Church sued

[pogi]

7 hours ago, smac97 said:

Don't judge her too harshly on that language.  It's legalese.  Her lawyer is saying it.  It's a hoop he has to jump through.

Thanks,

-Smac

There has to be some truth to it in describing her position and feelings on the matter though.  Why else would she be suing the church?  It is classic codependent behavior where she is enabling her husbands bad behavior by blaming other people for all the problems it brings.

Edited January 9, 2020 by pogi

[provoman]

7 hours ago, smac97 said:

Thanks,

-Smac

 

If "confession" is regarded as a one-one-one (or in the case of Jehovahs Witness confess to a group of "clergy), would a non-clergy in room negate confidentiality of a confession. 

So from a legal stand point, If the wife was present while confession was taking place, would her presence have negated the confidentiality of the confession? 

[katherine the great]

Frankly I’m glad the guy is in prison. I hope he stays there for a very long time. I hope the church settles with this woman and settles on behalf of the good brother who did the reporting. Predatory pedophiles are the lowest rung of humanity and need to be kept away from children at all costs. Going through the church discipline system just isn’t enough.  

[Bernard Gui]

16 hours ago, smac97 said:

So it sounds like Bro. Saari learned of the confessed misconduct in his capacity as a counselor in the bishopric, either inadvertently or else as such information was disclosed to him during disciplinary proceedings.

As a bishop, I learned of a case of child abuse through confession, but as a teacher I was obligated by law to report abuse allegations no matter the source. Consulting with my SP and he with SLC,  it was determined that because I had learned of it through confession which was privileged, I was not required to report it. This was a while back, though. 

Edited January 10, 2020 by Bernard Gui

[The Nehor]

2 hours ago, Bernard Gui said:

As a bishop, I learned of a case of child abuse through confession, but as a teacher I was obligated by law to report abuse allegations no matter the source. Consulting with my SP and he with SLC,  it was determined that because I had learned of it through confession which was privileged, I was not required to report it. This was a while back, though. 

I believe this is how it works. If one is a mandatory reporter in one occupation and communication is privileged in another I believe the privilege takes precedence. It is also good to note that in many states everyone is a mandatory reporter and failing to report is a crime though usually only a misdemeanor.

I agree that this case is not likely to go anywhere. The privilege is held by the person confessing in most states, including Oregon. He might be able to sue but she is not the injured party in regards to a privilege violation. He was the one who was directly impacted as well. Everything that happened to her was indirect and a result of her husband pleading guilty to a crime he confessed to. The church is not culpable for the aftermath of his choice to molest children. He is. It is saddening that she suffered but it is only his fault. This assumes of course that she was not complicit in covering it up in some way.

[The Nehor]

8 hours ago, provoman said:

If "confession" is regarded as a one-one-one (or in the case of Jehovahs Witness confess to a group of "clergy), would a non-clergy in room negate confidentiality of a confession. 

So from a legal stand point, If the wife was present while confession was taking place, would her presence have negated the confidentiality of the confession? 

Not in most states where this argument has been tried in the past.

[Robert F. Smith]

21 hours ago, Calm said:

This seems to be the prime issue. He was promised confidentiality, perhaps before any awareness of what he would confess (more likely something non criminal) so there wasn’t the condition added “unless it involves ....” and didn’t get it. 

My understanding is lawyers, doctors, tradespeople may lose their license to practice because the organization providing the license has standards of behaviour, but it is not a criminal act (unless fraud is involved) so there would be no legal implication.

With churches, there is even less involvement with government as they don’t use an organization to determine who can or cannot work in religious jobs. 

So having said all that, could they claim fraud on any basis?  Maybe using tithing to set up a contractual relationship?

Seems unlikely.  Can contracts of association be taken to court even?  Like can someone be sued for not showing up on their wedding day, for example (a commitment made and then broken).

The problem is the common understanding of the penitent person.  Does he reasonably believe that his confession will held confidential and inviolate?  Does the law permit the priest/pastor/imam to disclose anything to anybody without permission of the penitent?  If it is disclosed, despite such prohibitions, can such disclosure be used as evidence in a court of law, or will it then be considered fruit of the poison tree?  And is the priest then liable for civil penalties?  Yes.

Even a police officer must inform a suspect of his rights before questioning him as a suspect.  Otherwise any evidence or confession gathered is inadmissible in court.

If a Catholic Priest discloses a confession, he has breached his sacred duty to God.  He must be willing to die before making such a disclosure.

An attorney can be disbarred for disclosure, a physician can lose his medical license, and a psychologist may lose his license.  Such professionals must also store their records so as to be secure, and must destroy them at the appropriate time.  Failure to exercise due care can result in substantial lawsuits.

