Penitent Privilege in the Age of Abrogation
Nathan J. Ristuccia
Privilege law is transforming today. The evidentiary privilege for penitential confessions has been near universal across the United States since the 1960s. In most jurisdictions, this guarantees that communications “made privately and not intended for further disclosure” to “an individual reasonably believed” to be “a minister, priest, rabbi, or other similar functionary of a religious organization” in that minister’s “professional character as spiritual adviser” will be inadmissible as evidence—even at non-jury proceedings such as a sentencing or Motion in Limine hearing—unless the person holding the privilege consents. Historically, penitent privilege was not controversial in America, with courts disagreeing only about whether they could recognize the privilege on their own or had to wait for the legislature to authorize it by statute.
Outside America, the situation differs greatly. Some countries have never adopted the privilege—arguably the U.K. never has. Others, such as Ireland, waited until deep into the twentieth century to create the privilege. International law contains no penitent privilege, despite the insistence by some scholars that the International Covenant on Civil and Political Right logically requires it. Over the last few decades, in response to sexual abuse scandals, many countries have abrogated their pre-existing privilege in cases of child abuse.
Much of America has resisted this trend. Counts vary—depending on how the person counting interprets often obscure statutory language—but in roughly twenty states clergy are not even mandatory reporters; in most of the rest, clerics only need report abuse if they learn of it outside of the confessional. However, at least six states have made child abuse an exception to penitent privilege. Currently, three more states—Delaware, Vermont, and Washington—have bills before their legislatures that would abrogate the privilege in child abuse cases. Two of these bills remain in committee and may never come to the floor. Rival versions of Washington’s bill, however, have already passed the upper and lower houses, so it will likely become law in some form. As a legal historian who by good fortune has an article on the nineteenth-century origins of penitent privilege forthcoming in the Mississippi Law Journal, I would like to offer three historical points that may sharpen the debate around these bills.
First, evidentiary privileges are never free. Privileges further some policy goal other than judicial accuracy. The cost of a privilege is “occasional injustice,” in the words of the late Justice Scalia. And “the victim of the injustice” is usually “some individual who is prevented from proving a valid claim—or (worse still) prevented from establishing a valid defense.” Penitent privilege cases from the nineteenth century show heirs being disinherited, killers walking free, and illegitimate children unable to discover their true fathers. Most ominously, the earliest privilege decision from the state of Virginia focused on a criminal defendant who nearly went to the gallows because he could not offer a priest’s exonerating testimony.
The costs of privilege are obvious. Yet, for years, one common justification given for privilege—and not just for penitent privilege, but also for those covering lawyers, doctors, psychotherapists, social workers, and so forth—is that these privileges do not actually suppress any evidence. Supposedly, people speaking in confidence would never have communicated at all without the knowledge that their communication would be privileged. Penitent privilege purportedly inspires communications, more than it shelters them.
This claim is bizarre. Most people have no idea what evidentiary privileges exist. And even when they do know, most do not organize their lives around the rules of evidence. We share secrets all the time with friends, parents, lovers, bartenders, and anonymous acquaintances online, although none of those communications are privileged.
Surely, the main reason people confess to a priest is that they fear hellfire. Anyone threatened by eternal damnation will not be dissuaded by the slight chance that a comment might one day become evidence. Indeed, many of the earliest cases on penitent privilege involved dying declarations: sinners pouring out their faults at last rites knowing that they would die before any legal repercussions. Yet after the penitent had died, the cleric remained unable to testify—even if this lack of testimony ended up hurting the penitent’s own presumed interest. The dead are no longer around to waive.
Second, abrogation at this point is likely unconstitutional. Since the early nineteenth century, many judges and legal commentators interpreted free exercise protections in state and federal constitutions to mandate some form of penitent privilege. The history and traditions of the nation are on the side of the privilege and may represent a constitutional liquidation of the First Amendment’s meaning.
Moreover, under the Supreme Court’s current doctrine, a law is not generally applicable (and, therefore, must survived strict scrutiny) if “a formal mechanism for granting exceptions” permits the government “to consider the particular reasons for a person’s conduct” and decide which ones “are worthy of solicitude.” Whenever a government “treat[s] any comparable secular activity more favorably than religious exercise,” by “prohibit[ing] religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way,” strict scrutiny triggers and the government will almost always lose.
Currently, none of the states that have abrogated penitent privilege in cases involving child abuse have cut back on attorney-client privilege as well. The First Amendment forbids governments from determining that confidences to attorneys are weightier (more “worthy of solicitude”) and thus should be afforded greater protection than religious confidences when both impinge on the same compelling interest in child abuse cases: the need to keep children safe. At least one comparable secular communication, thus, is treated more favorably than religious confessions. As a result, courts would likely hold that abrogation statutes violate free exercise.
