Confession on trial: an Oregon priest discovers that nothing's sacred behind prison walls.

In June of 1995 began visiting the Catholic inmates of the county jail here in Eugene, Oregon, to celebrate the sacraments. After 10 months of regular visits to the imprisoned, I was confident that the privacy of our conversations was being respected. And as I celebrated the sacrament of Reconciliation with the prisoners, I grew to appreciate even more how fundamental is the absolute confidentiality of that relationship and the freedom it creates.

In the priest/penitent relationship, where the mercy of a loving God is offered and a free response is expected to a love freely given, the guarantee of privacy must be rock solid. The Code of Canon Law establishes that the "seal" of the sacrament is "inviolable." It surrounds that relationship with very serious sanctions. Once the sacramental "forum" is established, the seal, resting on the confessor, provides freedom for the penitent. With this guarantee one can freely acknowledge sin and freely receive the gratuitous mercy of God.

On April 22, 1996 I went to the jail at the request of Conan Wayne Hale to celebrate the sacrament of Reconciliation. Since my visits were commonly restricted to the visitors' area, I was aware of the usual admittance process. The jail personnel always knew the purpose of my visit and the time of my arrival. A sign in the room prohibited the defacing of walls and windows; in addition to these restrictions was a statement: "No recording equipment allowed."

As I concluded my visit with Hale, a young man of 21, I noticed nothing unusual or out of place. My confidence, however, was about to be shattered.

On May 31 received a cryptic message from a local newspaper reporter at the Eugene Register Guard seeking my reaction to "the recording of a Confession I heard at the jail." Bewildered, I quickly returned the call. The reporter, having discovered a search warrant among public court records, wanted to know what I thought of the tape recording of my visit with Hale 10 days before.

Nearly speechless, I responded, "What do I think of what?" The astonished reporter asked, "You mean, Father, you didn't know this was done? I think they want to use this in court."

Stating emphatically, "They can't do that!" I explained the sacramental nature of this relationship and expressed the absolute expectation of its privacy. After the reporter told me he was doing a story on this in the morning paper, I hung up the phone feeling helpless and confused.

The next morning I found the incident in bold print on the front page: "Suspect's exchange with priest recorded." The story related that Hale was a suspect in a triple murder investigation and had been arrested several months before I visited with him. This "conversation," as the paper referred to it, had been tape-recorded secretly. This was the centerpiece of the story.

So began a two-year saga of twists and turns in both the legal world and my priestly ministry. Among the more disturbing developments was an explanation by the local district attorney, Douglas Harcleroad, that the purpose of the taping was for security reasons at the jail. He boldly stated on the evening news, "You never know what kind of plotting and planning is going on between visitors and inmates. Even priests and ministers have been convicted of serious crimes."

I was not a stranger to the jail. What kind of threat was I to security? I felt insulted.

Later that week, in a private meeting with the district attorney, I learned more correctly how and why this appalling action was undertaken. The taping was carried out deliberately because it was known to be the sacrament of Penance. Having obtained a copy of the warrant issued to listen to the tape--the one mentioned by the reporter--I discovered this chilling statement:

The Catholic Confession is

an integral part of Catholicism.

It is a sacrament. The

basic tenet of Confession is

that a person is absolved of

his or her wrongdoing upon

making a full and complete

acknowledgment of what

that wrongdoing is. Your

affiant has probable cause 

to believe that evidence can

be seized from an audio tape

located in the office of the

Lane County District Attorney.

The taping was undertaken in this covert manner because they understood the expected private nature of this sacramental relationship. My coming to the jail was key to their success. I had stared evil in the face.

Once the national and international media got wind of this affair, I began receiving calls from major networks and others for interviews. Although tempting, I thought a media frenzy was the last thing the archdiocese needed in such a delicate matter. Despite all the publicity, my feeling of isolation only increased.

When the Holy See learned of the matter, their disgust was understandable; they labeled the action "shameful" and "unacceptable." The Vatican agreed with then-Portland Archbishop Francis George that the tape and all transcripts should be immediately destroyed and this behavior be branded illegal. The amazement of Vatican officials was not only because such a thing happened, but that it occurred in the United States--a bastion of religious freedom and tolerance. It was a scandal without precedent.

