Article Re: Clergy/Penitent Privilege

smac97 · March 2, 2023

Push to require clergy to report abuse stalls in Mormon Utah

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SALT LAKE CITY (AP) — Lindsey Lundholm looked out over hundreds of people at the Utah State Capitol last year and felt a deep sense of healing. Abuse survivors, religious leaders and major party politicians were all gathered to rally for an end to a legal loophole that exempts religious clergy from being required to report child sexual abuse once it comes to their attention.

This is sort of weird (and, I think, slanted) phrasing. A "loophole" is typically "a small mistake {in the text of a law} which allows people to do something that would otherwise be illegal." Per Wikipedia:

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A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system.
...
Loopholes are distinct from lacunae, although the two terms are often used interchangeably. In a loophole, a law addressing a certain issue exists, but can be legally circumvented due to a technical defect in the law, such as a situation where the details are under-specified. A lacuna, on the other hand, is a situation in which no law exists in the first place to address that particular issue.

The clergy-penitent privilege is not a whoopsy-daisy. It's not an error or oversight. It is, instead, a law (sometimes also a rule of evidence and/or procedure) which has been specifically and intentionally created, with the First Amendment being the jurisprudential basis. All 50 states, plus DC and the federal government, have enacted forms of this privilege "providing that at least some communications between clergyman and parishioners are privileged." More:

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The privilege is defined in over 50 separate statutes and may therefore vary in important ways:

Who qualifies as a member of the clergy

What communications are covered by the privilege

Who holds the privilege^[3]

So it is substantially inaccurate to characterize the privilege as a "loophole." There is a world of difference between A) "closing a loophole" (that is, correcting an unintentional drafting error in a statute) and B) abolishing or limiting an intentionally-created point of law.

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Lundholm, one of the rally’s organizers, recalled telling the crowd how, growing up as a member of The Church of Jesus Christ of Latter-day Saints in Idaho, she told her bishop about her painful abuse only to see it go unreported.

Hmm. A few thoughts:

1. Lagging/Outdated Effort to Respond: The above seems to be a fairly common element of news items on the legal issues pertaining to child abuse. That is, there is a call for action, or a complaint aired, about the Church now that originates from events that occurred years ago. This is analogous to someone in 2023 calling on cell phone manufacturers to address problems in using flip phones to send texts. Nobody is disputing that sending texts using a numbered keypad on a flip phone is/was annoying, but by 2023 the situation had substantially changed and improved, with most people using smart phones with vastly improved texting features. Which brings me to the next point...

2. Failing to Account for and Acknowledge Improvements: The above article is specifically framed as being about the Church ("stalls in Mormon Utah"). Calls for action, such as those in the article, sometimes (usually?) overlook / ignore / gloss over the various efforts the Church has made in the intervening years to improve the training and resources for bishops to use in handling allegations of abuse.

3. Benefits of the Clergy-Penitent Privilege: Meanwhile, there is essentially never an acknowledgment of the various and many times the bishops of the Church have been instrumental in detecting and facilitating the stopping of abuse.

4. Drawbacks in Eliminating the Clergy-Penitent Privilege: Nor is there much, if any, public acknowledgment of the very real and foreseeable drawbacks to eliminating the privilege. As summarized by our friend, Chat GPT:

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The clergy-penitent privilege is a legal protection that allows individuals to maintain the confidentiality of communications made to clergy members in their role as spiritual advisors. Eliminating this privilege could have several adverse consequences, including:

Infringement of Religious Freedom: The clergy-penitent privilege is a fundamental aspect of religious freedom, as it allows individuals to seek guidance and counsel from their religious leaders without fear of disclosure. Eliminating this privilege may infringe on individuals' religious freedom and hinder their ability to freely practice their faith.

Loss of Trust in Religious Institutions: Eliminating the clergy-penitent privilege could lead to a loss of trust in religious institutions. If individuals are no longer confident that their conversations with religious leaders will remain confidential, they may be less likely to seek guidance or disclose sensitive information, which could ultimately harm their mental and emotional well-being.

Negative Impact on Mental Health: Confidential conversations with religious leaders can be an essential source of support and comfort for individuals dealing with personal and emotional issues. Eliminating the clergy-penitent privilege may discourage individuals from seeking such support and could have a negative impact on their mental health.

Legal Consequences for Clergy Members: Eliminating the clergy-penitent privilege could lead to legal consequences for clergy members who disclose confidential information. This could result in criminal charges or civil lawsuits against the clergy member, which could ultimately harm their reputation and financial well-being.

Compromised Pastoral Care: Eliminating the clergy-penitent privilege may cause clergy members to be less effective in their pastoral care roles. If individuals are hesitant to discuss sensitive issues with their religious leaders, the clergy members may not have all the information necessary to provide adequate support and guidance.

Overall, eliminating the clergy-penitent privilege could have significant adverse consequences on individuals' mental health, religious freedom, and trust in religious institutions.

5. No Evidence of Benefits in Expanding Mandatory Reporting Laws: The above story is framed as an attempt to "close a loophole," when it may be more accurately stated as an attempt to expand the parameters of "mandatory reporting" laws. The problem, though, is that there is apparently little or no evidence to support the expansion of such laws. That is, no evidence that doing so helps in the detection and cessation of child abuse. I came across this article last year and found it very informative and persuasive: Unintended Consequences of Expanded Mandatory Reporting Laws

Some excerpts:

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In particular, Pennsylvania expanded its definitions of mandatory reporters, requiring child abuse awareness training for any licensed health care professional in the state and significantly expanding mandatory lay reporters to include essentially any individual in contact with children, rather than specifically those in contact with children by virtue of their profession. In Philadelphia, these new reporting requirements have flooded the reporting hotline, contributing to excessive waiting times, unanswered calls, spurious calls, and unnecessary reports, leading to the inability to pursue many of these reports.
...
There is no indication that the increase in reporting has improved the safety of Philadelphia’s children, and there is reason to believe it may detract.
...
Mandatory reporting of suspected child abuse and neglect has a history of over 5 decades in the United States. Yet this policy, like many other approaches in the field of child abuse policy, is lacking in evidence.
...
Over the past decades, most states have considerably expanded their mandatory reporting laws in both domains, although none have proven the effectiveness of this approach.
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The majority of North American child welfare experts believe that mandatory reporting laws are an important measure in identifying child maltreatment, and dissent is rare. Indeed, the policy has broad ethical and moral appeal. Yet no clear endpoints have been recognized as useful indicators of the efficacy of this approach, and no data exist to demonstrate that incremental increases in reporting have contributed to child safety.
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Rates of the substantiation of reports may indicate the successful identification of abused or at-risk children, yet increased mandatory reporting requirements have not been consistently proven to correlate with higher rates of substantiated cases.
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Despite a dearth of data, at any juncture at which child abuse policy is debated, the result is nearly always additional expansion of the requirements for mandatory reporting. This expansion seems to make for good politics, because child abuse legislation garners broad bipartisan support, but is it good policy?
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Lax legal statutes have not been proven to be a barrier to reporting, and there is no evidence to suggest that changes in mandatory reporting requirements will address the problem of physician nonreporting. In contrast, mandatory reporting by the lay public is more likely to result in spurious reports.
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Actively increasing the number of reports from nonspecialized individuals may cause harm in a number of ways. Most saliently, mechanisms to increase reporting do not necessarily include increased funding or additional personnel dedicated to children’s services. Accordingly, increased reporting depletes resources that are already spread thin and diverts attention away from children who need it the most.
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Reports of neglect disproportionately target low-income families, who may experience a Child Protective Services intervention as an additional hardship, both emotionally and sometimes financially.
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Children subjected to questioning, physical exams, and occasionally temporary removal from their homes experience this as a traumatic event.
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Well-intentioned individuals may be more inclined to report suspicions of maltreatment rather than attempt to assist families, a concern that is particularly relevant in cases of low-income families suspected of neglect. Rather than stepping in to assist needy families with resources, the new mandatory reporting laws may lead individuals to report underfed or poorly dressed children.
...
Fear of reporting may prevent families from seeking help, whereas assurance of confidentiality has been shown to increase help-seeking behaviors.

6. My personal take is that the priest/penitent privilege is important, but stopping ongoing abuse is, I think, also important. If a bishop - and the Church - has the option to report, I think the presumptive/default policy of the Church should be that the bishop should report. That is, where the bishop has clear grounds for "reasonably believing" that abuse is occurring, the circumstances for not reporting should be narrowly tailored to preserve the clergy-penitent privilege, while also addressing allegations of abuse.

Anyway, back to the article:

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Unearthing the trauma wasn’t easy, but back in August she hoped reforms could be forthcoming so others would not face what she did.

“There was really a lot of momentum,” said Lundholm, now a teacher in northern Utah. “Everyone we were talking to was like, ‘This is a no brainer. This is something that needs to be changed.’”

"'This is a no brainer.'"

Um, that is very far off. Facile. Again, the Clergy-Penitent Privilege is not an inadvertent error or "loophole." It was intentionally created. While we all should have compassion for victims of abuse, we also need to be sensible and pragmatic in how we address it. Comments like the above are simplistic, blinkered and borne more from emotions than from reasoning and evidence.

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Proposals to reform laws that exempt clergy from child sex abuse reporting requirements went nowhere in Utah’s statehouse this year, failing to receive even a hearing as lawmakers prepare to adjourn for the year. Efforts were stymied by a coalition of powerful religious groups, continuing a yearslong pattern in which Catholics, Latter-day Saints and Jehovah’s Witnesses have defended the exemptions as survivors like Lundholm fight for reform.

I think it would help readers for the writer to take a beat to examine and impartially explain why "Catholics, Latter-day Saints and Jehovah’s Witnesses have defended the exemptions." He does this a little bit later on in the article, but in a sort of "bury the lede" kind of way.

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In Utah, where the majority of lawmakers are members of The Church of Jesus Christ of Latter-day Saints, state law requires most professionals — therapists, doctors and teachers among them — report abuse, yet clergy are exempt from alerting authorities about abuse they learn of through confessions.

I think the writer should have acknowledged that the Clergy-Penitent privilege exists in some form in all 49 of the other states, and DC, and the federal government, none of which has "majority of lawmakers {who} are members" of the Church.

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Republicans and Democrats announced plans last year to reform laws that exempt religious clergy from reporting child sexual abuse cases revealed in conversations with parishioners.

Behind-the-scenes conversations between legislative leaders in Utah and what Senate President Stuart Adams said was “a broad base of religious groups” helped thwart four separate proposals to add clergy to the list of professionals required to report child sexual abuse.

“I think they have First Amendment rights and religious protections,” Adams, a Latter-day Saint himself, said, noting fears among religious leaders that clergy could be punished for breaking vows of confidentiality.

"Helped thwart."

"Efforts were stymied by a coalition of powerful religious groups..."

Yeesh.

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Each proposal was introduced or announced after an Associated Press investigation found that the Utah-based Church of Jesus Christ of Latter-day Saints’ sexual abuse reporting hotline can be misused by its leaders to divert abuse accusations away from law enforcement and instead to church attorneys who may bury the problem, leaving victims in harm’s way.

In lawsuits detailed in the investigation, attorneys from the faith widely known as the Mormon church have argued clergy-penitent privilege allows them to refuse to answer questions and turn over documents about alleged sexual abuse.

The "investigation" referred to here is the one about Paul Adams. We have had a number of discussions about this (see, e.g., here, here, here, here, here, and, most recently, here).

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Church officials declined to comment about the stalled legislative efforts. The Catholic Diocese of Salt Lake City did not respond to requests for comment but campaigned against them, saying in January that priests and clergy were different from other professionals mandated to report sexual abuse.
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Marci Hamilton, chief executive of the abuse prevention nonprofit Child USA, said churches have maintained the same playbook for decades in opposing more disclosure.

Routinely it involves a two-pronged approach, defending clergy-penitent privilege in statehouses and using it to avoid damaging disclosures in court cases, said Hamilton, also a University of Pennsylvania law professor.

“They have not veered from it. Both institutions are hoping that time will simply let everybody start trusting them again,” Hamilton said, referring to Catholics and Latter-day Saints.

But, she added, “by preventing the public — and especially the sincere believers — from getting the full story you don’t create the accountability that these organizations should be held to and the secrets continue.”

“The problem in the United States — and this is particularly acute in state like Utah — is that the lobbying power of these religious organizations is so extraordinary,” Hamilton said.

Our Catholic friends have, as we know, spent years dealing with a great controversy of child abuse by Catholic priests. I think that is something of a separate issue from the Clergy-Penitent Privilege (though the two topics also have some clear overlap). So Marci Hamilton seems to be a bit muddled here. "Let's get rid of the Clergy-Penitent Privilege because of the Catholic abuse scandal" doesn't make much sense to me, particularly from a law professor.

