USA TODAY
7-30-01
Page 13A
Clergy dilemma: Save lives or keep secrets
By Gerald L. Zelizer
When former FBI agent Robert Hanssen was in the throes of spying 20 years ago, his wife, Bonnie, told federal authorities that he confessed his activities to a Catholic priest who kept the crime confidential, advising him to contribute his payment to charity. Priest-penitent privilege is absolute in canon law and has been incorporated into the statutes of all 50 states. If Hanssen had been Jewish and shared his treason with me, I would have immediately informed him that I was obliged to report his crime. In Judaism, the saving of a life is superior to clergy-penitent confidentiality. In fact, two men spying for America whose names were disclosed by Hanssen were later executed. Hanssen pled guilty this month to spying for Russia and will receive a life sentence without parole. But his case is fueling a broader trend that questions whether the laws on priest-penitent privilege are too absolute. And with good reason, because some recent cases -- one this month in particular -- illustrate how the privilege has put others at risk: * A New York teenager, Jesus Fornes, in 1989 revealed to the Rev. Joseph Towle a murder he had committed, for which two other men, Jose Morales and Ruben Montalvo, were convicted. While the conversation was not in confession, and Towle suggested that Fornes make public the truth, the facts of the case never came out until Towle decided to testify in U.S. District Court as part of an appeal by Morales. The judge freed both Morales and Montalvo last week after more than a dozen years of wrongful imprisonment. * French Bishop Pierre Pican kept secret his knowledge of sexual assaults on boys by a priest, Rene Bissey. Pican is on trial for violating the law that requires French citizens to report suspected sexual abuse of minors. It is the first time in France that the Catholic Church's secrecy defense has been challenged in court. The increasing scrutiny of priest-penitent privilege brings into focus how the two clerical goals are in conflict. Clergy encourage repentance and rehabilitation of the penitent, which depends on absolute trust and open lines of prayer and communication, without fear of disclosure by either party. But at the same time, clergy, as citizens, are responsible for the collective welfare of society and preventing possible physical harm to others. For this reason, the first goal should suffer a bit because of obligation to the second. Already, some religions see the danger in an absolute privilege and are limiting it: * While the Presbyterian Church USA forbids its pastors from revealing anything told to them in confidence, the church does make an explicit exception for child abuse or ''when there is risk of imminent bodily harm to a person.'' * The United Methodist Church encourages its pastors to make an ethical judgment on a case-by-case basis. ''This is the kind of dilemma that defies uniform standards imposed from the outside,'' says Robert Kohler, assistant general secretary of the Division of Ordained Ministry. * John Dreibelbis, associate professor of Christian ministry at the Seabury-Western Seminary (Episcopal) in Evanston, Ill., says that, as a parish priest, ''I gave the penitent at the outset a printed card with the warning that if you confess something that is an ongoing injury or has the potential to harm, it is not a secret.'' * The Catholic archdioceses of Louisville and Indianapolis require priests to report suspected child abuse except when they learn of it in confession. Prosecutors and lower courts, too, have made a few attempts to whittle away at the edges of the privilege: * In New Jersey in 1971, a Catholic nun was found to be in contempt of court for refusing to divulge information shared with her by the alleged perpetrator of a homicide. The court ruled that Sister Margaret Murtha could not assert the privilege because she acted as a teacher rather than in the normal sacramental capacity of a priest. * Because the church did not have a formal rite of confession, a Tacoma, Wash., trial judge ruled that the privilege did not apply to Evangelical Reform pastor Rich Hamlin and his parishioner, Scott Martin, who confessed that he shook his infant to death. The judge's decision later was reversed. * An Idaho court held recently that a conversation between a hospital chaplain and a father regarding his son's injuries was not protected because the communication was not sufficiently private. Hospital staff could be seen and heard through the open door, it was reported. State laws, which vary widely, need to mandate more disclosure. Confidentiality of the Catholic confessional is protected by law in all states. But in many states, priest-penitent confidentiality is broadened to conversations beyond the confessional. Alabama, for example, includes all conferences -- in the broadest sense -- where the clergyman is consulted in his professional capacity of spiritual activities. New Jersey views privileged communications as including ''confessions and other communications made in confidence among the cleric and individuals . . . in the exercise of the cleric's professional or spiritual counseling role.'' While some states -- such as New Hampshire and Kentucky -- limit the clergy-penitent privilege in the case of suspected child abuse, South Carolina and Oregon maintain the privilege even in the case of sexual abuse of minors. Rabbi Sharon Brus, a rabbinic fellow at B'nai Jeshurun Congregation in New York, suggests that the clergy-penitent privilege be modeled more after the guidelines for psychotherapists, mandating confidentiality but requiring disclosure under such compelling circumstances as ''danger to oneself or others.'' Clergy-penitent privilege is indispensable in protecting both the parishioner and the clergy. Ministers, for example, must not be hauled into court in divorce or child custody disputes on behalf of one parent or the other. But many of today's laws have gone too far in requiring absolute confidentiality. Protecting a penitent or another person in imminent danger is more of a religious value than the potential repentance of a sinner. In those instances, the laws should not only allow, but mandate, that clergy report what they know. Gerald L. Zelizer, the rabbi of Neve Shalom, a Conservative congregation serving the Metuchen-Edison, N.J., area, is a member of USA TODAY's board of contributors.