[Calm]

12 minutes ago, Robert F. Smith said:

And is the priest then liable for civil penalties?  Yes.

Some mandatory reporting laws protect reporters from liability. 

[Calm]

27 minutes ago, Robert F. Smith said:

Even a police officer must inform a suspect of his rights before questioning him as a suspect.  Otherwise any evidence or confession gathered is inadmissible in court.

A pastor is not an officer of the government, so unless mandatory reporting makes them such, don’t see why same rules would simply be assumed to apply.

I have never had a doctor or therapist inform me that if I confessed criminal behaviour to them I was at risk for being reported, even in places with mandatory reporting for doctors.

I will have ask my sister the elementary teacher if she has to announce to her class or their parents that she is required to report. 

A minister would be closer to the above than a police officer.

Police officers would be where you start the requirement (the “even” implies there is something remarkable in requiring officers to mirandize)

Edited January 10, 2020 by Calm

[smac97]

11 hours ago, provoman said:

If "confession" is regarded as a one-one-one (or in the case of Jehovahs Witness confess to a group of "clergy), would a non-clergy in room negate confidentiality of a confession. 

In some situations, yes, it can negate the confession.

11 hours ago, provoman said:

So from a legal stand point, If the wife was present while confession was taking place, would her presence have negated the confidentiality of the confession? 

Probably not in this situation.  If the wife was present, she too has a privilege against being compelled to testify (see here).

By way of analogy, if a client is talking to an attorney about a privileged matter, and another attorney at the same firm is invited in to hear it, that other attorney is not a "third party" whose presence would negate the privilege.

Thanks,

-Smac

[PacMan]

21 hours ago, smac97 said:

Here is an interesting remark from the attorney representing the wife:

Um, no, that's not even close to correct.  The Church provides religious instruction and pastoral care.  It has no interest in intruding into the purview of "law enforcement."

The article goes on:

Hmm.  It sounds like "one member of the panel," the bishopric counselor, received the information about the confessed misconduct in his formal capacity, as a participant in a disciplinary council (the "panel").  

Does the priest/penitent privilege extend to counselors in a bishopric in such circumstances?  I would think so.

Did the counselor therefore breach the privilege?  It looks that way.

Did the counselor seek or obtain authorization from the Church to notify law enforcement?  I really doubt it.

Did the counselor have the legal obligation (he's a pharmacist) to notify law enforcement?  This is not immediately clear, but again, I doubt it.

Did the counselor "go rogue"?  It looks that way.

Should he have "gone rogue"?  Honestly, I think the hard answer is "no."  The privilege exists for a reason (several reasons, actually).  This story is getting quite a bit of press attention.  How many members of the Church now know about it?   If and when one of these members engages in serious misconduct, will he now be less likely to trust the local leaders and the Church to keep the privilege?  Will he therefore be less likely to confess the misconduct?  Will he, no longer trusting that his confession will be kept confident, instead continue the misconduct, or regress into worse stuff?  

This seems like a parade of horribles.  And in this case, the counselor's apparent breach of the privilege had a fortuitous result.  I'm just concerned that he may have also substantively undermined trust in the repentance process the Church has put in place for those who need it most.

Back to the article:

I'm actually glad to hear she's still in the Church.  I think her lawsuit is legally/morally problematic, that is neither here nor there.  I hope she can navigate the choppy waters ahead.

See also here: "‘{The leaders should have said} "Look, before you come in here and say this, we need to tell you ...we’re going to report you,"' Brandt said to the Oregonian."

Well, apparently he did have a "history," since he admitted to the misconduct (described here as "repeated sexual contact with a minor").

Moreover, this argument seems odd.  Is Mr. Brandt seriously suggesting that clergy have a duty to, in essence, give a Miranda warning to anyone who meets with a bishop?  "Good morning, Brother Jones.  I appreciate you scheduling an appointment with me.  Let's start with a prayer.  But before that, I need to tell you that if you tell me about sexually abusing children, I will report you to law enforcement.  Clear enough?  Okay, let's pray..."

My understanding of the state laws, and the facts of this story, is that the privilege should have been in place, but that the counselor in the bishopric violated it.  If that's Mr. Brandt's theory, then his argument " that clergy members erred by not warning him that they were obligated to report him to the authorities" doesn't work.

That's a legitimate concern.

Thanks,

-Smac

I’m going to have to disagree with you here, Smac. Generally, counselors are not covered under priest-penitent. It would be something indeed for the law to extend so far. And if it does not, all the other arguments relying on privilege come tumbling down. 
 