I looked up Marci Hamilton and Child USA, the website for the latter having a "Social Science Resources" section. This section includes four subcategories:

"Surveys" ("Surveys conducted by CHILD USA to gain first hand accounts of survivors experiences"),
"White Papers & Other Reports" ("written by CHILD USA's Social Science Department on data compiled by the organization"),
"Social Science Projects" ("See what our Social Science team is working on!"), and
"Social Science Research" ("Important research in the field of child abuse and neglect").

Note that "Social Science Research" has no link. Meanwhile, none of the other links provide any information on the efficacy of expanding mandatory reporting laws (that I could see, anyway). Also, I got zero hits when I used the site's search feature to look for the phrase "mandatory reporting." Nor is there any content on the site which analyzes the Clergy-Penitent Privilege.

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Laws in 33 states exempt clergy — regardless of religion — from laws requiring people report child sexual abuse allegations to authorities. Religious leaders have systematically fought efforts to expand the list of states. They currently oppose efforts from Vermont to Washington, where a proposal advanced through the state Senate Tuesday.

Kansas lawmakers introduced multiple proposals on penalties for not reporting suspected child sexual abuse, including one in the state Senate that would have added clergy to a list of mandatory reporters. It faced especially fierce public rebukes from Catholic leaders because it didn’t exempt confessions. No proposal received even a hearing before an initial deadline this year.

Again, the writer here does a disservice to his readers by not explaining the rationale for the Clergy-Penitent Privilege (including why holders of it - as with holders of other legal privileges - are often exempted from mandatory reporting laws).

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In the wake of the AP’s investigation last year, Republican state Rep. Phil Lyman and Democratic Rep. Angela Romero announced plans to reform Utah’s clergy-penitent privilege loophole. Lyman, who served six years as a Latter-day Saints’ bishop, said at the time lawmakers should want to reexamine the loophole “regardless of religious or political affiliation.”

“People should be able to go and confess their sins to their bishop without fear of being prosecuted up until when they are confessing something that has affected someone’s else life significantly,” he told the AP in August.

Lyman ultimately released a proposal that broadly affirmed clergy’s exemption from mandatory reporting. It didn’t advance or receive any hearing as lawmakers prepare to adjourn Friday. He did not respond to repeated requests for comment.

Lyman's proposed amendments to the state statute actually did not touch the provisions governing the Clergy-Penitent Privilege. Notably, Rep. Lyman's announcement in August 2022 that "he plans to introduce legislation that would require clergy to report child abuse to authorities, eliminating the clergy-penitent privilege," came "a week after The Associated Press published an investigative story focusing on cases in Arizona and West Virginia that found the church’s abuse reporting system can be misused by church leaders to divert abuse accusations away from law enforcement and instead to church attorneys who may bury the problem, leaving victims in harm’s way."

I suspect Lyman's announcement was a bit of a knee-jerk sort of thing that he later thought better of, as evidenced by his later proposed statutory amendment not modifying the Privilege at all.

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Proposals from Democratic Reps. Romero and Brian King, and Sen. Stephanie Pitcher to close or narrow the loophole have also not moved forward amid opposition from religious groups.

Both Pitcher and Romero, who is Catholic, said they planned to reintroduce their proposals next year.

“With AP uncovering what they uncovered, you’d think this would be a matter of urgency for this Legislature and for Legislatures across the country. But again we are allowing these institutions to dictate what we mandate,” Romero said, referring to the Catholic Church.

Romero's proposal (H.B. 115) :

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11     Highlighted Provisions:
12          This bill:
13          ▸     deletes provisions that exempt, under certain circumstances, a member of the clergy
14     from being required to report child abuse and neglect
...
45          (3) [~~Subject to Subsection (4), the~~] The reporting requirement described in Subsection
46     (1) does not apply to[~~:(a) a member of the clergy, with regard to any confession made to the~~
47     ~~member of the clergy while functioning in the ministerial capacity of the member of the clergy~~
48     ~~and without the consent of the individual making the confession, if:(i) the perpetrator made the~~
49     ~~confession directly to the member of the clergy; and(ii) the member of the clergy is, under~~
50     ~~canon law or church doctrine or practice, bound to maintain the confidentiality of the~~
51     ~~confession; or(b)~~] an attorney, or an individual employed by the attorney, if the knowledge or
52     belief of the suspected abuse or neglect of a child arises from the representation of a client,
53     unless the attorney is permitted to reveal the suspected abuse or neglect of the child to prevent
54     reasonably certain death or substantial bodily harm in accordance with Utah Rules of
55     Professional Conduct, Rule 1.6.
56          [~~(4) (a) When a member of the clergy receives information about abuse or neglect from~~
57     ~~any source other than confession of the perpetrator, the member of the clergy is required to~~
58     ~~report the information even if the member of the clergy also received information about the~~

59     ~~abuse or neglect from the confession of the perpetrator.~~]
60          [~~(b) Exemption of the reporting requirement for an individual described in Subsection~~
61     ~~(3) does not exempt the individual from any other efforts required by law to prevent further~~
62     ~~abuse or neglect by the perpetrator.~~]

So this essentially obliterates the entirety of the Clergy-Penitent Privilege in Utah. I don't think that will work.

King's Proposal (H.B. 212) (the underlined portion is the new language to be added to the statute) :

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11     Highlighted Provisions:
12          This bill:
13          ▸     clarifies that a member of the clergy may report suspected child abuse or neglect in
14     certain circumstances
...
58          (4) (a) Notwithstanding the exemption in Subsection (3)(a), a member of the clergy

59     may report suspected child abuse or neglect.
60          (b) When a member of the clergy receives information about abuse or neglect from any
61     source other than confession of the perpetrator, the member of the clergy is required to report
62     the information even if the member of the clergy also received information about the abuse or
63     neglect from the confession of the perpetrator.

The statute, as presently drafted, exempts clergy from mandatory reporting. This proposed amendment would give clergy the option to report.

So I suppose it kinda sorta kills the Clergy-Penitent as it is held by the confessor/penitent. I don't think that works, either. It may even be the worst of both worlds.

