A Delaware superior court judge has questioned the constitutionality of a state law that protects the secrecy of sacramental confession.

State law mandates the reporting of suspected child abuse except in cases covered by the attorney-client privilege and conversations “between priest and penitent in sacramental confession.”

Ruling in a case involving the failure of elders of the Jehovah’s Witnesses to report child abuse, Judge Mary M. Johnston said that if “priest,” “penitent,” and “sacramental confession” are interpreted narrowly, then the law is unconstitutional because its “effect would be to advance certain religions over others.”

If, however, the law were interpreted broadly to include confidential conversations in which members of any religious body express sorrow for their deeds to their religious leaders, then a ruling that the law is unconstitutional could be avoided, Judge Johnston said in her January 26 decision.

“A broader reading may be justified because the terms at issue are neither defined nor upper case,” she added.

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