Lastly, abrogating penitent privilege will have minimal impact in the real world. Empirical study, after all, indicates that penitent privilege is rarely invoked. Attorney-client privilege and therapist-patient privilege, for instance, generate far more cases. Moreover, when penitent privilege is asserted, it usually fails. According to the most recent count, only a quarter of invocations successfully suppress any evidence. I do not know of a single child abuse case occurring anywhere in America over the last two decades that would have resolved differently if the privilege had been abrogated. Opponents of the privilege gain little.
But defenders of the privilege also have little to fear. After all, many of the abrogated privileges are not especially old. Until the 1950s, only about half the states recognized penitent privilege. Yet Roman Catholicism and other sacramental churches thrived during the first 150 years of American history, and there is no evidence that priest-confessors were regularly imprisoned for contempt of court. “Pious perjury”—false testimony out of religious convictions—is a venerable tradition in both Catholicism and Anglicanism, for example, with some theologians urging that perjury is a Christian duty in the right circumstances. If states insist on abrogating the privilege, subpoenaed clerics probably will take the stand and lie, just as they once did in places and eras before the privilege arose. Almost never will the government discover such perjury, let alone prosecute.
Privilege laws are chiefly symbols. Creating the privilege in the nineteenth century signified that the Roman Catholics were equal citizens, able to join in republican self-governance alongside the Protestant majority. Abrogating the privilege today signifies that politicians regret how for centuries they did little to help vulnerable children and now want to appear to do everything possible to keep abuse from continuing. Americans must choose which symbol is more important, but they should choose without the illusions that come from a misunderstanding of history.
Judicial Law Clerk, United States Court of Federal Claims. Georgetown University Law Center, J.D. 2022; The University of Notre Dame, Ph.D. 2013; Princeton University, A.B. 2007.
 Proposed Fed R. Evid. 506(a)–(b), 56 F.R.D. 183, 247 (1973). Although Congress never approved Federal Rule of Evidence 506, the language of this proposed rule has been influential on state privilege statutes and expresses the standard scope of the privilege in America. See Charles Alan Wright & Kenneth A. Graham, Jr., Federal Practice and Procedure: Evidence § 5611, at 11–22 (1992).
 Compare Executors v. Gratz, 2 Pen. & W. 412, 417 (Pa. 1831) (approving of the privilege on policy grounds but holding that a legislature—not a court—must authorize the privilege) with People v. Philips (N.Y. Ct. Gen. Sess. 1813) in William Sampson, The Catholic Question in America 5, 95 (New York, Edward Gillespy 1813) (concluding that the state constitution implicitly required the privilege).
 For the status of the privilege internationally, see generally A. Keith Thompson, Religious Confession Privilege and the Common Law (2011); see also generally Christopher Grout, The Seal of the Confessional and the Criminal Law of England and Wales, 22 Ecc. L.J. 138 (2020); Martin O’Dwyer, A Matter of Evidence: Sacerdotal Privilege and the Seal of Confession in Ireland, 13 U. C. Dublin L. Rev. 103 (2013); Robert John S.J. Araujo, International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the Priest-Penitent Privilege under International Law, 15 Am. U. Int’l L. Rev. 639 (2000).
 See, e.g., James Grant Semonin, “For the Forgiveness of Sins”: A Comparative Constitutional Analysis and Defense of the Clergy-Penitent Privilege in the United States and Australia, 47 J. Legis. 156 (2021) (comparing American laws with those used outside the country).
 Scholars have supplied differing lists of which states treat clergy as mandatory reporters and which do not. Compare Gabriella DeRitis, Forgive Me Father, For I Have Sinned: Explicitly Enumerating Clergy Members as Mandatory Reporters to Combat Child Sexual Abuse in New York, 26 Cardozo J. Equal Rts. & Soc. Just. 283 (2020) (tabulating the status of clergy in mandatory reporter laws) with Caroline Donze, Breaking the Seal of Confession: Examining the Constitutionality of the Clergy-Penitent Privilege in Mandatory Reporting Law, 78 La. L. Rev. 267 (2017) and Jude O. Ezeanokwasa, The Priest-Penitent Privilege Revisited: A Reply to the Statutes of Abrogation, 9 Intercultural Hum. Rts. L. Rev. 41 (2014).
 These six states are North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, and West Virginia. See Jacob Thackston, The Priest-Penitent Privilege in a Post-Scandal World: Federal Inaction and State Abrogation, Harv. L. School, at 3, 13 (Sept. 2020), https://pblcls.law.harvard.edu/wp-content/uploads/2020/09/Thackston-Priest-Penitent-Privilege-Paper.pdf [https://perma.cc/UJ49-LSF3] (comparing various lists identifying abrogating states). Perhaps not coincidently, these six include several states among those with the lowest percentage of Roman Catholics in the nation.
