New Confession Box Law Has a Legal Problem: Lawyer

Newsweek

28-05-2025

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Washington State's bill to tackle sexual abuse has another legal problem when it comes to discerning between what speech is confidential and what is not, according to contract law professor Mark Movsesian.
Writing for the news outlet Reason, Movsesian said: "Washington's law expressly preserves other professional privileges, like the attorney-client privilege, but explicitly eliminates the clergy-penitent privilege. That unequal treatment presents a serious problem under current free exercise law."
The law, which is set to take effect on July 2, has already come under scrutiny from leaders within the Catholic Church, who say it directly undermines their ability to keep confessions confidential and sets priests up to either be arrested for breaking the law or excommunicated from the Church for exposing secrets told to them in Confession.
Professor Movsesian and the Washington State bill sponsor, State Senator Noel Frame, and Washington State Attorney General Nick Brown have been contacted via email for comment.
The exterior of the Washington State Capitol building is seen Friday, April 25, 2025, in Olympia, Washington.
The exterior of the Washington State Capitol building is seen Friday, April 25, 2025, in Olympia, Washington.
Maddy Grassy/AP Photo
Why It Matters
The law has triggered a national conversation about the boundaries of church and state at a time when the Justice Department (DOJ) under the Trump Administration is making efforts to crack down on what it sees as "anti-Chrisitan bias" in the United States.
What To Know
The new statute—signed by Governor Bob Ferguson—mandates clergy report suspected child abuse within 48 hours, aligning them with existing reporting laws for police officers, nurses, and teachers.
It has received significant pushback from Catholic leaders, however, the law's sponsor, State Senator Noel Frame, said she wrote the law in part due to secrecy practices within the Jehovah's Witness church which they likened to Catholic Confession.
According to Frame, herself an assault survivor, Jehovah's Witnesses were taken to court in Washington State following an investigation into sexual abuse and claimed that their internal review process could remain private as they were covered by anonymity akin to a Catholic confession.
However, Catholic leaders in the state are pushing back against this bill, saying that they are already mandatory reporters in every scenario except for confession. And, if they hear something that should be reported while in confession, they can encourage that person to speak to them in a different, safe place and to seek professional and legal help.
Now, Professor Movsesian has brought up another legal question, which is how the state differentiates between confidentiality in one setting versus another.
Movsesian discussed the bill with Catholic University law professor Marc DeGirolami. Professor DeGirolami said: "In this case, Washington allows secular privileges, like the attorney-client...
"The fact of including clergy in the same kinds of reporting requirements as everybody else I don't think is the singling out of religion, it's simply the inclusion of religion or clergy with respect to this reporting requirement that all others or a number of other professionals are subject to. That I don't think is a targeting issue. But, here it's the privilege issue, the privilege component that I think is the tricky part, so it allows secular privileges, like the attorney-client privilege, but it denies the religious equivalent."
DeGirolami went on to say: "Under the "most-favored nation" privilege of free exercise, that's a problem. That's the kind of discriminatory structure in a law that the court isn't going to look on favorably."
He said it is legally questionable to allow therapists or lawyers to retain confidentiality with their clients but not clergy. And that making a distinction between which professions are allowed this privilege could create an argument for the existence of religious discrimination.
Movsesian goes on to discuss another legal debate from 1813, People v Phillips, when a priest refused to testify in a case about stolen goods that were returned to him during confession.
Lawyers for New York State said that religion was no excuse for defying public safety. However, the judge ruled in favor of the priest, saying that the state could not force the priest to defy "one of the central ordinances of his faith."
The bill is being investigated by the Justice Department (DOJ), which says this bill conflicts with the First Amendment right to the free exercise of religion in Washington State.
Attorney General Pam Bondi speaks at a news conference at the Justice Department, Feb. 12, 2025, in Washington.
Attorney General Pam Bondi speaks at a news conference at the Justice Department, Feb. 12, 2025, in Washington.
Ben Curtis, File/AP Photo
What People Are Saying
Marc DeGirolami, speaking on Legal Spirits: "If you let lawyers withhold the evidence, or if you let psychotherapists withhold the evidence, why aren't you letting clergy in the context of a confessional withhold evidence? ... if the interest is really compelling, either you want all the evidence or you're making some kind of judgment about which relationships deserve legal protection and arguably that's where religious discrimination comes in. But it's also a suggestion that your interest really isn't as compelling as you're saying it is because if it were you'd make no exceptions to it."
Assistant Attorney General Harmeet K. Dhillon of the Justice Department's Civil Rights Division said in a May 5 news DOJ news release: "[The law] demands that Catholic Priests violate their deeply held faith in order to obey the law, a violation of the Constitution and a breach of the free exercise of religion cannot stand under our Constitutional system of government.Worse, the law appears to single out clergy as not entitled to assert applicable privileges, as compare d to other reporting professionals. We take this matter very seriously and look forward to Washington State's cooperation with our investigation."
Jean Hill, executive director of Washington State Catholic Conference (WSCC), told Newsweek: "The WSCC supported the mandatory reporting legislation throughout its history in the Washington state legislature. Our only request was that the state uphold our state and federal constitutional rights to maintain the Seal of Confession, as required by Canon Law."
What Happens Next
The DOJ is taking Washington State to court over this law. It is unclear at this time whether it will take effect on July 27.