Also remember, this isn’t about confession. he already did that. This is a disciplinary court that the perpetrator voluntarily attended as part of his discipline. And one of the parts to church discipline is legal enforcement. If he didn’t want it reported, he shouldn’t have attended the council having already confessed. 
 

I don’t see this counselor as going rogue. I see as this is a brilliant strategic move for the church. It was the guy least likely to have privilege while having a tangential professional obligation to report. If the court goes against the church, can you imagine the outcry?  The church should be willing to spend the $7.5 million just to see this case to trial - even to lose. 

[smac97]

7 hours ago, katherine the great said:

Frankly I’m glad the guy is in prison.

Well, yes.  He committed a crime, and so should be punished.

I am somewhat disconcerted at how he got there, though.  The privilege is a concept with important legal and religious meaning and impact.  Here, it appears that a counselor in the bishopric learned of the abuse in his capacity as a participant in a disciplinary proceeding against this person.  The counselor appears to have breached the privilege by reporting the matter to law enforcement. 

And now this story is getting a lot of press coverage.  I am concerned that members who have committed serious wrongs (such as sexual abuse of a child) may read it and become less inclined to confess his conduct to their bishops.  The misconduct will therefore go unrepented of, and also undetected.

And if that misconduct is ongoing, the bishops will not know about it, and will therefore not be situated to stop it.

Quote

I hope he stays there for a very long time.

He was sentenced to 15 years.

Quote

I hope the church settles with this woman and settles on behalf of the good brother who did the reporting.

I'm not sure what I think about that.  If the privelege was breached, then that is a serious thing.  However, I'm not sure it is a serious thing that can or ought to be resolved through a civil lawsuit.  I'm not particularly comfortable with the idea of members using the civil courts to sue the Church for the violations of its own policies and procedures.  Such lawsuits would require the courts to make inquiries as to the management of the Church's internal religious matters, and would possibly result in the courts punishing the Church for how it manages those matters. 

I'm not sure the civil courts have authority to do that.  It's called the "ecclesiastical abstention" or "religious autonomy" doctrine.  See here:

Quote

The First Amendment is premised on the notion that “both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.” Aguilar v. Felton, 473 U.S. 402, 410 (1985) (quoting McCollum v. Bd. of Educ., 333 U.S. 203, 212 (1948)). As such, both Religion Clauses—the Establishment Clause and the Free Exercise Clause—work together to protect the autonomy of religious organizations and avoid excessive entanglement of secular and religious authorities. Based on these reinforcing First Amendment protections, state and federal courts have long abstained from interfering with the internal affairs of religious organizations under the religious autonomy doctrine.

The religious autonomy doctrine dates back to this Court’s decision in Watson v. Jones, 80 U.S. 679 (1871). Watson set forth a general “rule of action which should govern the civil courts”: “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Id. at 727. The Court explained that this principle of deference to religious organizations on questions of doctrine and faith is “founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority.” Id.

After the First Amendment was extended to the States by incorporation through the Fourteenth Amendment, the Court reaffirmed Watson and explained that the First Amendment grants to “religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff, 344 U.S. at 116. And the Court subsequently emphasized that “First Amendment values are plainly jeopardized when {religious disputes are} made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969). 

This doctrine of abstention is essential both to prevent Establishment Clause concerns with excessive entanglement between religious organization and secular courts, and to promote free religious exercise: “If civil courts undertake to resolve such controversies …, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.” Id. In short, “{t}his is a situation where the two clauses work to the same end.” Paul G. Kauper, Church Autonomy and the First Amendment: The Presbyterian Church Case, 1969 S. Ct. Rev. 347, 375 (1969). 

As you can see, this doctrine has its roots in constitutional protections, so it could be a fairly significant factor in determining whether this lawsuit can proceed.

There are other potential impediments to the lawsuit proceeding as well (see here).

Quote

Predatory pedophiles are the lowest rung of humanity and need to be kept away from children at all costs.

Well, no.  Not at all costs, surely.  Surely everyone, even "predatory pedophiles," are entitled to due process and other legal protections.  

Quote

Going through the church discipline system just isn’t enough.  

I quite agree with you there.  But if the issue here is whether bishops should keep the privilege, I think they should.

Thanks,

-Smac

Edited January 10, 2020 by smac97

[smac97]

1 hour ago, PacMan said:

I’m going to have to disagree with you here, Smac. Generally, counselors are not covered under priest-penitent.

"Generally," yes.  But I think to the extent they learn of the misconduct through a disciplinary council, they are covered.  Otherwise, the privilege would be effectively gutted.