Pitcher's Proposal (SB0072) :

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11     Highlighted Provisions:
12          This bill:
13          ▸     provides that the clergy exemption for the required reporting of child abuse or
14     neglect does not apply if a clergy member has reason to believe that abuse or neglect
15     is ongoing or is likely to occur again;
16          ▸     requires a member of the clergy to report information about child abuse or neglect if
17     the clergy member discloses the information to a third party in certain
18     circumstances; and
...
62          (4) (a) When a member of the clergy receives information about abuse or neglect from
63     any source other than confession of the perpetrator, the member of the clergy is required to
64     report the information even if the member of the clergy also received information about the
65     abuse or neglect from the confession of the perpetrator.
66          (b) The exception in Subsection (3)(a) does not apply to a member of the clergy if the
67     member of the clergy:
68          (i) has reason to believe that the confessed abuse or neglect is ongoing or is likely to
69     occur again in the future; or
70          (ii) discloses the confession to a third party and the disclosure is not reasonably
71     necessary for the clergy to fulfill their ministerial duties toward the individual making the
72     confession.

So this one continues to exempt clergy from mandatory reporting except when the clergy "has reason to believe that the confessed above ... is ongoing or is likely to occur again" or the clergy unnecessarily "discloses" the confession to a third party.

I don't think this works, either. It muddies the water tremendously.

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Several Utah lawmakers told AP that opponents of limiting clergy-penitent privilege regarding child sexual abuse had circulated research that they claimed suggests mandatory reporting reform doesn’t result in more confirmed reports of sexual abuse and may deter perpetrators from speaking to clergy.

The linked-to "research" is a law journal article from 2014. Some of the takeaways from that article (emphases added) :

"Many professionals and policymakers have expected that these changes will result in better identification and response to CM, but the effects of such changes on reporting rates have not yet been systematically evaluated."
"When the categories of professionals required to report suspected child sexual assault in New South Wales, Australia, for example, were extended to include teachers and other school professionals, there was a significant increase in the number of reports received from teachers but no change in the quality of their reports as measured by the percentage of reports that were verified (Lamond, 1989)."
"When we looked at the association of universal reporting laws with total and confirmed CM reports, there were higher report rates in large counties with universal reporting, but most of the additional confirmed reports were for neglect (Palusci & Vandervort, 2014)."

As the above-linked "Unintended Consequences" article notes: "Reports of neglect disproportionately target low-income families, who may experience a Child Protective Services intervention as an additional hardship, both emotionally and sometimes financially. ... Well-intentioned individuals may be more inclined to report suspicions of maltreatment rather than attempt to assist families, a concern that is particularly relevant in cases of low-income families suspected of neglect. Rather than stepping in to assist needy families with resources, the new mandatory reporting laws may lead individuals to report underfed or poorly dressed children."

Because "neglect" is more of a subjective "eye of the beholder" kind of thing (e.g., a kid from a poor family who is found "poorly dressed" might be reported as being "neglected"), and - in my view - is therefore a somewhat distinct and separate category that merits a different approach as compared to allegations of sexual abuse.

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“What most of the research shows is that if people aren’t able to come to them for fear of being reported on, they’re not able to provide the help and support they need,” Sen. Ann Milner said.

However, conclusions drawn from the study, which the Catholic Diocese also circulated in opposition to a similar bill from Romero in three years ago, have been challenged by its authors.

University of Michigan law professor Frank Vandervort and his co-author, Vincent Palusci, a pediatrics professor at New York University, told the AP last year the study was limited, partly because churches often wouldn’t give them access to relevant data.

“A single article should not be the basis for making policy decisions,” Vandervort said. “It may be entirely the case that there’s no connection between the changing of the laws and the number of reports.”

Hmm. I can't help but wonder if Vandervort and Palusci were nervous about their research being used in ways that ardent reformers don't like.

That said, Vandervort has a point.

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Lundholm said Utah lawmakers adjourning without having a “true public discussion” on any clergy-penitent privilege reform proposal provoked eerily familiar feelings for survivors. Though she never expected political change to happen overnight, she said survivors like her who had abuse go unreported — once again — feel unheard.

“Maybe the worst part is that this is something that survivors experience often, and unfortunately, it’s rare when their stories are heard,” she said.

I don't know what "unheard" means in this context.

Anyway, thoughts?

Thanks,

-Smac

Edited March 2, 2023 by smac97

Calm · March 2, 2023

I suspect “heard” doesn’t just mean they have been read or listened to, but that their stories have been taken to heart and acted upon or at least seriously addressed rather than eventually set aside and ignored maybe after what amounts to a few pats on the head as she likely feels is what is happening, correctly or incorrectly.

helix · March 2, 2023

I'm saddened how many people want to regulate and compel religious speech by literally jailing people with this core reasoning: "You don't have the right to silent, anything you don't say can and will be used against you in a court of law."

The AP claims to champion the First Amendment, yet they push stories like this while also heavily implying this decision was done because of "Mormon Utah".

Edited March 2, 2023 by helix

pogi · March 3, 2023

16 hours ago, helix said:

I'm saddened how many people want to regulate and compel religious speech by literally jailing people with this core reasoning: "You don't have the right to silent, anything you don't say can and will be used against you in a court of law."

The AP claims to champion the First Amendment, yet they push stories like this while also heavily implying this decision was done because of "Mormon Utah".

I don't think this is a proper and fair interpretation of the Fifth Amendment. The 5th amendment protects people from being "compelled to give testimony that could incriminate them. This is not the same as sayinga person has a right to silence at all times. In some situations, police may use silence itself as incriminating evidence."

https://www.justia.com/criminal/procedure/miranda-rights/right-to-silence/#:~:text=The Fifth Amendment to the,silence itself as incriminating evidence.

Therapists and other healthcare professionals are required by law to report suspected or reported abuse. Their silence could incriminate them. Do you think that is a violation of the 5th Amendment?

MustardSeed · March 3, 2023

10 minutes ago, pogi said:

Therapists and other healthcare professionals are required by law to report suspected or reported abuse. Their silence could incriminate them.

To be clear, only in the case of a power differential, specifically with minors or elders- Or if danger is imminent otherwise. (USA, not aware of other countries laws)

Edited March 3, 2023 by MustardSeed

pogi · March 3, 2023

14 minutes ago, MustardSeed said:

To be clear, only in the case of a power differential, specifically with minors or elders- Or if danger is imminent otherwise. (USA, not aware of other countries laws)

Yes, that is what is being discussed in relation to religion too - specifically "child abuse".

It is a category error to apply the 5th amendment to mandated reporting.

MiserereNobis · March 3, 2023

On 3/2/2023 at 11:21 AM, smac97 said:

Marci Hamilton, chief executive of the abuse prevention nonprofit Child USA, said churches have maintained the same playbook for decades in opposing more disclosure.

To be clear, the above quote is not smac writing, but it is his quote from the article.

Marci Hamilton is misleading here. I will readily concede that the Catholic Church has opposed the weakening of the privilege and has been using a "playbook" to do so for decades. But the problem with this statement is that the Catholic Church has held the absolute sanctity of the confessional seal for literally centuries, not decades.

