And apparently now, the plaintiff’s lawyer has confirmed he does not want the priest to testify. I thought so, since that leaves no defense to the plaintiff’s claim.
See:
ncregister.com/dail… to wit: “Brian Abels, who is representing the girl and her parents, told a local news station he had no intentions of forcing Father Bayhi to testify. He said he only wanted the girl to be able to relate to the court her description of the confessions, where Father Bayhi’s alleged advice was to “sweep it under the floor and get rid of it.”
“Her testimony has been it [the confession] was more of a plea for help, counseling, and that plea, according to her, went unheeded,” Abels said.
BTW, if that is the only way the priest knew, it seems to me that existing La. law, cited in the La. SC’s opinion, would exempt the priest from being a mandatory reporter, as the exemptions to mandatory reporting are not limited to Catholic clergy, but rather any communications intended, IIRC, to be confidential and with a clergyman. It would then seem that, as jroberts noted below, that perhaps an objection on grounds of relevance or other inadmissibility would proper, but that was not the subject of the appeal.
That’s the civil law take. By canon law, the priest would not be able to testify in his own defense on his side of the civil case. Ed Peters’ blog mentioned in passing once that there is some question as to whether the penitent can in fact release a priest from the seal, but did not really get into the rationales pro and con:
canonlawblog.wordpress…
FYI. Above is my post to the combox on Mark Shea’s personal blog at Patheos.
The LA SC did not state that “he could not cite privilege in order to not testify”; that issue was not before it.
Again, we are talking about two different things, a civil law privilege against being called to testify in favor of the person who is speaking to a clergyman, that is, the person speaking to the clergyman can invoke a privilege against having the clergyman testify as to what the person said to the clergyman, and the canonical seal (which the civil courts do not really recognize).
In this case, the clergyman tried to use the privilege to prevent the person who spoke to him from testifying about what was said to him. Usually it would be the other way around, i.e., the clergy would be called to state what the penitent said to him. LA SC said the privilege was for the penitent to invoke, to keep the clergy from speaking, not the other way around. It does not work to prevent the penitent’s testimony. I think that is a correct reading of civil law, as far as it goes.
Second: it’s just an attempt to get a nice check from the Diocese. Sigh. OK. should we not approach this in charity from the viewpoint of the parents, whose daughter was being at least molested - - anyone would be upset and angry.
Third: Could you expand on the need by lay Catholics to use ecclesiastical processes before resorting to civil law? I suspect there is a remedy for, essentially, ‘bad’ or ‘negligent’ advice given in spritual counseling or the sacrament
Fourth: more of my take on the issues, from a post at the (bad) NCR:
It appears to me that the most favorable interpretation of what the diocese did, in moving to attempt to preclude the girl’s testimony, is that the diocese is claiming, that by allowing her to testify, the priest (and pretty much by extension the diocese) is put in the position of it being impossible to defend himself without breaking the seal of the confessional; again, that is, I think, the absolutely best face that can be put on the diocese’s statement, and that’s giving them the benefit of every doubt. I wonder if the diocese’s brief is available online anywhere?
Anyway, I think jroberts and joshua decuir below in the comments have more or less identified the competing interests. Jroberts has correctly pointed out, to the diocese’s argument, so what? LA civil law is not concerned with canon law. beyond the limited privilege it provides, and which the plaintiff is not even contesting. If the priest’s case is harder to defend, too bad, the argument goes. You make your choices, diocese and priest.
Mr. Decuir alludes to, I think, a fairness argument, i.e., if the priest cannot testify as what the girl said, what he said, or even that he saw her in confession (for which there are various and sundry good reasons), it is not fair to allow her to testify to what he said, etc.
Either way there is an injustice. Either the victim cannot offer evidence to prove her case, or the priest cannot offer evidence in his defense. Realistically though, it probably takes less than a minute to come to the conclusion that the scales are going to tip in favor of the victim, and rightly so, I think, at least at first pass. I mean, civil law is not going to care at all, but as to the justice of the situation.
All that being said, I still don’t think the LA SC should be looking into whether something was :“really” a confession, again at least in these circumstances as I understand them. The only inquiry on the remand should be if the priest knew from some other source, from which he then had a duty to report.
Although I’m not sure how he could go about doing so.