I haven't researched the matter, though, so I am open to correction.

Quote

It would be something indeed for the law to extend so far. And if it does not, all the other arguments relying on privilege come tumbling down.

Well, I wonder about that.  If an attorney is bound by the privilege pertaining to information he receives as an attorney, wouldn't his support staff also be bound by the privilege - even though they are not attorneys?

Similarly, if a counselor in a bishopric is asked to participate in a disciplinary council, and during that council receives information that is privileged (confessed to the bishop by the perpetrator), wouldn't he be bound by the privelege as well?

Quote

Also remember, this isn’t about confession. He already did that. This is a disciplinary court that the perpetrator voluntarily attended as part of his discipline.

I'm not sure we can split that hair.  I doubt the Church's position on this is something like "Yes, we instruct bishops to comply with the privilege, but only when the matter is first reported.  So when the matter later results in a disciplinary council (per the Handbook, abuse of a child triggers a mandatory council), all bets are off and the bishop and anyone else involved in the council are free to disregard the privilege and report the matter to law enforcement."  That doesn't make sense to me.

Quote

And one of the parts to church discipline is legal enforcement. If he didn’t want it reported, he shouldn’t have attended the council having already confessed.

Well, I wonder about that.  If the plan was to go to law enforcement, it sounds like Mr. Johnson wasn't told about that.  So his attendance at the disciplinary counsel was not really "voluntary" in that deceit (through nondisclosure) was involved.  Do you really think that is how church disciplinary councils work?  How they should work?

Moreover, if the plan was to go to law enforcement, why was it reported by the counselor rather than the bishop?  That seems really odd.

This case presents some interesting questions.

Quote

I don’t see this counselor as going rogue. I see as this is a brilliant strategic move for the church.

A "brilliant strategic move" amounting to . . . deceit?  As a means of circumventing the privilege of confidential communications with a bishop?  "Let's persuade members to confess their serious misconduct to the bishop under the auspices of confidentiality, then use chicanery to circumvent those auspices by having a counselor in the bishopric leak the supposedly privileged communications to law enforcement."

I don't think the Church resorts to "strategic move{s}" like this.  I think the Church takes the privelege seriously.  That means honoring it.  So if a person confesses to child abuse, the bishop can and should encourage him to turn himself in to law enforcement.  However, what if the individual simply refuses to do so?  Are the bishops then free to violate the privelege and report him to law enforcement?

I don't think so.  Consider this story (from 1994, but I think it's still up to date):

Quote

A person's conversations with clergy cannot be revealed, even if that person isn't making a formal confession, the Utah Supreme Court has ruled.

The court's ruling clarified two points: members of all religions have a right to expect visits with their clergy to be confidential even if those religions don't include formal confessions, as the Catholic Church does, and someone seeking advice from clergy has the same right to confidentiality as someone admitting a wrongdoing.In a 5-0 decision released Monday, the court ruled that even non-penitent conversations with church leaders are confidential if the person intends them to be, if he is seeking spiritual guidance or if the conversation is part of church discipline.

"This ruling is an important restatement of the law so people in Utah can feel confident that they can talk to their priests, rabbis and bishops and know that what they say in confidence will be kept in confidence," said Oscar McConkie Jr., attorney for The Church of Jesus Christ of Latter-day Saints.

I don't think the attorney meant: "{P}eople in Utah can feel confident that they can talk to their priests, rabbis and bishops and know that what they say in confidence will be kept in confidence.  However, there are no confidences kept as to confessions of serious misconduct.  Those things are reported to law enforcement."

Quote

It was the guy least likely to have privilege while having a tangential professional obligation to report.

This sounds Machiavellian.  I do not believe the Church would act this way.

The privilege is, or can be, a very important part of the repentance process.  The Church keeps both the letter and the spirit of it.  The Church has a strong motivation to do so.  It engenders trust in the bishops of the Church.  In incentivizes confession and disclosure.  The bishop receiving the confession can then take action to stop the abuse (such as by encouraging the abuser to stop, to move out, to turn himself in to law enforcement, etc.).

All of that would be undermined by the sort of trickery you are attributing to the Church.

I think the counselor went rogue.  He was almost certainly well-intentioned.

Quote

If the court goes against the church, can you imagine the outcry?  The church should be willing to spend the $7.5 million just to see this case to trial - even to lose. 

Honestly, I don't think the Church is going to try to justify the apparent breach of the privilege (assuming that is what happened).  However, I think the Church will oppose the lawsuit on alternative grounds, namely, the Ecclesiastical Abstention / Religious Autonomy doctrine.  The Church doesn't want civil courts in the business of investigating how the Church handles its internal processes.  There are other reasons the suit could/should fail, as well.