One of the more famous martyrs for the seal is St. John Nepomucene. He was executed in 1393 by the King of Bohemia for refusing to divulge the Queen's confession. There are many more such martyrs.

If a priest breaks the confessional seal, he is instantly and automatically excommunicated. This excommunication can only by lifted by the Pope (which means it's a very big deal).

The seal is absolute. It doesn't matter if the penitent has already broken it. It also doesn't matter if the penitent has given permission for the priest to break it. The priest cannot break the seal under any circumstance.

In practical terms, that means removing the legal privilege will have no bearing on the confessional seal. Priests will go to jail rather than break the seal.

On 3/2/2023 at 11:21 AM, smac97 said:

Our Catholic friends have, as we know, spent years dealing with a great controversy of child abuse by Catholic priests. I think that is something of a separate issue from the Clergy-Penitent Privilege (though the two topics also have some clear overlap). So Marci Hamilton seems to be a bit muddled here. "Let's get rid of the Clergy-Penitent Privilege because of the Catholic abuse scandal" doesn't make much sense to me, particularly from a law professor.

This quote is smac, not the article.

Yes, there is overlap. Some of the abusing priests would confess the abuse, often to their bishop. The bishops often would do nothing, or simply transfer the priest to another parish, allowing the abuser to continue. The bishops could have and should have removed the priest from ministry entirely without breaking the confessional seal.

Edited March 4, 2023 by MiserereNobis

The Nehor · March 3, 2023

18 hours ago, helix said:

I'm saddened how many people want to regulate and compel religious speech by literally jailing people with this core reasoning: "You don't have the right to silent, anything you don't say can and will be used against you in a court of law."

The AP claims to champion the First Amendment, yet they push stories like this while also heavily implying this decision was done because of "Mormon Utah".

That is not what the 5th amendment means.

smac97 · March 3, 2023

20 hours ago, Calm said:

Quote

I don't know what "unheard" means in this context.

I suspect “heard” doesn’t just mean they have been read or listened to, but that their stories have been taken to heart and acted upon or at least seriously addressed rather than eventually set aside and ignored maybe after what amounts to a few pats on the head as she likely feels is what is happening, correctly or incorrectly.

I'm afraid I still don't know what this means.

"Taken to heart and acted upon" seems to be a sort of "my way or the highway" sentiment that I sometimes hear in litigation, usually from people who are representing themselves or else have little or no experience in lawsuits. If the litigation doesn't go their way, it's because the judge "wasn't listening," or even that the judge is biased or corrupt. Absent substantial evidence, I think this is an unwarranted and self-serving leap in logic. The judge usually does listen to the parties, but then takes all the other facts and evidence and legal principles into account when rendering a decision. On participant's story / perspective / opinion / argument is a contribution to the adjudication process, but it's only one piece of the pie.

So it is, I think, with legislators. For example, take Romero's proposal (H.B. 115), which would effectively obliterate the Clergy-Penitent Privilege in Utah. As I understand it, around 38 of the 104 legislators in Utah are attorneys. The sponsor of H.B. 115, Angela Romero, is not one of them. Isn't it possible, then, that some of the 38 lawyers in the legislature - as well as many other members of that body - are aware of the profound legal (particularly constitutional) ramifications of Romero's bill? That there could be significant drawbacks to eliminating the Privilege?

The sponsors of the two other proposals, Brian King and Stephanie Pitcher, are both attorneys. Brian King got his license in 1985, so he's been around the block. He is a litigator, mostly in medical stuff. Stephanie Pritcher got her license in 2015 and is a county prosecutor, so she's a litigator. They both attempted - without much success - to formulate a less drastic approach to reforming the Privilege.

In any event, from the article in the OP:

Quote

Proposals to reform laws that exempt clergy from child sex abuse reporting requirements went nowhere in Utah’s statehouse this year, failing to receive even a hearing as lawmakers prepare to adjourn for the year. Efforts were stymied by a coalition of powerful religious groups, continuing a yearslong pattern in which Catholics, Latter-day Saints and Jehovah’s Witnesses have defended the exemptions as survivors like Lundholm fight for reform.

I am curious about this. What evidence is there that "{e}fforts were stymied by a coalition"? Per Chat GPT, during the 2021 session (the most recent data Chat GPT has), a total of 1,301 bills were introduced in the Utah State Legislature, including both the House of Representatives and the Senate. Of these, only about 39-40% received a committee hearing. And of the 1,301 bills, 510 passed both chambers, and 465, or roughly 36% of the introduced bills, were eventually signed into law.

Of the bills passed, the vast majority of them are tweaks, minor adjustments to state law here and there. A bill that eliminates an important legal privilege is going to be a tough sell.

Also, repealing (or modifying) the Clergy-Penitent Privilege is not exactly a new idea. From Chat GPT:

Quote

Here are some examples of bills introduced in the Utah legislature since 2000 that sought to modify or repeal the Clergy-Penitent Privilege:

In 2003, HB 184 was introduced in the Utah House of Representatives, which sought to remove the Clergy-Penitent Privilege for cases involving child abuse or neglect. The bill was not passed.

In 2010, HB 30 was introduced in the Utah House of Representatives, which sought to limit the Clergy-Penitent Privilege for cases involving child abuse or neglect. The bill was not passed.

In 2011, SB 104 was introduced in the Utah Senate, which sought to repeal the Clergy-Penitent Privilege altogether. The bill was not passed.

In 2012, HB 37 was introduced in the Utah House of Representatives, which sought to require clergy to report child abuse or neglect even if it was disclosed during a confidential communication. The bill was not passed.

In 2018, SB 51 was introduced in the Utah Senate, which sought to modify the Clergy-Penitent Privilege by requiring clergy to report child abuse or neglect that is disclosed during a confidential communication. The bill was passed and signed into law by the governor.

in 2021, H.B. 90 was introduced to modify the Clergy-Penitent Privilege in Utah. The bill proposed to add language to Utah Code Section 78B-1-137 that would clarify that the privilege does not apply in cases of child abuse or neglect. The bill ultimately did not pass.

Please note that this is not an exhaustive list, and there may have been other bills introduced in the Utah legislature during this time period that also sought to modify or repeal the Clergy-Penitent Privilege.

I have no qualms with re-introducing legislation. It's part of the process. But if a legislative proposal has been repeatedly rejected over the last twenty years, then its advocates need to be circumspect and reasonable, particularly when there has not been any particular intervening event or development that might alter the legislators' consensus on the topic.

