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AP Story about Abuse


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11 hours ago, jkwilliams said:

Also this is extremely disturbing:

"The protocol advises those taking the calls to instruct a “priesthood leader,” which includes bishops and stake presidents, to encourage the perpetrator, the victim, or others who know of the abuse to report it. But it also says, in capital letters, that those taking the calls “should never advise a priesthood leader to report abuse. Counsel of this nature should come only from legal counsel.”

"That counsel comes from attorneys from Kirton McConkie, which represents the church."

 

Lawyers?  Do we lawyers advice to do the right thing?

Edited by sunstoned
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14 minutes ago, sunstoned said:

The Bishop should of ignored the poor advice of the hot line and done the right thing. Blind obedience never ends well.

I don't know about ignoring advice from lawyers.  If I have a lawyer on retainer and asked them what to do, I would assume that the lawyer would advise me correctly.  So, I don't think the bishop is at fault here.  The lawyers are at fault for giving incorrect advice, though we still need to find out if the advice is incorrect.

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21 minutes ago, webbles said:

I don't know about ignoring advice from lawyers.  If I have a lawyer on retainer and asked them what to do, I would assume that the lawyer would advise me correctly.  So, I don't think the bishop is at fault here.  The lawyers are at fault for giving incorrect advice, though we still need to find out if the advice is incorrect.

I'm sorry, but IMO this does not let the Bishop off the hook.  The right things were not done.  The abuse was not addressed. That is why they are facing lawsuits. 

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2 minutes ago, sunstoned said:

I'm sorry, but IMO this does not let the Bishop off the hook.  The right things were not done.  The abuse was not addressed. That is why they are facing lawsuits. 

For following the advice of a lawyer, I think it should let him off the hook.  But I think the bishop had many, many other ways he could have reported this so he shouldn't be left off the hook for those other situations.

For example, the first bishop was the family doctor.  How does a family doctor not recognize abuse of children?  He also had multiple counseling sessions with both the abuser and the wife.  Receiving information or anything from the wife isn't privileged information.  He also asked the abuser to leave the home of the family or else said he would report it (this is from one of the interviews in one of the lawsuits).  The abuser left the home for a bit but then came back.  The bishop didn't report it.

So, I do think the bishop is in the wrong for not reporting the abuse, but not because of following the advice of the lawyer.

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5 hours ago, Calm said:

Also the mom was not easy to deal with, not communicative in general and would shut down about what was going on if asked by Warr, the border patrol officer. Iirc, her brother was claiming she was autistic at her trial or sentencing hearing, but I never read it that was valid. She definitely was emotionally dysfunctional, whether because of she was also abused (she made those claims after she was arrested or was looked at as an accomplice iirc) or having development issues (her brother claimed she always had problems with social interaction, etc even before marriage) may be unknown still.  Most likely a combo I bet.  She sounded emotionally numb or even dead from the way she was described and mostly concerned about herself, unable to have sympathy towards her children.  After two years of parenting classes while in jail, they asked her what she would do to discipline her kids and she said something like forcefeed them vinegar…been too long to remember details, but it was completely wrong in so many ways. The mom was telling the daughter she was saying nonsense when she said she was raped even after they had the evidence.  There was no compassion for what her kids went through. They were just a bother. Of course, this is what I got from reading the transcripts, so a very slanted view. It may be quite off. 

Recommendation was not to allow any contact with her kids till they were adults and could decide for themselves.  And the kids were so screwed up the recommendation was to split them up because they were abusive to each other or at least the kids would not be able to feel safe in each other’s presence.

I realize this would open a can of worms, but I wish people had to pass a test if minimal emotional maturity and emotional intelligence and parental skills before being able to have children. There are some people who should not be allowed to have children. Just not sure how one could set this up in an ethical and intelligence and compassionate way. 

How would you prevent them from having children?

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29 minutes ago, Bernard Gui said:

How would you prevent them from having children?

Why it is a wish and nothing less.  Sterilization would not be moral.

