their child abuse reporting laws to include the clergy. These are difficult waters for states, wary of church/state separation concerns, to enter into, but they should not hesitate to do so, for such concerns can be misplaced under these circumstances.

Children’s advocates have pushed for a straightforward amendment that would include clergy in the list of professionals who deal with children and who must report abuse. Such an across-the-board reporting requirement for all those dealing with children, irrespective of whether they hold secular or religious positions, would be constitutional under the First Amendment’s Free Exercise Clause. It would be general, neutral, and dedicated to children’s welfare – not to penalizing or promoting religion.

But those representing the Church have pushed for a different approach. They argue that because no priest may reveal what he has been told in the confessional, there must be a blanket exception to reporting for information learned in the confessional. In support of their position, they rely on an evidentiary rule called the “priest-penitent privilege” that bars a court from requiring a priest to testify regarding the contents of a confession.

This argument is seriously mistaken. It is easy to confuse the apples of reporting with the oranges of privilege. (Indeed, Colorado did just that.) And it is true that a priest has a rebuttable presumption against revealing in court what he has heard in the confessional. But that does not imply that the priest cannot report what he sees outside the confessional that confirms the confession.

Consider this situation: One priest hears a confession from another priest who tells the first that he has abused a child who attends the church. Then the former priest notices that the boy seems very upset, and avoids any contact with the latter priest – with whom he was formerly close. Certainly these signs of possible child abuse should still be reported. Indeed, it would be bizarre if they could not be reported precisely because the former priest knew (based on the confession) that they were likely true.

The confessional was not meant to produce priests who see no evil, hear no evil, and speak of no evil.

The Imminent Risk Test Respects Both Children and the Confessional

Connecticut’s requirement that clergy report abuse in circumstances where there is “imminent risk of serious harm,” regardless of whether the information came from inside or outside the confessional, is right on target.

The rule has not been that all information obtained through the confessional is absolutely protected from disclosure. Rather, courts across the country have found instances where the clergy member must report. There are times when there are compelling reasons for the state to require such disclosure, and imminent harm to a child clearly is one of them.

Details That Determine Whether the Bishops’ and the States’ Proposals Will Work

It will depend on the state whether law enforcement or child protective services is the entity most likely to ensure the best interests of the children. Thus, in every state legislature, a fact-based assessment, and a careful decision, as to who should receive the abuse report is crucial. Has the entity in the past been responsive to child abuse reports, or have they collaborated with the Church in covering them up? If they did aid in the cover-up, can we trust them to act on abuse reports in the future?

In addition to the important question of who receives the reports, other seemingly insignificant details can defang a proposal. Consider, for example, a New York bill that would penalize only those who “willfully fail to file the form” reporting child abuse. Both the willfulness requirement and the form requirement may make the system less effective.

What if a person loses the form, or never receives it, or negligently (but not willfully) forgets to file? The telephonic or oral reporting requirements in the Connecticut law do more for children. So do Connecticut’s short time frames for reporting – which must occur literally hours after the reporting person or institution becomes aware of the abuse.

There will be no perfect law that will solve every single case of clergy child abuse. Nevertheless, with many states trying to reform their systems to protect children, there will be many laboratories for experimentation and testing as to which laws do, and do not work. That is the strength of this federalist system.

The Bishops’ proposal – and the states themselves – should pay careful attention to all the alternatives and choose the ones that, based on logic and experience, seem to work the best. The ones that fail should be shelved quickly.

The Bishops should add to their draft proposal a draft law that they will support in the 50 states and that will protect children from harm, even when initial information came through the confession. Even when the information only comes through the confessional, if the child is in imminent harm, the Church has a social, moral, spiritual, and public obligation to ensure that the authorities are identified and the child rescued from harm.

The Catholic Church has been a voice for justice and the downtrodden around the world. It is time for the American Catholic Church to look to the downtrodden within its own borders, and throw its still considerable weight behind the children.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law. Her previous columns on the Catholic Church scandal and on church/state constitutional issues can be found on the archives of her column on this site. Her email is