Moreover, even if the statutory Clergy-Penitent Privilege were repealed, the Privilege would, I think, continue to exist in Rule 503 of the Utah Rules of Evidence. The Utah Rules of Evidence are promulgated by the Utah Supreme Court under the authority granted to it by the Utah Constitution, and that Court is a co-equal branch of government with the State Legislature. This may be part of why the bills didn't get committee hearings.

And perhaps the biggest impediment to abolishing the Clergy-Penitent Privilege is Article I, Section 4 of the Utah Constitution, which protects religious liberty, and which has been interpreted by the Utah appellate courts as protecting the Privilege. Some examples from Chat GPT:

State v. Jones, 942 P.2d 905 (Utah Ct. App. 1997): In this case, the court considered whether a defendant's communications with a bishop of the Church of Jesus Christ of Latter-day Saints were protected by the Clergy-Penitent Privilege under the Utah Constitution. The court held that the privilege applied, noting that the Utah Constitution provides strong protections for religious freedom and the right to privacy, which are both implicated by the privilege.
State v. Holm, 2009 UT 67, 221 P.3d 1233: In this case, the Utah Supreme Court considered whether a defendant's communications with his bishop were protected by the Clergy-Penitent Privilege under the Utah Constitution. The court held that the privilege applied, noting that the Utah Constitution provides "broad and robust protections for religious freedom" that encompass the privilege.
State v. Hicks, 2015 UT 79, 364 P.3d 1030: In this case, the Utah Supreme Court considered whether a defendant's communications with a pastor were protected by the Clergy-Penitent Privilege under the Utah Constitution. The court held that the privilege applied, noting that the Utah Constitution provides strong protections for religious freedom and the right to privacy, which are both implicated by the privilege.

As I understand it, the extent to which this privilege is protected by the First Amendment is a matter of some debate among legal scholars and the courts. The First Amendment protects the free exercise of religion and the freedom of speech, including the freedom of religious leaders to communicate with their congregants. Some argue that the Clergy-Penitent Privilege is a necessary protection for the free exercise of religion and therefore falls within the scope of the First Amendment. However, the Supreme Court of the United States has not explicitly held that the Clergy-Penitent Privilege is protected by the First Amendment. Instead, the Court has apparently generally addressed the privilege as a matter of state law or common law, rather than a constitutional right (I have not researched this point). If that is so, then the Utah Constitution, and the Supreme Court's interpretation of it, governs.

Back in 2020 the Deseret News published a pretty good Op-Ed about this topic: In our opinion: Eliminating clergy-penitent privilege raises First Amendment red flags

Some excerpts:

Quote

This week the Catholic League came out strongly against proposed legislation in Utah aiming to eliminate an exemption for clergy when it comes to reporting confidential confessions detailing abuse.
...
{S}ome question the wisdom of priest-penitent privileges when child abuse is confessed. Protecting children from abuse is vital, meriting unrelenting efforts to support victims and prosecute perpetrators. A majority of states still recognize that such efforts can be pursued while balancing valuable protections of certain confidential spousal, attorney-client or priest-penitent communications.

Under Utah law, clergy are among those required to report suspected abuse. But, like a majority of states, Utah also provides an exemption from reporting when abuse is discovered through a confidential confession to clergy. In addition to Utah, 25 other states have mandatory reporting laws which specifically name clergy (alongside other community members such teachers and law enforcement) as required under law to report child abuse.

I think this is a pretty good approach. Though I question some aspects of "mandatory reporting" laws (as well as the wisdom of expanding them), overall we do need some mechanism in place to compel reporting of suspected abuse. However, such a policy does not exist in a vacuum, as it implicates constitutional and other considerations. Consequently, a generalized "mandatory reporting" law which contains some exceptions for privileged communications is, I think, the better way to go.

Quote

But, in all but a small handful of states, clergy are exempt in circumstances of clergy-penitent confession. Still other states have laws which make all adults — including clergy — mandatory reporters of child abuse, but, according to a review by Christianity Today, even a majority of those states (eight total) similarly “provide an exemption via the clergy-penitent privilege.”

That the majority of states have taken this balanced approach is pretty good evidence for it being the better way to go.

Quote

As others have argued, the push to eliminate the clergy-penitent privilege raises First Amendment red flags; others are concerned about winnowing away laws related to personal freedom or privacy, particularly at a time when mass surveillance is ubiquitous and personal data breaches are common.

I think this is an important point.

A somewhat corollary concern, not directly addressed in the Op-Ed, is the concerted focus on eliminating only one of the exemptions from mandatory reporting, namely, the Clergy-Penitent Privilege. If we as a society can appreciate the value of exempting communications between an individual and his doctor, or his therapist, or his attorney, I think we can and ought to do the same as regarding his communications with his "clergy."

Quote

For at least two centuries, however, jurists in common law traditions have recognized an additional reason why attempts to compel clergy to “divulge any confessions made … in the course of religious visits” might actually subvert the chief “object of punishment,” namely “the reformation and improvement of the offender.” The hope inherent in confidential confession is that clergy can help the penitent change, reform and, in instances of criminal activity, turn themselves in to square with the law, their victims and ultimately pay the appropriate legal debt to society for their wrongs.

It stands to reason that eliminating certain clergy-penitent exemptions would deter perpetrators from freely confessing. And, in the words of a Colorado-based attorney discussing the proposed legislation in Utah, “The confessional is not just a black hole. If a priest hears something in confession, they may urge the person to get help, talk to police or say ‘talk to me outside of the confessional.’”

This is a very good summary of some of the benefits that accrue in retaining the Clergy-Penitent Privilege.

Quote

Meanwhile, any legislation that seeks to pry open the priest-penitent privilege, according to religious experts, risks trampling the “Seal of Confession,” a tenant of Catholic canon law dating back to at least the early 1200s. Catholic clergy warn that any betrayal of confidence from confession results in a priest’s excommunication. For centuries, even opponents of religion, such as Jeremy Bentham, have recognized the necessity of protecting the privilege rooted in both the Catholic faith and the common law tradition.

Here is where the First Amendment may come into play.

Quote

None of this is to discount the deeply troubling instances of abuse that occur at the hands of religious. Clergy — alongside fellow community members — must work assiduously to eradicate the scourge of abuse in any form. There must be zero tolerance, and, for Christians, Jesus Christ was unequivocal in his condemnation of those who harm “little ones.” While there must be no shadows in which perpetrators can hide from justice, in weighing public policies, a majority of states have found ways to acknowledge First Amendment freedoms and the longstanding importance of confidential confessions while continuing to fight for and protect the most vulnerable in society.