Edited by Calm
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1 hour ago, webbles said:

For following the advice of a lawyer, I think it should let him off the hook.  But I think the bishop had many, many other ways he could have reported this so he shouldn't be left off the hook for those other situations.

For example, the first bishop was the family doctor.  How does a family doctor not recognize abuse of children?  He also had multiple counseling sessions with both the abuser and the wife.  Receiving information or anything from the wife isn't privileged information.  He also asked the abuser to leave the home of the family or else said he would report it (this is from one of the interviews in one of the lawsuits).  The abuser left the home for a bit but then came back.  The bishop didn't report it.

So, I do think the bishop is in the wrong for not reporting the abuse, but not because of following the advice of the lawyer.

Doctors are mandated reporters as are teachers. As a bishop, I learned of an accusation of child abuse through confession, and the child was a student in one of my classes. When I sought legal advice, I was asked how I had learned of the abuse: if it were in my role as the teacher it was mandatory to report it; however, if it was as the bishop, it was privileged information.

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6 hours ago, Bernard Gui said:

Doctors are mandated reporters as are teachers. As a bishop, I learned of an accusation of child abuse through confession, and the child was a student in one of my classes. When I sought legal advice, I was asked how I had learned of the abuse: if it were in my role as the teacher it was mandatory to report it; however, if it was as the bishop, it was privileged information.

Privileged is a terrible word. Something I would never want to be. And a church should never be privileged over being loving and living the commandments of God. 

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46 minutes ago, Tacenda said:

Privileged is a terrible word. Something I would never want to be. And a church should never be privileged over being loving and living the commandments of God. 

It’s not that simple. The privilege belongs to the offender not to have the confessed sins revealed, not the bishop or church. The one who confesses generally has an expectation of confidentiality depending, of course, on the laws of the state. Accused persons have the same expectation from their lawyers. 

Edited by Bernard Gui
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8 hours ago, webbles said:

For example, the first bishop was the family doctor.  How does a family doctor not recognize abuse of children?
But I think the bishop had many, many other ways he could have reported this so he shouldn't be left off the hook for those other situations.

If the bishop/doctor first learned of the abuse from confession, would his position as family doctor make reporting mandatory?
 

How would the bishop get around confessional privilege?

Edited by Bernard Gui
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37 minutes ago, Tacenda said:

Privileged is a terrible word. Something I would never want to be. And a church should never be privileged over being loving and living the commandments of God. 

It is a legal term.  See here and here and here.  The various privileges that exist in the law protecting information from disclosure are intended to foster free and open communication (perhaps, in specific cases, with certain exceptions, as we have been discussing here) between a person who confides sensitive information to another, such as a therapist, a doctor, an attorney, or a member of the clergy. 

However you may feel about the priest-penitent privilege in this instance, would you be as inclined to be as candid as necessary with your therapist, with your doctor, or with your lawyer if those privileges didn't exist and if these parties freely could disclose sensitive information that you disclosed to them?  I submit that you would not.  And I submit that if you did not feel that, safely, you could disclose sensitive information to them, their ability to help you would be hampered severely.

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7 hours ago, Bernard Gui said:

Doctors are mandated reporters as are teachers. As a bishop, I learned of an accusation of child abuse through confession, and the child was a student in one of my classes. When I sought legal advice, I was asked how I had learned of the abuse: if it were in my role as the teacher it was mandatory to report it; however, if it was as the bishop, it was privileged information.

Did/Would you have sought opportunities to learn of the abuse while working in the capacity of an instructor?

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9 hours ago, webbles said:

I don't know about ignoring advice from lawyers.  If I have a lawyer on retainer and asked them what to do, I would assume that the lawyer would advise me correctly.  So, I don't think the bishop is at fault here.  The lawyers are at fault for giving incorrect advice, though we still need to find out if the advice is incorrect.

I am not sure courts are the final arbiters of this question. I expect the church will win the legal case if it comes to that.

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10 hours ago, Vanguard said:

Did/Would you have sought opportunities to learn of the abuse while working in the capacity of an instructor?

