What a Nightmare!

[The Nehor]

2 hours ago, alter idem said:

Whether or not it's admissable in court shouldn't really matter as far as notifying authorities of a crime. I think under Arizona law, bishops had the option to report the alleged sexual abuse which I assume means they would not be subject to liability. 

I suspect that is a very false assumption. You also hit "fruit of the poisonous tree" problems.

[Calm]

So I think I am going to drop this discussion for now. It being tied to this specific case which is so hopeless**** is giving my day an undercurrent of frustrated anger (not at people here, at the terribleness of some people’s lives and how bad we are at helping because we can’t see the future and have to guess).  I have, I think, have expressed all my concerns at least once.
 

Biggest thing is I don’t believe we know enough about the bishops’ choices and reasoning to draw any sort of judgment. The only info we have was given in the context of trying to show the mom was responsible for the abuse, should have reported it.
 

If there were any extenuating reasons the bishops didn't report that they might have shared (though they might not have as part of the confession sessions), these would likely apply to the mother as well and so likely not mentioned by the agent on his own and no real reason for the attorney to dwell on it. It doesn’t sound like her attorney talked to the bishops, just the border patrol friend, who made a strong witness for her so perhaps he didn’t see the need and was pressed for time (maybe it was just the type of hearing, but the attorney didn’t insist on a thorough diagnosis of her possible spectrum disorder; I would have expected a lot more discussion and testimony by experts on her mental and emotional state)....

Ach, getting into dissecting it again.  Just not enough info to resolve anything.

****Now I have had more time to think about it and get past the emotional satisfaction of thinking of their caregivers being able to tell her kids someone was punished for what was done to you.....pretty sure jail isn’t going to help the mother and will just make her problems worse, what if she ends up having more kids, etc; also not sure using her imprisonment to teach the kids there are serious consequences to her not protecting them is wise in the long term given they will likely have personal issues in dealing with others and they might translate her experience into their own and so try to hide their destructive behaviours rather than get help.

Edited April 29, 2020 by Calm

[Amulek]

3 hours ago, rongo said:

I never expected to get moral or ethical advice from the hotline; it's just off-putting to only have a legal mantra repeated when you ask, rhetorically, in exasperation, what about the moral and ethical obligations. 

Lawyers have to deal with liability issues too. Their job is to advise you about that law; period. 

They aren't going to let themselves get pulled into a discussion about what is "right" or what you "ought" to do, because the last thing they want is to have to deal with a malpractice suit themselves based on the advice they gave you - advice which was beyond the scope of what they needed to provide. 

 

[Calm]

1 hour ago, alter idem said:

The threat of killing his family, or killing others is in itself a crime and if he was making threats at work, he should have been reported for that. 

He made threats enough to be fired (terroristic threats ) and then was rehired later on. There is therefore imo good reason to believe he would have gotten away with it even if reported.  There are lots of things that should be done in the world that can have bad unintended consequences. Sometimes we should ignore the risks and act anyway. Other times perhaps not. 
 

I can see where him being a law enforcement or a similar field (I assume Border Patrol are considered LE but may not be) added an extra twist given the reputation (hopefully false but still prevalent from what I see) that LE cover for fellow LE. 
 

So much for dropping the conversation. Wish there was a way to put the thread on ignore.  Shorter post at least. 

Edited April 29, 2020 by Calm

[rongo]

13 hours ago, The Nehor said:

Yes, only the current bishop of the ward can access those notes. It used to be you would request a copy of the proceedings be mailed to you from Salt Lake before it went digital. The record of the council is usually pretty general and are instructed to do so. It is nowhere near a court reporter or something of that nature. It should be specific enough to convey the seriousness of the sin though.

When ordering disciplinary council minutes and items, they come to the stake president and he gives them to the bishop (or not --- I suspect that's why they are sent to a "gatekeeper" first). They used to be potentially quite extensive. When I first served (2007-2012), you mailed in the forms to Salt Lake and they could be quite a packet. I remember reading one from BYU that read like a Supreme Court transcript, with give-and-take of questions, answers, and testimony. That high council/stake presidency was a Who's Who (Richard L. Anderson, Eugene England, etc.). The level of detail was very helpful, and that's how we did ours. My clerk filled a legal pad with detailed transcript notes, which I then transcribed. They were detailed as far as what was said and by whom, and gave a good sense of the flow of discussion and thought (especially as far as change or evolution of thought throughout the deliberations, which happens). These, along with copies of the delivered letters and witnesses (or certified mail signatures), were part of the paperwork.

