Mahony’s priest-penitent privilege

Mahony’s priest-penitent privilege

I’m not a lawyer and I shouldn’t play one on the Internet. A reader writes with a clarification of Mahony’s attempted legal justification for keeping certain priest personnel files of alleged molesters private:

First, on Mahony – although I am certainly no fan of his, I don’t think he has really created a dilemma that is all that dire.  From what I have read, his lawyers claimed that the records contained information that involved the “sanctification process” they did not explicitly invoke the seal of the confessional.  Legally, the clergy privilege is broader than just confessions.  It applies to any number of private communications between a person and a member of the clergy.  For example, a couple could go to the priest for marital counseling that would be privileged under the rules of evidence, but the priest could discuss the communications with another priest to get advice on how to proceed, which he could not do if it was a confession.  Using the word sanctification seems to create a connection to the sacrament, but strictly speaking I think what they were arguing was a broad interpretation of the more generic clergy privilege.  That being said, it was a reach, and he should never have done it in the first place.  I would be surprised if it was on his lawyer’s advice, because it’s pretty much a loser of an argument. Oh, I’m a lawyer myself.

I thank the reader for the clarification, although I will continue to argue that the claim is damaging to the Church. As Brian said in the comments in the previous post, the claim will weaken future efforts to demand protected status for privileged communications that actually are related to the seal of the confessional. It was a stretch for him to make the claim and now he’s going to reap the rewards for it.

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Written by
Domenico Bettinelli
1 comment
  • In the words of the late, great Bette Davis:  “Fasten your seatbelts, it’s going to be a bumpy night” for Jolly Roger.  If there really IS something in there that violates the seal of confession (which is highly unlikely), it would be a scandal of cataclysmic proportions—not so much the sexual abuse coverup as that is old news, but the fact that something was actually documented that took place during the celebration of the Sacrament of Penace.  Regardless, I smell a resignation brewing.

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