Story of Oregon illegally & secretly videotaping confession

SALEM, Oregon, AUG. 26, 2009 (Zenit.org) - When Father Timothy Mockaitis heard inmate Conan Wayne Hale’s sacramental confession on April 22, 1996, he had no idea it was being recorded.

He also didn't know that the event would spur an unprecedented legal case that attempted to demonstrate that a violation of the seal of the confessional was an infringement on the free exercise of religion guaranteed by the First Amendment to the U.S. Constitution.

Father Mockaitis details these pivotal events in his new book, “The Seal: A Priest’s Story.” The pastor of Queen of Peace Catholic Church shared with ZENIT how this case involved not only canon law versus civil law, but also a threat to the long term viability of our Constitutional freedoms.

ZENIT: You filed a lawsuit to prevent disclosure of the contents of the confession. What were your legal claims?

Father Mockaitis: Our legal position was based essentially on First and Fourth Amendment violations, which concern religious freedom and protections against illegal search and seizure.

We also claimed civil rights violations against privacy. This was an offense against not only the Church, but against the penitent himself.

But we also raised moral and ethical objections that this particular and deliberate intrusion by the state was one incident that could never be justified for a greater good.

The integrity of both the Constitution and an unmistakable explanation of Canon Law, and the centuries-old tradition of the Church about the absolute secrecy of the seal in the sacrament of reconciliation, were all presented in this case.

It was the first time an attempt was made in court to define a violation of the seal of confession as a First Amendment violation.

The state consistently claimed the tape as among the body of evidence in its investigation.

A priest comes to the confessional in a parish church, a jail cell or a hospital bedside not as a judge and jury, but as a pastor of souls.

The actions of the state, and the response of the Archdiocese of Portland, set up a never-before-test of the American Constitution. I felt state authorities had backed themselves into an untenable legal corner.

ZENIT: American law normally protects something called the priest-penitent privilege, like the attorney-client privilege. How did that figure into your case?

Father Mockaitis: The priest-penitent privilege, like the attorney-client privilege, is granted in this country from the common law of the land. Civil authorities knew this was a sacrament of the Church and they secretly taped it because it was that sacrament; they had the audacity to cross this line between the values of Church and state.

In Oregon as of 1996, if one party -- in such a relationship as priest-penitent -- was willing to reveal information and wave the assumed confidence, then the other party could not object, despite his or her desire to maintain the privilege.

However, neither the penitent nor myself as confessor knew of the taping. By the time I got wind of this surreptitious act done with the approval of the local district attorney, a warrant had already been issued and signed by a local judge for law enforcement authorities to listen to the contents of the tape.

As priest and confessor I was forbidden to grant any waiver of the confidence from the sacrament, so from the beginning there was no doubt the priest-penitent privilege had been violated. We demanded the immediate destruction of the tape and its written transcript.

One footnote to mark is that as a result of this case, about two years after litigation, Oregon revisited the priest-penitent privilege and granted protection for the priest (or member of any clergy) who could claim immunity from public testimony if he and his religious organization had an expectation of privacy.

The seal of the sacrament would certainly meet those criteria.

ZENIT: Are there other stories like yours of the seal being broken? Is this a growing phenomenon? Do you see it as part of a trend about disrespect for religious freedom?

Father Mockaitis: No incident as is described in "The Seal" had ever come before a court of law in this country. The late William F. Buckley wrote, in his estimation, this action was “naked fascism, truly the end of the line.”

I don’t believe it is likely that secret eavesdropping on conversations between priests and penitents is a growing trend in this country, but the revelation of truth and the limits that the law allows between civil authorities and clergy are being pushed to more narrow levels.

For instance, just a few years ago Connecticut almost passed a law requiring priests to report certain crimes that are disclosed in the confessional.

The sad and painful saga of clergy sexual abuse in this country has indeed made professional confidence a more tenuous protection. Yet, it seems to me, the search for truth has in many cases gone well beyond professional respect and reasonable investigation to reach a far more intrusive and disrespectful level.

ZENIT: Why is there a seal of the confessional? Didn’t penitents once confess their sins publicly in church to the whole assembly?

Father Mockaitis: I believe the seal of the confessional finds its greatest justification in the protection of the integrity of the sacrament and for the safety and respect of the individual penitent.

Although, in the early centuries of Christian history, we do hear of the public acknowledgement of sins and the exercise of public penance, some sense of personal privacy was always a part of this sacrament.

The seal guarantees that whatever may be shared between priest and penitent will forever remain confidential.

To know this truth is to grant instant trust for the penitent to speak openly and honestly about whatever his or her struggle with sin may be. The seal creates an environment in which the penitent can be disposed to receive the grace of healing from a God of mercy.

ZENIT: Why shouldn’t the seal be broken when a great public good could come about? Don’t priests usually instruct those who committed a heinous crime to turn themselves in to the police as part of their penance anyway?

Father Mockaitis: What would be the greater good that might justify the revelation of a sacramental confession: the good of the soul of the penitent or some piece of so-called “evidence” that might lead to the conviction of guilt or innocence of an individual?

While the safety of citizens is crucial for the common good, is there no other ethical and legal way to search for evidence besides the invasion of the sacred trust established in the sacrament?

Law enforcement has developed myriad ways to seek evidence for the conviction or innocence of an individual that would make the eavesdropping of a conversation between priest and penitent a desperate method of investigation.

The purpose of a penance is to seek justice, to repair the damage done by sin and to accept personal responsibility for one’s actions.

In the course of conversation between priest and penitent, in the case of a serious crime, the penitent may come to the realization that submission to authorities is the most appropriate way to be granted forgiveness.

But, if an individual has come to the sacrament properly disposed and sincerely seeking reconciliation, the priest is obliged to carry through as a pastor of souls, not as a police officer.

ZENIT: Your case received some attention in the media. What was the general public reaction to the recording of the sacrament? Do you believe the public’s response is a barometer of peoples’ views about the importance of religious freedom?

Father Mockaitis: This case received an enormous amount of media attention.

However, the reaction of the mainstream population was far more visceral. Universal shock, outrage, insult and fear about a new disrespect for people of faith were not uncommon.

Good people knew this was neither about the Catholic Church alone, nor about this sacrament alone, but rather about our Constitutional protections in the long run. I was amazed and edified by the united voice of concern well beyond the Catholic Church.

ZENIT: What happened to the tape recording of Hale’s confession? Was it ever used in evidence or destroyed?

Father Mockaitis: Despite the state authorities’ and the District Attorney’s promise at that time that the tape would be destroyed after the murder trial of the inmate, the tape still exists to this very day.

The ultimate finding of the Ninth Circuit Court of Appeals that this action was a blatant violation of the First and Fourth Amendment made the action of this taping illegal.

Although it was never played during the trial of the inmate, the tape was not destroyed a year after the Appeals Court issued its opinion in January of 1997.

For what purpose does it remain more than 10 years since the inmate’s trial?

It remains a red flag of warning for all those who treasure our First Amendment protections.