When I served a second time from 2015-2018, everything had been changed. It was all online, there was a ridiculously small character limit for the bishop (which signals that detail isn't wanted any more), and proof of hand-delivered and witnessed letters is no longer needed. Information on ordered minutes is now not very detailed at all (or helpful, in my opinion). 

The evolution of disciplinary councils has been interesting. No more high council at the stake level (well, "usually." The stake president can include some or all of them if he wants to, but the new handbook unspokenly encourages it to be just the stake presidency). 

I think that information on past action for leaders is likely to just tell him now "membership restriction/withdrawal" for "adultery" or "child abuse," but with little context or background. 

[Anijen]

People are confusing the "fruit of the poisonous tree" doctrine. For evidence to be tainted, including testimonial evidence, it needs to be connected to the illegal activity.

It is not criminal for a bishop to call the police and report what he heard in a confession. Although it may be in conflict with civil law depending on jurisdiction. For example, in a trial, a court cannot force a bishop to disclose what he hears in confession, but if the bishop voluntarily testifies to what the confessor told him then depending on the jurisdiction the bishop can be sued civilly but not charged criminally. I am sure the defendant's lawyer would also object on hearsay and privilege grounds which could or could not be sustained by the judge.

We should remember that the fruit of the poisonous tree doctrine is an exclusionary rule, which means a rule that tries to exclude evidence from being admissible. However, even exclusionary rules have exceptions. Evidence from tainted sources still may be admissible if; (1) it was from a source independent of the illegal activity (such as a confession to a bishop), (2) the discovery would have been inevitable (meaning it would have become public anyway by another way), or (3) if there is attenuation between the illegal activity and the discovery of the evidence. In exception number 1,  (it was from a source independent of the illegal activity, such as a confession to a bishop. This is an exception to the fruit of the poisonous tree and for this exception alone would be admissible. However, to also be admissible it would still need to pass the hearsay rule and privilege rule.

Hearsay rule; is an out of court statement offered to prove the truth of the matter asserted and is inadmissible (barring an exception).

Priest/Penitent Privilege rule; at trial in which the contents of a confession are sought from a clergy member may not be testified about in court (barring an exception).

So yes, if a bishop reports a confession and that report becomes admissible testimony then it can have an affect on the outcome of the trial. This is good for the defendant bad for the victim. It is not a win/win outcome. What happens if that confession came from a mentally disturbed man who confesses to a bishop 50 years after a dream he had, but had not actually committed the crime? What if a victim can not remember who the person was and thinks it must have been the defendant because he confessed to it although it was from a dream he had and at that time the defendant couldn't tell the difference from reality and hallucination?

I know these are scenarios that are way out there, but it has happened in the past. This is why, in my opinion, bishops should keep confessions of past crimes confidential. Of course, if the bishop hears a confession of a past crime and a threat of a future crime then absolutely yes report it!

 

 

Edited April 29, 2020 by Anijen

[Tacenda]

14 minutes ago, Anijen said:

People are confusing the "fruit of the poisonous tree" doctrine. For evidence to be tainted, including testimonial evidence, it needs to be connected to the illegal activity.

It is not criminal for a bishop to call the police and report what he heard in a confession. Although it may be in conflict with civil law depending on jurisdiction. For example, in a trial, a court cannot force a bishop to disclose what he hears in confession, but if the bishop voluntarily testifies to what the confessor told him then depending on the jurisdiction the bishop can be sued civilly but not charged criminally. I am sure the defendant's lawyer would also object on hearsay and privilege grounds which could or could not be sustained by the judge.

We should remember that the fruit of the poisonous tree doctrine is an exclusionary rule, which means a rule that tries to exclude evidence from being admissible. However, even exclusionary rules have exceptions. Evidence from tainted sources still may be admissible if; (1) it was from a source independent of the illegal activity (such as a confession to a bishop), (2) the discovery would have been inevitable (meaning it would have become public anyway by another way), or (3) if there is attenuation between the illegal activity and the discovery of the evidence. In exception number 1,  (it was from a source independent of the illegal activity, such as a confession to a bishop. This is an exception to the fruit of the poisonous tree and for this exception alone would be admissible. However, to also be admissible it would still need to pass the hearsay rule and privilege rule.

Hearsay rule; is an out of court statement offered to prove the truth of the matter asserted and is inadmissible (barring an exception).

Priest/Penitent Privilege rule; at trial in which the contents of a confession are sought from a clergy member may not be testified about in court (barring an exception).

