Washington Clerical Abuse Law Challenges Seal Of Confession

On May 2, 2025, the Washington legislature approved Senate Bill 5375. The bill codifies the “duty of clergy to report child abuse and neglect.” Although the term “clergy” has a distinctly Catholic ring to it, the word refers to any spiritual leader of a church, religious community, or sect. “When any member of the clergy,” the bill reads, “has reasonable cause to believe that a child has suffered abuse or neglect, he or she shall report such incident, or cause a report to be made, to the proper law enforcement agency.”

This bill modifies already existing legislation. Previously, Washington law exempted cases in which children disclosed suffering abuse to a priest in the confessional. But with S.B. 5375, this exemption is excluded. It is this change which has sparked outrage and consternation, particularly from American Catholics.

In a statement from May 4, the Archdiocese of Seattle declared that “Catholic clergy may not violate the seal of confession – or they will be excommunicated from the Church.” The bill provoked a lawsuit led by Catholic bishops in Washington. The Catholic reaction against the S.B. 5375 in turn sparked indignation by Americans supportive of the bill.

Much is already written on the bill and the Catholic reaction to it. But I am interested in the details and arguments of the case itself.

The Seal of Confession

The Etienne et al. v. Ferguson et al. (hereafter Etienne) plaintiffs bring several arguments against the Washington governor, Robert W. Ferguson. The main argument concerns the Catholic doctrine of the seal of confession. In legal terms, we can think of the seal of confession as a privileged or confidential space. Anything that the penitent confesses to the priest is kept between the two.

Traditionally, the Catholic Church teaches that a priest who breaks the seal of confession is automatically excommunicated (latae sententiae). Thus, the May 4 statement from the Archdiocese of Seattle is not declaring anything new regarding excommunication.

Ultimately, the plaintiffs accuse Washington of “using religious practice to achieve civil ends.” By doing so, plaintiffs allege that Washington is violating the church autonomy doctrine (Wisconsin v. Yoder (1972)), burdens religious practice (Lukumi v. Hialeah (1993)), is prejudiced against religion (i.e., non-neutral) and is not generally applicable (Tandon v. Newsom (2021).

An Anti-Catholic Bill?

One question we must ponder is whether this bill is truly an anti-Catholic bill, a charge raised by Catholic authorities and the Department of Justice itself. Prima facie, the bill and its prior iterations were clearly directed towards all religious leaders. The bill defines “clergy” as a “priest,” but also as a “rabbi, imam, elder, or similarly situated religious or spiritual leader of any church, religious denomination, religious body, spiritual community, or sect.”

The legislative intent, I suggest, lies in the developments and qualifications of the bill. S.B. 5375 amends prior Washington legislation, namely RCW § 26.44.030(1)(b). This section of state law previously allowed an exception for mandatory reporting when information about child abuse is shared in privileged settings. But the new bill targets clergy alone:

Except for members of the clergy, no one shall be required to report under this section when he or she obtains the information solely as a result of a privileged communication as provided in RCW 5.60.060.

As someone who is usually skeptical of American Christian claims of persecution, this is a case in which the legislation seems uniquely targeted at American Catholics. As Mark David Hall writes for Law & Liberty, “Many religious traditions encourage members to confess sins to religious leaders, but few take the practice as seriously as the Roman Catholic Church.”

A Brief History of the Seal of Confession

This ordeal is nevertheless a difficult one, even if the Etienne plaintiffs turn out to have sound constitutional arguments. On the more human level, it is truly difficult weighing children’s safety with religious practice. In fact, I gravitate more towards the former, having studied clerical abuse in both Catholicism and evangelicalism.

Perhaps tapping into the history of the seal of confession would help us scaffold our way around this debate. I will draw heavily from Bertrand Kurtscheid’s A History of the Seal of Confession, published in 1927. Though the seal of confession was not official doctrine in Christianity’s early centuries, we see the rationale for it early on.

The Privacy of Confession as Mercy

Aphraates was a Syrian Church Father during the fourth century. Writing to priests, he cautions them: “To him who shows you his wounds apply the healing penance. . . . Do not expose him who manifests it to you, lest on his account the innocent also be held guilty by haters and enemies.” [1] This is concerning private sins, but nonetheless we see a spirit of mercy here towards the penitent.

In his description of St. Ambrose, St. Paulinus writes that by keeping private sins shared in the confessional secret, Ambrose showed other priests how to “be intercessors before God rather than accusers before men.” [2]

Yet, this mercy was not exclusive to men alone. As St. Basil writes to Amphilochius, “Our fathers did not wish that women who contaminated themselves with adultery, and who accuse themselves out of fear, or are found guilty, should be publicly exposed.” [3]

There are many other such examples, showing a consistent push towards grace for the penitent. The early ethic of the confessional seal was one of pastoral protection. By the time Pope Leo I wrote a papal letter in 459, securing a seal of confession, the ethic had survived. In his letter to Campania, Samnium, and Picenum, he responded to a practice in which penitents’ sins (public or private) would be read aloud in front of an entire congregation as part of public penance. Leo expressly prohibited such a practice, warning against the “shame or fear of legal prosecution” that it produced. [4]

Conclusion

S.B. 5375 raises difficult questions about children’s safety, clerical abuse, anti-Catholicism, religious liberty, and what counts as privileged information. Though it ensures that all religious leaders are obligated to report child abuse (sexual or physical), the bill does seem to single out Catholic priests.

The Catholic clerical abuse crisis brought light to horrendous and systemic abuse within the Catholic Church, both within the US and globally. However, when it comes to the Constitution, it is very difficult justifying laws which single out religious institutions, however merited or prudent such a focus is.

And below the constitutional or jurisprudential level of analysis, the public must understand where the Catholic Church is coming from in their seal of confession. Much of public discourse focuses on the priests and the threat of excommunication, should they break the seal of confession. And while this has been church policy for a long time, historically, the seal of confession has not been about the priest. It has been about extending mercy to the penitent. Washington’s proposed legislation doubtlessly points out a limitation in the positive dimensions that the seal has, but the seal is nevertheless meant for good.

There are ways that religious communities and state governments can collaborate to ensure children’s safety. Already, the Catholic Church has undergone reforms (such as the Dallas Charter), imperfect as they are. Religious communities are responsible for prioritizing the safety of their people, especially the vulnerable. And the State still has a legitimate interest in protecting children from abuse.

What remains to be seen is what alternative pathway churches and governments can take together, while respecting each other’s autonomy and practices.