In my previous state wher I taught school a teacher is required under penalty of law to report any suspicion of abuse. Confessors were not. In my case other than asking the child directly I would have had little opportunity.

Edited by Bernard Gui
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1 hour ago, Bernard Gui said:

It’s not that simple. The privilege belongs to the offender not to have the confessed sins revealed, not the bishop or church. The one who confesses generally has an expectation of confidentiality depending, of course, on the laws of the state. Accused persons have the same expectation from their lawyers. 

Is this true though? If I as an elders quorum president confess to ongoing adultery to my bishop, can he pass the information on the the SP to convene a membership council? If confidentiality was a principle, the answer is surely not without my permission. No? But church policy says a council is mandatory. No?

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1 hour ago, Bernard Gui said:

If the bishop/doctor first learned of the abuse from confession, would his position as family doctor make reporting mandatory?
 

How would the bishop get around confessional privilege?

Here is the statute:

Quote

13-3620. Duty to report abuse, physical injury, neglect and denial or deprivation of medical or surgical care or nourishment of minors; medical records; exception; violation; classification; definitions

A. Any person who reasonably believes that a minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect that appears to have been inflicted on the minor by other than accidental means or that is not explained by the available medical history as being accidental in nature or who reasonably believes there has been a denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of an infant who is protected under section 36-2281 shall immediately report or cause reports to be made of this information to a peace officer, to the department of child safety or to a tribal law enforcement or social services agency for any Indian minor who resides on an Indian reservation, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only. A member of the clergy, a Christian Science practitioner or a priest who has received a confidential communication or a confession in that person's role as a member of the clergy, as a Christian Science practitioner or as a priest in the course of the discipline enjoined by the church to which the member of the clergy, the Christian Science practitioner or the priest belongs may withhold reporting of the communication or confession if the member of the clergy, the Christian Science practitioner or the priest determines that it is reasonable and necessary within the concepts of the religion.  This exemption applies only to the communication or confession and not to personal observations the member of the clergy, the Christian Science practitioner or the priest may otherwise make of the minor. 

smac97 interpreted it this way (on his thread):

Quote

The decision to not report the abuse was . . . discretionary.  The bishop and the Church had the option of reporting ("may withold").  

The statute also does not exempt clergy from reporting requirements if the clergy "reasonably believes that a minor is or has been the victim of {abuse}" based on "personal observations ... of the minor."

In other words if the bishop (there were two involved) had a basis other than the father's confession to "reasonably believe" that abuse had happened or was happening, then he had the obligation to report to law enforcement ("shall immediately report or cause reports to be made of this information to a peace officer...").  Per Amulek, the statute has been structured this way since 2003.

I am at a loss to understand why the bishops did not report, and why the helpline did not instruct them to report.  In fact, per one of the bishops he was instructed by the helpline to not report... 

...The "church officials" referenced here is probably a reference to attorneys at the helpline.  And they were partially correct in that the bishops were "excused from reporting."  The bishops were not legally obligated to report the abuse, but only as to confessions from the father.  

As noted above, if the bishops had a "reasonable belief" of abuse based on "personal observations ... of the minor," then the obligation to report kicked in.  It is difficult to comprehend how the bishops could not, for years, have formulated a "reasonable belief" about the possibility of abuse independent of the father's confessions.  A belief based on "observations" of the child.

Moreover, I am at a loss as to why the helpline did not instruct them to report the ongoing abuse based on the father's confession, as there was no legal constraint against that.  I appreciate that the priest/penitent privilege is very important, as is the doctor/patient privilege (the AZ statute likewise includes an identical "may withold" provision for physicians, psychologists and behavioral health professionals).  But where the law allows (as in does not prohibit) a clergy or doctor from reporting ongoing abuse, I think the welfare of the child supersedes all other considerations.  This comports with the Church's CHI in place at the time. 

 

Edited by pogi
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1 hour ago, Bernard Gui said:

If the bishop/doctor first learned of the abuse from confession, would his position as family doctor make reporting mandatory?
 