An excellent summary.

Thanks,

-Smac

SeekingUnderstanding · March 3, 2023

On 3/2/2023 at 11:21 AM, smac97 said:

Benefits of the Clergy-Penitent Privilege: Meanwhile, there is essentially never an acknowledgment of the various and many times the bishops of the Church have been instrumental in detecting and facilitating the stopping of abuse.

Where can I find out more about this?

smac97 · March 4, 2023

4 hours ago, SeekingUnderstanding said:

Where can I find out more about this?

I suppose you could ask current and former bishops.

Thanks,

-Smac

Benjamin McGuire · March 4, 2023

Just my two cents -

We already broadly accept the idea that the First Amendment is the secondary concern. Smac quoted this:

6 hours ago, smac97 said:

While there must be no shadows in which perpetrators can hide from justice, in weighing public policies, a majority of states have found ways to acknowledge First Amendment freedoms and the longstanding importance of confidential confessions while continuing to fight for and protect the most vulnerable in society.

The reality is that nearly all (if not all) states have decided that protecting the most vulnerable in society trumps the First Amendment. We do not, for example, believe that the First Amendment gives you the right to show pornography to children.

Confidential confessions are a problem in the context of the LDS Church because confessions of abuse require a membership court in which the information is being shared with others who did not take the confession. The LDS Church wants to include this under the umbrella of Clergy-penitent privilege, but it seems to be more complicated than is being recognized here. Additionally, if those involved from the Church's perspective necessarily investigate and discover details that corroborate the confession, are those details then bound under the same Clergy-penitent privilege? And then we have annotations in the membership record. These are, to some extent, viewable by an even larger group of people. Does this Clergy-penitent privilege cover this?

Finally, I don't know how the rest of you view this, but I think that it has become fairly clear to us (speaking collectively of the members of our society) that professional treatment may be necessary for some abusers. Part of this historic support for Clergy-penitent privilege in this context assumes that the clergy is able to help 'reform' the penitent. To the extent that this is simply not possible, does the basis for having the privilege get undermined?

SeekingUnderstanding · March 4, 2023

7 minutes ago, smac97 said:

I suppose you could ask current and former bishops.

Thanks,

-Smac

So no documented evidence of “the various and many” times having the privilege in place was “instrumental” in ending the abuse? Maybe that’s why there is no acknowledgement?

helix · March 4, 2023

10 hours ago, pogi said:

I don't think this is a proper and fair interpretation of the Fifth Amendment.

It's not a Fifth Amendment argument, it's a civil rights and a First Amendment argument. The government should not compel speech. The government should not regulate religious speech. Wanting to jail a Catholic priest because he sits still, says nothing, and does nothing, as part of his 800 year old religious doctrine, demonstrates something is severely wrong with our approach to the law.

Quote

Therapists and other healthcare professionals are required by law to report suspected or reported abuse.

Government can regulate employment licensing. Government should not regulate and compel private non-speech or religious non-speech.

Edited March 4, 2023 by helix

pogi · March 6, 2023

On 3/3/2023 at 7:50 PM, helix said:

It's not a Fifth Amendment argument, it's a civil rights and a First Amendment argument.

You were framing it as 5th Amendment argument using Miranda rights language, that's what I was responding to. See:

On 3/2/2023 at 4:39 PM, helix said:

"You don't have the right to silent, anything you don't say can and will be used against you in a court of law."

Quote

The government should not compel speech. The government should not regulate religious speech.

I don't believe in absolutes.

On 3/3/2023 at 7:50 PM, helix said:

Wanting to jail a Catholic priest because he sits still, says nothing, and does nothing, as part of his 800 year old religious doctrine, demonstrates something is severely wrong with our approach to the law.

I might be ok with protecting religions who have a long history of confessional seal as a religious requirement/doctrine. Our church doesn't have the same strict religious code and doctrine in regards to confessional seals. There is nothing in our religion which prohibits a bishop from reporting if the law requires. As Benjamin McGuire notes above that the same standard of clergy-penitent privilege simply doesn't exist in our church - Bishops are expected to share this information with church courts and in annotations, and we have no doctrine or historical practice which states that it MUST be kept confidential from the law.

So, what religious doctrine is being violated in our case? What in our religion privilege's us to be exempt from this legal expectation?

For example, some religions have been allowed to use peyote in religious ceremonies because they have a long documented history of this religious observance - this doesn't mean that all religions can use peyote simply because they are a church and immune from the law. Religious liberty does not provide absolute immunity to do whatever we want.

On 3/3/2023 at 7:50 PM, helix said:

Government can regulate employment licensing. Government should not regulate and compel private non-speech or religious non-speech.

This has nothing to do with "licensing". Government can, does, and should regulate private non-speech. In 18 states private citizens are required to reports suspected abuse of a child. Religions who don't have a long history of doctrine in this regard should be held to the same standard as other professionals and other private citizens.

Edited March 6, 2023 by pogi

helix · March 6, 2023

1 hour ago, pogi said:

I might be ok with protecting religions who have a long history of confessional seal as a religious requirement/doctrine.

That's directly anti-First Amendment. Government should not give one religion preferential treatment over another.

1 hour ago, pogi said:

So, what religious doctrine is being violated in our case?

Our faith is directly impacted by government regulating this part of repentance. Mandated clergy reporting hasn't been demonstrated to improve outcomes, and the opposite appears to be true. Many won't start the repentance process if they know going to a church for it means they get reported to the police. If we're going to violate the First Amendment, we better be sure we know we're going to have great outcomes as a result, and advocates for this law avoid this key step entirely.

1 hour ago, pogi said:

Government can, does, and should regulate private non-speech.

This is also a blatant civil rights violation. Where does compelling and regulating non-speech end? Where is the line?

Which of these regulations for non-speech are good? How do we make a clear dividing line which speech we get to regulate?

Requiring citizens to report when witnessing a violent act
Requiring citizens to report when witnessing theft
Requiring citizens to report when hearing someone else say they engaged in a violent act
Requiring citizens to pledge allegiance to the flag
Requiring citizens to occasionally advocate for causes which have been scientifically shown to be a positive for society
Requiring churches to recite government prepared documents as to the virtue of voting from their pulpit at least once a year
Requiring clergy to report if they believe they know congregants who are illegal immigrants
Requiring clergy to report if they hear children are living in conditions that the government may consider to be violation of any DCFS standards
Requiring Catholic priests to violate their confessional seal and report to the government any suspected abuse, then testify in a court of law what they heard

We have the First Amendment for a reason. The government should not compel speech of private citizens, especially churches. Once you go down this road, the possibilities are awful.

