Proposed legislation looking to repeal clergy-penitent protections in at least two states is in a head-on collision with the Church’s primary legal code, one expert told OSV News.

Montana and Washington are among the states seeking to compel clergy to disclose abuse revealed to them in the context of the Sacrament of Reconciliation or similar confidential pastoral settings in other faith traditions.

Earlier in January, Washington state Sen. Noel Frame introduced a third bill to mandate clergy to report abuse revealed under the seal of confession or in pastoral counseling. Two previous bills sponsored by state lawmakers failed; the latest would mandate clergy who receive information about abuse in confession to report it to authorities, but would allow them to abstain from testifying in court cases or criminal proceedings.

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On Jan. 14, Montana state Sen. Mary Dunwell introduced SB 139, which seeks to strike an existing provision that does not require priests or other clergy to report abuse if the information was revealed in such settings. Currently, Montana recognizes that such confidentiality can be required by “canon law, Church doctrine or established Church practice,” although SB 139 bill would eliminate that consideration.

Legislative efforts to mandate abuse reporting by confessors are fundamentally at odds with the Catholic Church’s understanding of the Sacrament of Reconciliation, said Fr. John Paul Kimes, associate professor of the practice at Notre Dame Law School and the Raymond of Peñafort Fellow in canon law at Notre Dame’s de Nicola Center for Ethics and Culture.

Canon law holds that “the sacramental seal” of the confessional is “inviolable,” and 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” (Canon 983.1).

Even when there is no danger of such revelation, canon law prohibits a confessor “completely from using knowledge acquired from confession to the detriment of the penitent” (Canon 984). Moreover, canon law uses “extraordinarily strong” language regarding the seal, describing its violation as “nefas” — a term that is “the worst possible thing you can call something in Latin,” said Kimes. “It’s horrible, despicable, unthinkable.”

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As a result, “at the end of the day, this is an unresolvable conflict between civil and canon law,” Kimes said.

While civil law would assign the privilege to a party — historically, the penitent who has been accused — “in canon law, the seal (of confession) belongs to no one,” neither the priest nor the penitent, said Kimes. “It belongs to the sacrament.”

He noted the clash has a long history, with the first U.S. civil case in which the issue was treated, People v. Philips, dating back to 1813. In that case, Fr. Anthony Kohlmann refused to break the seal of the confessional by testifying against defendant Daniel Philips, who indicated he had spoken with the priest about receiving stolen goods.

“The seal is there because it’s part of the sacrament itself,” said Kimes. “It is an essential element of the sacrament because it allows all of us, when we are repentant of sin, to come and seek forgiveness in a concrete fashion, in a way where we know that sin remains private, regardless of its gravity. That’s for everybody.”

At the same time, said Kimes, “whether we’re confessing a lie or a murder,” or “atrocious sins that are also crimes, like the sexual abuse of minors,” each penitent must demonstrate repentance and a firm purpose of amendment.

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“And if you don’t demonstrate those things, then you can’t receive absolution,” he said.

Civil laws seeking to undermine the inviolability of the confessional seal “fundamentally misunderstand” the sacrament, said Kimes.