Thanks,

-Smac

Edited January 10, 2020 by smac97

[smac97]

Here's another thought: What about the "Fruit of the Poisonous Tree" doctrine?  Is it implicated here?  If so, did the defense attorney raise it to exclude some or all of the evidence accumulated against his client?  If not, why not?

Thanks,

-Smac

[katherine the great]

2 hours ago, smac97 said:

Well, no.  Not at all costs, surely.  Surely everyone, even "predatory pedophiles," are entitled to due process and other legal protections.  

Legally, in America, yes.  You're speaking as a lawyer so yes to that. I'm speaking as a mother and grandmother so no to that. I see no evidence that adult pedophiles are curable and until I do, I believe they should be locked up and leave them to the Lord (who is more compassionate about this issue than I am). IMO, the well being of children should be first always. I just don't buy the argument that a confession of this type of child abuse should be kept confidential (maybe with the exception of young offenders and if so, they need to be ordered into intense psychotherapy and lots of follow-up). I'm curious how many people on this board who have children would favor confidentiality if it was their own child who had been molested. The Bishop knows. His counselors know. The Stake President knows. Everyone on the High Council knows. There really isn't any true confidentiality in the church discipline system anyway. And none of them can tell the one organization with the power to really stop that person from hurting other children? IMO, it's just wrong. 

There's no ideal solution because in an ideal world, pedophiles would not exist. Would the rate of confessions drop with mandatory reporting? Most likely. But what good is all the church discipline if, in all likelihood that person will eventually do it again?

Overall, I think our leaders are wonderful, salt-of-the-earth people. From the church's side though, the one thing that I'm really having a hard time processing is this attitude I sometimes see of not reporting unless it is mandatory to report. I just don't get it. And would they have that same attitude if one of the victims was their own child? Even an anonymous call to social services would be something better than silence.

[Tacenda]

9 hours ago, Bernard Gui said:

As a bishop, I learned of a case of child abuse through confession, but as a teacher I was obligated by law to report abuse allegations no matter the source. Consulting with my SP and he with SLC,  it was determined that because I had learned of it through confession which was privileged, I was not required to report it. This was a while back, though. 

I'd report it anyway, but that's just me, because the child is in danger. I'd risk going to jail. The laws don't make sense at all to me. If someone saw a child run in front of a car, we'd save that child, to me that's no different. Why in the world can't someone confess and pay the price for their crime? And still go through repentance. I understand that maybe a lot won't confess if the laws change, but the balance is in favor for reporting, IMO. Too many go unreported, and hopefully the mother or parent that is married to the perp, can get some help with paying the bills etc. so that the child isn't continually abused.

Edited January 10, 2020 by Tacenda

[smac97]

3 minutes ago, katherine the great said:

Quote

Well, no.  Not at all costs, surely.  Surely everyone, even "predatory pedophiles," are entitled to due process and other legal protections.  

Legally, in America, yes.  You're speaking as a lawyer so yes to that.

I'm glad we can agree on that.

3 minutes ago, katherine the great said:

I'm speaking as a mother and grandmother so no to that.

I don't understand.  Are you saying you would not want your son or grandson to receive due process and other legal protections if he were accused of a serious crime?

Since when are mothers and grandmothers opposed to due process?

3 minutes ago, katherine the great said:

I see no evidence that adult pedophiles are curable and until I do, I believe they should be locked up and leave them to the Lord (who is more compassionate about this issue than I am).

Locked up forever?

And should they "be locked up" without having received due process and other legal protections?

If your son was accused of sexually abusing a child, I think you would want him to receive due process.  

3 minutes ago, katherine the great said:

IMO, the well being of children should be first always.

Sounds good.  But what if the accused is innocent?  What if the accused is innocent and is your son?  Wouldn't you want him to receive legal protections, such as due process?

Or would you consent to the accusation alone being sufficient to have him imprisoned for the rest of his life?  Surely not.

3 minutes ago, katherine the great said:

I just don't buy the argument that a confession of this type of child abuse should be kept confidential

It's not really an "argument."  It's a legal doctrine.

3 minutes ago, katherine the great said:

(maybe with the exception of young offenders and if so, they need to be ordered into intense psychotherapy and lots of follow-up).

Ah.  So your moral certitude isn't absolute?

What about a sick young man who confesses to his psychiatrist that he sexually abused a child?  Do you think the psychiatrist should be obligated, under penalty of fine and imprisonment (and likely the loss of his profession and livelihood) of reporting this confession to law enforcement?

What about a confession to an attorney?  