So yes, if a bishop reports a confession and that report becomes admissible testimony then it can have an affect on the outcome of the trial. This is good for the defendant bad for the victim. It is not a win/win outcome. What happens if that confession came from a mentally disturbed man who confesses to a bishop 50 years after a dream he had, but had not actually committed the crime? What if a victim can not remember who the person was and thinks it must have been the defendant because he confessed to it although it was from a dream he had and at that time the defendant couldn't tell the difference from reality and hallucination?

I know these are scenarios that are way out there, but it has happened in the past. This is why, in my opinion, bishops should keep confessions of past crimes confidential. Of course, if the bishop hears a confession of a past crime and a threat of a future crime then absolutely yes report it!

 

 

Yes to the bold!!

[The Nehor]

4 hours ago, Anijen said:

People are confusing the "fruit of the poisonous tree" doctrine. For evidence to be tainted, including testimonial evidence, it needs to be connected to the illegal activity.

It is not criminal for a bishop to call the police and report what he heard in a confession. Although it may be in conflict with civil law depending on jurisdiction. For example, in a trial, a court cannot force a bishop to disclose what he hears in confession, but if the bishop voluntarily testifies to what the confessor told him then depending on the jurisdiction the bishop can be sued civilly but not charged criminally. I am sure the defendant's lawyer would also object on hearsay and privilege grounds which could or could not be sustained by the judge.

We should remember that the fruit of the poisonous tree doctrine is an exclusionary rule, which means a rule that tries to exclude evidence from being admissible. However, even exclusionary rules have exceptions. Evidence from tainted sources still may be admissible if; (1) it was from a source independent of the illegal activity (such as a confession to a bishop), (2) the discovery would have been inevitable (meaning it would have become public anyway by another way), or (3) if there is attenuation between the illegal activity and the discovery of the evidence. In exception number 1,  (it was from a source independent of the illegal activity, such as a confession to a bishop. This is an exception to the fruit of the poisonous tree and for this exception alone would be admissible. However, to also be admissible it would still need to pass the hearsay rule and privilege rule.

Hearsay rule; is an out of court statement offered to prove the truth of the matter asserted and is inadmissible (barring an exception).

Priest/Penitent Privilege rule; at trial in which the contents of a confession are sought from a clergy member may not be testified about in court (barring an exception).

So yes, if a bishop reports a confession and that report becomes admissible testimony then it can have an affect on the outcome of the trial. This is good for the defendant bad for the victim. It is not a win/win outcome. What happens if that confession came from a mentally disturbed man who confesses to a bishop 50 years after a dream he had, but had not actually committed the crime? What if a victim can not remember who the person was and thinks it must have been the defendant because he confessed to it although it was from a dream he had and at that time the defendant couldn't tell the difference from reality and hallucination?

I know these are scenarios that are way out there, but it has happened in the past. This is why, in my opinion, bishops should keep confessions of past crimes confidential. Of course, if the bishop hears a confession of a past crime and a threat of a future crime then absolutely yes report it!

At which point the privilege itself dies. At least it dies for our church. A few cases and then there is no reasonable expectation of confidentiality.

[Tacenda]

19 minutes ago, The Nehor said:

At which point the privilege itself dies. At least it dies for our church. A few cases and then there is no reasonable expectation of confidentiality.

One way to look at it is to treat it like "the ox in the mire" reasoning. 

[smac97]

20 hours ago, Calm said:

So I think I am going to drop this discussion for now. It being tied to this specific case which is so hopeless**** is giving my day an undercurrent of frustrated anger (not at people here, at the terribleness of some people’s lives and how bad we are at helping because we can’t see the future and have to guess).  I have, I think, have expressed all my concerns at least once.

Biggest thing is I don’t believe we know enough about the bishops’ choices and reasoning to draw any sort of judgment. The only info we have was given in the context of trying to show the mom was responsible for the abuse, should have reported it.

If this case was indicative a widespread, systemic, ongoing, unaddressed, serious problem in the Church vis-à-vis how the Church handles allegations of abuse, I could see the need to dwell on it.

But it's not, so I won't.

This case is mostly noteworthy because of its horribleness and it being an outlier.  Bishops are instrumental in detecting and stopping abuse all the time, and also help in the aftermath as well.

20 hours ago, Calm said:

If there were any extenuating reasons the bishops didn't report that they might have shared (though they might not have as part of the confession sessions), these would likely apply to the mother as well and so likely not mentioned by the agent on his own and no real reason for the attorney to dwell on it. It doesn’t sound like her attorney talked to the bishops, just the border patrol friend, who made a strong witness for her so perhaps he didn’t see the need and was pressed for time (maybe it was just the type of hearing, but the attorney didn’t insist on a thorough diagnosis of her possible spectrum disorder; I would have expected a lot more discussion and testimony by experts on her mental and emotional state)....