In August and December of 1996 the case went from Federal Court to the 9th Circuit Court of Appeals which agreed to expedite it quickly. My personal patience was wearing thin. I also found myself with lingering guilt, resentment, and suspicion that led me to prayer and to keeping a journal of my feelings and thoughts during this difficult time.

As a pastor, I had not only this case to handle, but also the usual concerns of my parish and its school to deal with. I welcomed the genuine support of parishioners, my Jesu Caritas group, family, and brother priests, as well as Archbishop George. Still I was brought to the conclusion that this had become a personal cross that I would carry alone. After all, there was no priest I could go to and ask, "How did you handle this?" And I could not burden my parishioners with endless processing of my feelings.

It was this sense of personal violation that became my singular experience. And while discussing it with a Benedictine monk friend, he reminded me that this was my cross because "Jesus wants it that way." His simple statement--"Jesus wants it that way"--became a moment of grace and an invitation to identify with the injustice Jesus confronted.

My brother priests, though supportive individually, never came together in a public statement of outrage. With all the legal maneuvering around these events, it was a tough call, but I wondered if this was an opportunity that might have offered inspiration to our people. The situation was not about me so much as it was about our shared service as ministers of gospel forgiveness.

An ugly stain on the proceedings was found in the affidavit from the State of Oregon, which branded me "foolish and exceptionally naive." The interests of Archbishop George were characterized as "abstract" and "tenuous." The affidavit also made the bizarre accusation that the church could not prove that my visit with Hale was a sacrament. In this challenge to the value of sacramental forgiveness, I found myself challenged to forgive.

In welcome contrast was a friend-of-the-court brief submitted by a group of Christian and Jewish communities who joined with the U.S. Catholic Conference. The writers stated so well:

It is difficult to imagine any

more blatant and bald-faced an

affront to the basic tenets of a

religion, short of intentionally

committing acts of sacrilege as

a matter of state policy.

This offered some hope as we awaited the opinion of the 9th Circuit Court following our hearing in December 1996. When it finally came in January of 1997, the opinion found the secret taping both illegal and a violation of the First and Fourth Amendments. The court ordered an injunction forbidding this action in the future, but did not order the destruction of the tape. The court's finding did, however, contradict District Attorney Harcleroad's opinion that the recording was legal and ethical.

This final ruling was welcomed with gratitude by Archbishop George, the American Catholic bishops, and many others. I too was grateful for some sense of closure, but more was still to come. The recording still existed, as did a lingering threat that the state would use the tape in court as evidence. This unparalleled event draws together two interests that stated in the amicus brief: "The importance to a broad spectrum of religious traditions of the process of repentance and reconciliation... and the recognition that the free exercise of religion is entitled to a high level of constitutional protection."

Throughout my 20 years of priestly service---and particularly over these past two years--I have come to appreciate how fundamental is that First Amendment protection of this sacred privacy of sacramental reconciliation. In this information age, where we often feel our privacy threatened, reconciliation stands as one of the few truly confidential relationships in today's society--perhaps the only one we have left.

Not only must reconciliation receive continued legal protection, but this protection must be raised to a higher level due to the sacred relationship it establishes. The circuit court's determination that this clandestine taping violated both the Fourth Amendment and my civil rights serves to support this protection. The expectation of privacy contained in those protected confidential relationships of attorney/client, doctor/patient, and clergy/ penitent is not only essential for establishing trust, but is intrinsic to maintaining balance and order in society. If we lose trust in these most personal of relationships, where will this erosion of privacy and religious rights end?

After two months of hearings in 1998, the jury came in with a guilty verdict on all counts and sentenced Hale to death. The tape, although its existence was mentioned in the opening arguments, was never used in any way as far as I can tell. But it still has not been destroyed. The laws of evidence and the appeals process may prevent it from being destroyed any time soon.

The deliberate actions of state and county authorities against my ministry and the religious rights of the penitent can only have been born of the gravest disrespect. Was this an isolated experience? As we say here in Oregon: "Never turn your back on the ocean."

By Father Timothy Mockaitis, pastor of St. Paul Catholic Church in Eugene, Oregon.