3 minutes ago, katherine the great said:

I'm curious how many people on this board who have children would favor confidentiality if it was their own child who had been molested.

And I'm curious how many people on this board would favor confidentiality if it was their own child who was working with his psychiatrist, and his bishop, to come to grips with the abuse he has infliced on a child.  

3 minutes ago, katherine the great said:

The Bishop knows. His counselors know. The Stake President knows. Everyone on the High Council knows. There really isn't any true confidentiality in the church discipline system anyway. 

Yes, there is. 

3 minutes ago, katherine the great said:

And none of them can tell the one organization with the power to really stop that person from hurting other children? IMO, it's just wrong. 

I think the situation may be different when the abuse is ongoing.

3 minutes ago, katherine the great said:

There's no ideal solution because in an ideal world, pedophiles would not exist. Would the rate of confessions drop with mandatory reporting? Most likely. But what good is all the church discipline if, in all likelihood that person will eventually do it again?

I encourage you to give this matter some further thought and study.

3 minutes ago, katherine the great said:

Overall, I think our leaders are wonderful, salt-of-the-earth people.

I agree.

So, for that matter, are psychiatrists who work with people who have sexually abused children.  Your stance would do great damage to their efforts.

So are attorneys who work to help perpetrators of sexual abuse to receive due process, and help falsely accused persons to be exonerated (though, frankly, the charge alone can be hugely destructive to the person's life, reputation, employment, etc.).

Do you fault doctors and attorneys who keep confidential matters in confidence?  If so, why?  If not, then why can't you do the same for bishops?

3 minutes ago, katherine the great said:

From the church's side though, the one thing that I'm really having a hard time processing is this attitude I sometimes see of not reporting unless it is mandatory to report. I just don't get it.

Again, I encourage you to give this matter some further thought and study.

3 minutes ago, katherine the great said:

And would they have that same attitude if one of the victims was their own child? Even an anonymous call to social services would be something better than silence.

Would it?

Thanks,

-Smac

[smac97]

9 minutes ago, Tacenda said:

I'd report it anyway, but that's just me, because the child is in danger. I'd risk going to jail.

There is no risk of a bishop going to jail for violating the privilege.

So you'd betray a confidence?  Really?  That's the only solution?

9 minutes ago, Tacenda said:

The laws don't make sense at all to me.

Really?  Not at all?  

9 minutes ago, Tacenda said:

If someone saw a child run in front of a car, we'd save that child, to me that's no different.

It's actually quite different from most situations pertaining to a bishop receiving a confession.

9 minutes ago, Tacenda said:

Why in the world can't someone confess and pay the price for their crime?  And still go through repentance.

They can.

9 minutes ago, Tacenda said:

I understand that maybe a lot won't confess if the laws change, but the balance is in favor for reporting, IMO.

I invite you to go talk to psychiatrists and psychologists who work with people with sexual dysfunctions.  Ask them if they favor changing the laws of the land to compel them to report their patients to law enforcement.

And go talk to criminal defense attorneys and ask them the same question.

Chesterton's Fence.  Have you ever heard of it?

Thanks,

-Smac

[Tacenda]

52 minutes ago, smac97 said:

There is no risk of a bishop going to jail for violating the privilege.

So you'd betray a confidence?  Really?  That's the only solution?

Really?  Not at all?  

It's actually quite different from most situations pertaining to a bishop receiving a confession.

They can.

I invite you to go talk to psychiatrists and psychologists who work with people with sexual dysfunctions.  Ask them if they favor changing the laws of the land to compel them to report their patients to law enforcement.

And go talk to criminal defense attorneys and ask them the same question.

Chesterton's Fence.  Have you ever heard of it?

Thanks,

-Smac

I will check it out, but still favor saving a child no matter what. Don't let those that confess to whomever, feel like they can get away with not paying for their crime. We go to jail for illegal things all the time, but someone who ruins a child's life is that insignificant?

How about we just don't tell the person confessing that the law changed.

Edited January 10, 2020 by Tacenda

[The Nehor]

10 minutes ago, Tacenda said:

I will check it out, but still favor saving a child no matter what. don't let those that confess to whomever, feel like they can get away with not paying for their crime. We go to jail for illegal things all the time, but someone who ruins a child's life is that insignificant?

But does it actually save more children to make sure no one confesses?

2 hours ago, smac97 said:

Here's another thought: What about the "Fruit of the Poisonous Tree" doctrine?  Is it implicated here?  If so, did the defense attorney raise it to exclude some or all of the evidence accumulated against his client?  If not, why not?

