Religious Freedom and the Sanctity of the Confessional

The Florida Evidence Code apparently requires clergy to testify about confessions to them, if the penitent allows them to do so -- but Catholic doctrine forbids any such testimony, regardless of the penitent's wishes. Which should prevail?

To my knowledge, all American states have an evidentiary rule under which clergy can generally refuse to testify about confessions, if they believe such confessions to be confidential. (The confessions are often called "penitential communications," to stress that they need to be Catholic-style confessions.) But the Florida Evidence Code apparently treats this as primarily a right of the penitent; thus, if the penitent says she would like the clergy member to testify, the clergy member can be ordered to do so.

The Catholic Church, though, apparently takes a different view: It believes the clergy member cannot reveal things said in the confessional, regardless of whether the penitent wants them revealed. Here's how this played out in today's Florida Court of Appeals decision in Ronchi v. State.

In June 2017, Loren Burton was charged in a four-count information with committing sexual offenses against a minor. The charged offenses were alleged to have occurred when the alleged victim was seven years old and when she was thirteen years old. The record reflects that the criminal investigation of Burton commenced after the alleged victim, then seventeen years old, disclosed to her mother that she had been sexually abused by Burton.

In August 2017, the State filed a notice of intent to introduce child hearsay statements … [under a Florida evidence rule that] statute permits the introduction of out-of-court statements made by a child victim with a physical, mental, emotional, or developmental age of sixteen or less that describe any act of sexual abuse against the child provided that, inter alia, the time, content, circumstances or the statement provide sufficient safeguards of reliability. Here, the State alleged that when the alleged victim was fifteen years old, she disclosed to Ronchi that Burton had sexually abused her.

Ronchi objected, arguing, among other things, that the Florida Religious Freedom Restoraction Act entitled him to an exemption from the usual duty to testify. And the court agreed, at least on the facts of this case:

FRFRA expressly provides that the government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

A substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. In the instant case, the record establishes that if Ronchi complies with the State's demand that he testify as to his communications with the alleged victim during the Sacrament of Reconciliation, Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court's order can only be upheld if the State establishes that coercing Ronchi's testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.

Here, it is undisputed that the State has a compelling governmental interest in prosecuting sex offenses perpetrated against children. However, we disagree with the State's contention that coercing Ronchi to testify regarding communications that occurred during the Sacrament of Reconciliation, in contravention of his sincerely held religious beliefs, would be the least restrictive means to further its compelling governmental interest of prosecuting Burton.

First, as the State acknowledges, the testimony of Ronchi would, at most, be corroborative evidence. There is no allegation that Ronchi was a witness to any sexual abuse. Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events. Third, … the State could seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse to Ronchi.

Because we conclude that the trial court's order contravenes FRFRA, we grant the petition and quash the trial court's order to the extent that it required Ronchi to "respond to the subpoena and … be questioned about the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse."

This reasoning might yield a different result, though, when the evidence really is necessary for the accurate resolution of the underlying prosecution (or even civil lawsuit). Some state clergy-penitent privilege statutes do by their terms provide an absolute right for the clergy to refuse to testify, regardless of what the penitent wants—but if the clergy can't prevail under that specific statute, and have to instead call on the state RFRA, then their RFRA right to a religious exemption can be overcome by a showing that requiring them to testify is the least restrictive means of serving a compelling government interest.

To be sure, some might argue that requiring a priest to testify isn't the least restrictive means of getting testimony, because it would fail to get the testimony: Catholic priests seem likely to be unwilling to break the confessional even if they are threatened with jail. I'm not sure how that argument would play out (and whether it would yield one result for priests of religions that are notoriously insistent on confidentiality and another for clergy that are less militant and thus perhaps more open to being swayed by the threat of jail). But in this case, the court didn't have to reach this complicated question, because the priest's testimony wasn't seen as important enough to the justice system.

Finally, some might ask: Given that we have a conflict between a state RFRA statute and state evidentiary statute (the general duty to testify, as modified by the relatively narrow Florida clergy-penitent privilege), why should RFRA prevail? The answer is that RFRAs are deliberately crafted, and deliberately enacted by legislatures, as potential exceptions to the whole body of the jurisdiction's law, including criminal laws, zoning laws, evidence laws, and more; courts likewise interpret them that way.