 See House Bill 74, Delaware General Assembly (May 15, 2023), https://legis.delaware.gov/BillDetail/130044 [https://perma.cc/9CN3-72ZC] ; S.16, Vermont General Assembly (May 15, 2023), https://legislature.vermont.gov/bill/status/2024/S.16 [https://perma.cc/5NLT-3JFV]; SB 5280 – 2023-24, Washington State Legislature (May 15, 2023), https://app.leg.wa.gov/billsummary?BillNumber=5280&Year=2023 [https://perma.cc/RVT7-PAFA]; see also Eric Kniffin, Attacks on the Seal of the Confessional, First Things (May 15, 2023), https://www.firstthings.com/web-exclusives/2023/03/attacks-on-the-seal-of-the-confessional [https://perma.cc/T69W-MAYP].
 Nathan J. Ristuccia, The Priesthood of All Citizens: On the Pseudo-Theology of Penitent Privilege, 93 Miss. L.J. (forthcoming 2023).
 Raymond F. Miller, Creating Evidentiary Privileges: An Argument for the Judicial Approach, 31 Conn. L. Rev. 771, 771–72 (1999) (“Evidentiary privileges are antithetical to the purposes of a truth-seeking process. . . . Their purpose is to foster beneficial social relationships and to protect personal privacy interests, even at the expense of determining the truth.”); see also Note, Introduction: The Development of Evidentiary Privileges in American Law (p.1), 98 Harv. L. Rev. 1454, 1454 (1985) (“privileges expressly subordinate the goal of truth seeking to other societal interests”).
 Jaffee v. Redmond, 518 U.S. 1, 18–19 (1996) (Scalia, J., dissenting).
 See, e.g., Dahler v. State, 53 N.E. 850 (Ind. App. Ct. 1899); Estate of Toomes, 54 Cal. 509 (1880); People v. Smith, 2 City Hall Recorder 77 (N.Y. Oyer & Terminer 1817); 1 Leonard MacNally, The Rules of Evidence on Pleas of the Crown 253–55 (London, Butterworth, 1802).
 See, e.g., Commonwealth v. Cronin, 2 Va. Cir. 488 (Va. Cir. 1855).
 See, e.g., Angela Beam, Sinner and Salvation: The Unchecked Coercive Effect of Religious Appeals during Custodial Interrogation, 97 Tul. L. Rev. 451, 462–63, 476, 480 (2023).
 See Estate of Toomes, 54 Cal. 509 (1880); see also Commonwealth v. Cronin, 2 Va. Cir. 488 (Va. Cir. 1855); cf. 1 Leonard MacNally, The Rules of Evidence on Pleas of the Crown 253–55 (London, Butterworth, 1802).
 See, e.g., Timothy Walker, Editor’s Note to Abbreviated Report of People v. Phillips, 1 W. L.J. 109, 113–14 (1844); People v. Philips (N.Y. Ct. Gen. Sess. 1813) in William Sampson, The Catholic Question in America 109–11 (New York, Edward Gillespy 1813).
 Fulton v. Philadelphia, 141 S. Ct. 1868, 1877, 1879 (2021); see also Kennedy v. Bremerton School District, 142 S. Ct. 2407, 2422 (2022).
 Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021); see also Fulton, 141 S. Ct. at 1877.
 Cf. Shawn P. Bailey, How Secrets Are Kept: Viewing the Current Clergy-Penitent Privilege Through a Comparison with the Attorney-Client Privilege, 2002 BYU L. Rev. 489, 489–90 (2002).
 Although publication bias may distort the numbers, there are surprisingly few published cases on penitent privilege. See Christine P. Bartholomew, Exorcising the Clergy Privilege, 103 Va. L. Rev. 1015, 1027 (2017).
 See id. at 1028–30.
 Because penitent privilege shields penitents, not the clergy themselves, both the privilege and its abrogation has had minimal impact on cases when a cleric is the accused abuser. See, e.g., Thackston, supra note 7.
 See A. Keith Thompson, Religious Confession Privilege and the Common Law 268–69 (2011); Charles Alan Wright & Kenneth A. Graham, Jr., Federal Practice and Procedure: Evidence § 5612, at 47–49 (1992).
 See, e.g., Orestes Brownson, The Confessional, 3 Brownson’s Q. Rev. 327, 341–42 (1846).
 Perjury is difficult to prove and rarely prosecuted. See generally, John L. Watts, To Tell the Truth: A Qui Tam Action for Perjury in a Civil Proceeding Is Necessary to Protect the Integrity of the Civil Justice System, 79 Temp. L. Rev. 773 (2006).
MEET THE AUTHOR
Nathan J. Ristuccia lives in Falls Church, Virginia and is a member of the Virginia bar. In 2022, he graduated summa cum laude from Georgetown University Law Center, where he was an Articles Editor for the Georgetown Law Journal and a Bradley Fellow at the Georgetown Center for the Constitution. Prior to entering law, Ristuccia received his Doctorate in Medieval Studies from the University of Notre Dame and worked as a historian at the University of Chicago. He is the author of Christianization and Commonwealth in Early Medieval Europe (Oxford University Press, 2018) and the author of The Priesthood of All Citizens: On the Pseudo-Theology of Penitent Privilege, 93 Miss. L.J. (forthcoming 2023), a forthcoming article in Volume 93 of the Mississippi Law Journal.