Thanks,

-Smac

We do not know much about that but he pled guilty so unless his lawyer is incompetent they most likely knew there was enough evidence that would not be excluded that it would not make a difference, knew more about where the disclosure came from and knew it was not privileged, or he did not want to fight the charges at all.

45 minutes ago, katherine the great said:

Legally, in America, yes.  You're speaking as a lawyer so yes to that. I'm speaking as a mother and grandmother so no to that. I see no evidence that adult pedophiles are curable and until I do, I believe they should be locked up and leave them to the Lord (who is more compassionate about this issue than I am). IMO, the well being of children should be first always. I just don't buy the argument that a confession of this type of child abuse should be kept confidential (maybe with the exception of young offenders and if so, they need to be ordered into intense psychotherapy and lots of follow-up). I'm curious how many people on this board who have children would favor confidentiality if it was their own child who had been molested. The Bishop knows. His counselors know. The Stake President knows. Everyone on the High Council knows. There really isn't any true confidentiality in the church discipline system anyway. And none of them can tell the one organization with the power to really stop that person from hurting other children? IMO, it's just wrong. 

There's no ideal solution because in an ideal world, pedophiles would not exist. Would the rate of confessions drop with mandatory reporting? Most likely. But what good is all the church discipline if, in all likelihood that person will eventually do it again?

Overall, I think our leaders are wonderful, salt-of-the-earth people. From the church's side though, the one thing that I'm really having a hard time processing is this attitude I sometimes see of not reporting unless it is mandatory to report. I just don't get it. And would they have that same attitude if one of the victims was their own child? Even an anonymous call to social services would be something better than silence.

The idea that all child abuse offenders reoffend is a commonly held belief but is not true.

[Tacenda]

1 hour ago, smac97 said:

I'm glad we can agree on that.

I don't understand.  Are you saying you would not want your son or grandson to receive due process and other legal protections if he were accused of a serious crime?

Since when are mothers and grandmothers opposed to due process?

Locked up forever?

And should they "be locked up" without having received due process and other legal protections?

If your son was accused of sexually abusing a child, I think you would want him to receive due process.  

Sounds good.  But what if the accused is innocent?  What if the accused is innocent and is your son?  Wouldn't you want him to receive legal protections, such as due process?

Or would you consent to the accusation alone being sufficient to have him imprisoned for the rest of his life?  Surely not.

It's not really an "argument."  It's a legal doctrine.

Ah.  So your moral certitude isn't absolute?

What about a sick young man who confesses to his psychiatrist that he sexually abused a child?  Do you think the psychiatrist should be obligated, under penalty of fine and imprisonment (and likely the loss of his profession and livelihood) of reporting this confession to law enforcement?

What about a confession to an attorney?  

And I'm curious how many people on this board would favor confidentiality if it was their own child who was working with his psychiatrist, and his bishop, to come to grips with the abuse he has infliced on a child.  

Yes, there is. 

I think the situation may be different when the abuse is ongoing.

I encourage you to give this matter some further thought and study.

I agree.

So, for that matter, are psychiatrists who work with people who have sexually abused children.  Your stance would do great damage to their efforts.

So are attorneys who work to help perpetrators of sexual abuse to receive due process, and help falsely accused persons to be exonerated (though, frankly, the charge alone can be hugely destructive to the person's life, reputation, employment, etc.).

Do you fault doctors and attorneys who keep confidential matters in confidence?  If so, why?  If not, then why can't you do the same for bishops?

Again, I encourage you to give this matter some further thought and study.

Would it?

Thanks,

-Smac

You make some good points here, it's such a problem though, and will continue until we speak so openly that any child that is getting abused will see that they are getting abused and it's not okay. We can begin there and drill it into our children to tell an adult immediately. 

I was remembering an incident that happened to me when I was 4 or 5, my next door neighbor sat me down and then showed me his penis. He was a teenager, but I didn't know he was doing something wrong, in my innocence. But to this day I can't get that image out of my mind. I'm glad he didn't lay a hand on me though, but wonder if he did something psychologically to me that has affected me my whole life perhaps.  Funny thing is that a few years ago at a funeral for someone that lived in that neighborhood, this guy apologised to my sister and I at the luncheon at the church. He was also a peeping Tom. We were a little taken aback. But I surely wouldn't want him to spend the rest of his life for this, or many years. This is certainly a case by case situation.

I wish I knew the answers... 

ETA: Smac, even if someone reports, the person getting reported on will still have a process to make sure they're guilty right? And hopefully it's not going to be put out in the public, if that person were innocent.