How would the bishop get around confessional privilege?

From the AZ law:

Quote

This exemption applies only to the communication or confession and not to personal observations the member of the clergy, the Christian Science practitioner or the priest may otherwise make of the minor.

So, the "may" report is only applicable when the bishop learns about the abuse from the abuser.  But as a doctor, I would expect that he would have "personal observations" of the minor that would indicate abuse.  That information requires mandatory reporting.  He can't report that the abuser told him of abuse, but he must report that he examined a minor and observed abuse related details.

If your experience as a teacher was not in AZ, then it is under a different law which might not have this specific section that AZ does.

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18 minutes ago, SeekingUnderstanding said:

Is this true though? If I as an elders quorum president confess to ongoing adultery to my bishop, can he pass the information on the the SP to convene a membership council? If confidentiality was a principle, the answer is surely not without my permission. No? But church policy says a council is mandatory. No?

You can and it would still be penitent privileged if it came to it. The same way the Bishop can tell his counselors what is going on to prepare for a membership council.

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16 minutes ago, SeekingUnderstanding said:

Is this true though? If I as an elders quorum president confess to ongoing adultery to my bishop, can he pass the information on the the SP to convene a membership council? If confidentiality was a principle, the answer is surely not without my permission. No? But church policy says a council is mandatory. No?

The bishop sharing with the stake president would be within the privilege because both are clergy.  Similar to a therapist sharing with another therapist or a lawyer sharing with another lawyer.  I'm not so sure, though, about the rest of the members in the membership council.  Can you perform a membership council without letting the rest of the council know the issue?  That's one thing about this specific case.  The abuser was excommunicated.  So why didn't anyone related to that say anything?  The lawsuit should be targeting them as well.

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1 minute ago, The Nehor said:

You can and it would still be penitent privileged if it came to it. The same way the Bishop can tell his counselors what is going on to prepare for a membership council.

It’s privileged but in no way confidential. Like if the same thing happened in the Catholic Church, the priest would be excommunicated if I understand correctly. So confidentiality isn’t really a thing for Latter-day Saints as I understand the word. 

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3 minutes ago, webbles said:

The bishop sharing with the stake president would be within the privilege because both are clergy.  Similar to a therapist sharing with another therapist or a lawyer sharing with another lawyer.  I'm not so sure, though, about the rest of the members in the membership council.  Can you perform a membership council without letting the rest of the council know the issue?  That's one thing about this specific case.  The abuser was excommunicated.  So why didn't anyone related to that say anything?  The lawsuit should be targeting them as well.

Right it’s privileged legally, but if it can be shared without my consent it’s in no way confidential. In your example, my lawyer can’t discuss privileged information about  my case without my consent. That’s not the case in the church. Confidentiality doesn’t exist. 

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4 minutes ago, SeekingUnderstanding said:

It’s privileged but in no way confidential. Like if the same thing happened in the Catholic Church, the priest would be excommunicated if I understand correctly. So confidentiality isn’t really a thing for Latter-day Saints as I understand the word. 

It is confidential. The counselors are not supposed to share what goes on in a membership council and not supposed to talk about it with anyone except those involved (Bishop, other counselor, clerk recorder) including their spouse.

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As we're talking about lawyers and what's required and what happened in the past, I feel it's important to remember what's currently happening:

https://www.churchofjesuschrist.org/callings/church-safety-and-health/protecting-children-and-youth?lang=eng

Quote

Key Principles and Policies Covered in the Training

  • The Lord expects us to do all we can to prevent abuse and to protect and help those who have been victims of abuse.
  • The Church does not tolerate abuse in any form. Abuse violates the laws of God and may also be a violation of the laws of society.
Quote

When inappropriate behavior or abuse happens, you should act promptly to protect the child or youth.

U.S. and Canada

If you learn of abuse, you should immediately contact legal authorities. You should also counsel with your bishop or stake president, who will call the abuse help line for guidance in helping victims and meeting reporting requirements.

 

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