Ach, getting into dissecting it again.  Just not enough info to resolve anything.

****Now I have had more time to think about it and get past the emotional satisfaction of thinking of their caregivers being able to tell her kids someone was punished for what was done to you.....pretty sure jail isn’t going to help the mother and will just make her problems worse, what if she ends up having more kids, etc; also not sure using her imprisonment to teach the kids there are serious consequences to her not protecting them is wise in the long term given they will likely have personal issues in dealing with others and they might translate her experience into their own and so try to hide their destructive behaviours rather than get help.

You're fixating, Calm.  Time to walk away, at least for a time?  The weather is beautiful today...

Thanks,

-Smac

[Anijen]

4 hours ago, The Nehor said:

At which point the privilege itself dies. At least it dies for our church. A few cases and then there is no reasonable expectation of confidentiality.

A few ways a privilege can be extinguished:

• If the holder of the privilege allows and consents to the clergy, psychiatrist, or his attorney for his confession to be released.
• If the confession was made in public with many ears to hear, then it is likely to be received as a confession, but by confessing in such a public manner then there is likely no privilege.
• If the holder of the privilege himself blabs to other people his sins, then by the confessor's conduct the privilege is likely extinguished as well.
• It goes to court, a judge rules it admissible, (although this will probably come up in his appeal). However, if good cause is shown the loss of privilege will typically be upheld.
• In cases where the confessor's lawyer or his doctor is sued (e.g. for malpractice) by the confessor, then the privilege is likely extinguished.
• Some privilege such as spousal privilege may be extinguished after divorce.

Yes, I believe you to be correct that after a few more cases then there will be no reasonable expectation of confidentiality, it least in these type of cases. 

Again, if the confessor makes threats of future harm then in most jurisdictions there is an optional or mandatory reporting law.

[The Nehor]

23 hours ago, Tacenda said:

One way to look at it is to treat it like "the ox in the mire" reasoning. 

Except now you will not be able to rescue anything in the mire going forward.

[The Nehor]

19 hours ago, Anijen said:

A few ways a privilege can be extinguished:

• If the holder of the privilege allows and consents to the clergy, psychiatrist, or his attorney for his confession to be released.
• If the confession was made in public with many ears to hear, then it is likely to be received as a confession, but by confessing in such a public manner then there is likely no privilege.
• If the holder of the privilege himself blabs to other people his sins, then by the confessor's conduct the privilege is likely extinguished as well.
• It goes to court, a judge rules it admissible, (although this will probably come up in his appeal). However, if good cause is shown the loss of privilege will typically be upheld.
• In cases where the confessor's lawyer or his doctor is sued (e.g. for malpractice) by the confessor, then the privilege is likely extinguished.
• Some privilege such as spousal privilege may be extinguished after divorce.

Yes, I believe you to be correct that after a few more cases then there will be no reasonable expectation of confidentiality, it least in these type of cases. 

Again, if the confessor makes threats of future harm then in most jurisdictions there is an optional or mandatory reporting law.

I meant it dies because the LDS faith basically admits it has no reasonable expectation of confidentiality because Bishops break it when they choose to and it would not be enforceable in court if that expectation is gone.

[Tacenda]

1 hour ago, The Nehor said:

Except now you will not be able to rescue anything in the mire going forward.

Not so IMO.

[Calm]

2 hours ago, Tacenda said:

Not so IMO.

If fewer think about confessing due to fear of being turned in  or otherwise any problem they might have (even a non criminal one) could be made public due to assumption of no confidentiality, not only will there be less confessions being made, but less will come to the bishop to ask for help with anything that is embarrassing...some of which may grow if let untreated into abuse, such as major fighting between couples or feelings of attractions to those one shouldn’t be attracted to.  There will be less getting professional help as well as referrals to counseling will drop since less requests out of fear problems will become known to others. 
 

Fear does stop people doing the sensible thing, as evidenced by hospitals seeing a significant drop in cardiac arrest patients since covid popped up and patients feared exposure. Wonder how many missed out of needed treatment and died or damaged themselves that could have been helped. 

Edited April 30, 2020 by Calm

[Teancum]

On 4/27/2020 at 7:24 PM, Robert F. Smith said:

I don't think so.  Somewhere, somehow, one must come clean.

Let God take the confession.