Edited January 10, 2020 by Tacenda

[Bernard Gui]

1 hour ago, Tacenda said:

I'd report it anyway, but that's just me, because the child is in danger. I'd risk going to jail. The laws don't make sense at all to me. If someone saw a child run in front of a car, we'd save that child, to me that's no different. Why in the world can't someone confess and pay the price for their crime? And still go through repentance. I understand that maybe a lot won't confess if the laws change, but the balance is in favor for reporting, IMO. Too many go unreported, and hopefully the mother or parent that is married to the perp, can get some help with paying the bills etc. so that the child isn't continually abused.

I hear what you are saying, but I also think requiring confessors to turn in penitent sinners would do more harm than good in the long term. In our increasingly secular society I can see that happening..

Edited January 10, 2020 by Bernard Gui

[smac97]

18 minutes ago, Tacenda said:

You make some good points here, it's such a problem though,

Yes, it is.  But alarmism and moral panics are not the way to go.  This is why I think so little of the antics of Sam Young.

Quote

and will continue until we speak so openly that any child that is getting abused will see that they are getting abused and it's not okay. We can begin there and drill it into our children to tell an adult immediately. 

Yes, that would be progress.

But then the evidence might not be sufficient to justify charges.  And even if charges are filed, the evidence might not be sufficient to lead to a conviction.  Or the prosecutor might be incompetent, or lazy.  

And the perpetrator could be recidivist, such that he re-commits abuse after he is released.

There is no cure-all.  

Quote

I was remembering an incident that happened to me when I was 4 or 5, my next door neighbor sat me down and then showed me his penis. He was a teenager, but I didn't know he was doing something wrong, in my innocence. But to this day I can't get that image out of my mind. I'm glad he didn't lay a hand on me though, but wonder if he did something psychologically to me that has affected me my whole life perhaps.  

I am sorry that happened to you.

Quote

Funny thing is that a few years ago at a funeral for someone that lived in that neighborhood, this guy apologised to my sister and I at the luncheon at the church. He was also a peeping Tom. We were a little taken aback. But I surely wouldn't want him to spend the rest of his life for this, or many years. This is certainly a case by case situation.

I wish I knew the answers... 

ETA: Smac, even if someone reports, the person getting reported on will still have a process to make sure they're guilty right?

That's what the due process is about.  It's not perfect.

Quote

And hopefully it's not going to be put out in the public, if that person were innocent.

The charges are public as soon as they are filed by the prosecutor.  An innocent person can have his reputation severely damaged, or even destroyed, by such things.

Thanks,

-Smac

Edited January 10, 2020 by smac97

[katherine the great]

1 hour ago, smac97 said:

don't understand.  Are you saying you would not want your son or grandson to receive due process and other legal protections if he were accused of a serious crime?

Apples and oranges, The guy wasn't just accused. He confessed.

 

1 hour ago, smac97 said:

Ah.  So your moral certitude isn't absolute?

No need to be so smug. A child's brain is not done growing yet so I don't expect them to behave or think as a fully grown adult.

1 hour ago, smac97 said:

I think the situation may be different when the abuse is ongoing.

Not sure what that means.

1 hour ago, smac97 said:

Do you fault doctors and attorneys who keep confidential matters in confidence? 

Maybe. Its probably a good thing I didn't enter into those professions.

 

1 hour ago, smac97 said:

I encourage you to give this matter some further thought and study

Why? So I can have more compassion for pedophiles? No thank you. Especially not today as I watched the biography of Jeffrey Epstein last night. It sickens me that he did those things and was protected from prosecution for so long by some very powerful men. Its also sickening that the women who procured the children for him are walking around free.

 

1 hour ago, smac97 said:

And I'm curious how many people on this board would favor confidentiality if it was their own child who was working with his psychiatrist, and his bishop, to come to grips with the abuse he has infliced on a child.

If my son committed the offense as a grown man, I would support him going to prison for his offense. It would break my heart and I can't say that I would give up hope for him but I would feel that he needed to pay his debt to society and stay away from children. It would definitely make me more interested in understanding why it could happen to such a wonderful person (as all of my amazing sons are). As I said, I've never seen any evidence that pedophilia is curable. That doesn't mean it isn't but at this point, I see no evidence to support that.

 

1 hour ago, smac97 said:

Would it?

James 4:17

[provoman]

5 hours ago, smac97 said:

In some situations, yes, it can negate the confession.

Probably not in this situation.  If the wife was present, she too has a privilege against being compelled to testify (see here).

By way of analogy, if a client is talking to an attorney about a privileged matter, and another attorney at the same firm is invited in to hear it, that other attorney is not a "third party" whose presence would negate the privilege.

Thanks,

-Smac

Thank you.