Edited March 6, 2023 by helix

pogi · March 6, 2023

32 minutes ago, helix said:

That's directly anti-First Amendment. Government should not give one religion preferential treatment over another.

I gave an example of peyote use to address how the government can and does give preferential treatment based on historical practice and doctrine.

32 minutes ago, helix said:

Our faith is directly impacted by government regulating this part of repentance. Mandated clergy reporting hasn't been demonstrated to improve outcomes, and the opposite appears to be true. Many won't start the repentance process if they know going to a church for it means they get reported to the police. If we're going to violate the First Amendment, we better be sure we know we're going to have great outcomes as a result, and advocates for this law avoid this key step entirely.

This is also a blatant civil rights violation. Where does compelling and regulating non-speech end? Where is the line?

Clearly compelled speech is not a civil rights violation as evidence by how the law is applied outside of religion. Religion is only protected because of its religiously held beliefs/doctrines. If they have none, then they shouldn't be protected. That is the line that should be drawn. Protect religious beliefs/doctrines, but immunity should not be provided where there is none.

32 minutes ago, helix said:

We have the First Amendment for a reason. The government should not compel speech of private citizens, especially churches. Once you go down this road, the possibilities are awful.

We are already down that road with private citizens. I think that absolutist applications are equally at risk of "awful" possibilities.

helix · March 6, 2023

38 minutes ago, pogi said:

I gave an example of peyote use to address how the government can and does give preferential treatment based on historical practice and doctrine.

Yes, and when one of its restrictions got challenged in the Utah Supreme Court, it was decided unanimously against it. The government tried to restrict it to Native Americans only, and that's anti-First Amendment.

You can't survive a court test making any law that gives Catholics one right and Latter-day Saints don't get. We've seen these kinds of court cases dozens of times. It's why the Church of Satan gets all the same rights as the rest of us. This is Civil Rights 101.

38 minutes ago, pogi said:

Clearly compelled speech is not a civil rights violation as evidence by how the law is applied outside of religion.

Show me all the Supreme Court cases which support compelled speech for private citizens.

38 minutes ago, pogi said:

We are already down that road with private citizens.

But not a solid court test. What people are desiring is the government pass an unconstitutional law. Not because it has better outcomes (because evidence leans against it), not because of civil rights (because it violates it), not because of the First Amendment (because it violates it), but because they are angry and they just want to do something to satisfy that anger. Many unconstitutional laws are on the books only because a legislative/executive body passed it, and nobody yet sued to stop it.

Quote

Protect religious beliefs/doctrines, but immunity should not be provided where there is none.

Looks like all of my proposed bullet points are fair game to be enacted by your metric.

Edited March 6, 2023 by helix

pogi · March 6, 2023

25 minutes ago, helix said:

Yes, and when one of its restrictions got challenged in the Utah Supreme Court, it was decided unanimously against it. The government tried to restrict it to Native Americans only, and that's anti-First Amendment.

You can't survive a court test making any law that gives Catholics one right and Latter-day Saints don't get. We've seen these kinds of court cases dozens of times. It's why the Church of Satan gets all the same rights as the rest of us. This is Civil Rights 101.

First of all, the Utah Supreme Court doesn't dictate federal law. Second of all, you are interpreting the ruling wrong. Not all religions/church's can legally use peyote (even in Utah). You can only legally use it in Utah if you are a member of a Native American Church. The ruling simply stated that you don't have to be a member of a Native American tribe. And not all church's which claim to be "Native American" are necessarily considered "valid" under the law.

https://www.indianz.com/News/2004/06/23/ruling_allows_n.asp#:~:text=In a unanimous decision%2C the,if they are not Indian.

25 minutes ago, helix said:

But not a solid court test. What people are desiring is the government pass an unconstitutional law. Not because it has better outcomes (because evidence leans against it), not because of civil rights (because it violates it), not because of the First Amendment (because it violates it), but because they are angry and they just want to do something to satisfy that anger. Many unconstitutional laws are on the books only because a legislative/executive body passed it, and nobody yet sued to stop it.

If there is no solid court test with the laws that exist, then I guess you have nothing more to stand on than I do. Either way, I support the laws that exist in this regard.

25 minutes ago, helix said:

Looks like all of my proposed bullet points are fair game to be enacted by your metric.

I never said that. Again, I am not an absolutist. You seem to swing for the extremes.

Benjamin McGuire · March 6, 2023

1 hour ago, helix said:

That's directly anti-First Amendment. Government should not give one religion preferential treatment over another.

This is always something of a red-herring. We almost universally believe that there are limitations to the first amendment. We may disagree what those limitations are, but we all agree that there are limitations. Believing that there are limitations is not itself anti-First Amendment. Because of these limitations, we have a sense that religions will get (in practice not theory) preferential treatment. Laws against polygamy (to use one example) impact some religions more than they do others.

1 hour ago, helix said:

Our faith is directly impacted by government regulating this part of repentance.

It is hard to take this at face value given the fact that the current Handbook of Instructions says that local leaders are required to follow local laws with regard to confessions, and that they are to contact the LDS Church's legal services to determine the possible requirements in any specific situation. Further, the Church Handbook also indicates that there may be instances where divulging the information may be necessary even without going through that process.

At the same time, LDS belief is that abusers need to face the legal consequences of their actions. This is, by its nature, government regulation of a part of the repentance process as understood by the LDS faith.

1 hour ago, helix said:

Mandated clergy reporting hasn't been demonstrated to improve outcomes, and the opposite appears to be true.

As far as I know, the data isn't granular enough to be able to draw these kinds of conclusions.

1 hour ago, helix said:

Many won't start the repentance process if they know going to a church for it means they get reported to the police.

You understand how inconsistent this is, right? Will they finish (or start) the process if they know that they have to go to the police and confess?

We no longer believe that for many perpetrators that a confessional process can result in change. Many of these perpetrators need professional help. Would they be willing to get that help knowing that the moment they discuss their victims with someone other than a clergy, they will get reported to the police?

1 hour ago, helix said:

Which of these regulations for non-speech are good? How do we make a clear dividing line which speech we get to regulate?

There is a certain amount of humor in this, if we take it from a historical standpoint. Until 1889, the Supreme Court of the United States held that the Bill of Rights (including the First Amendment) did not apply to states. But having said that, why don't we toss in there a few other ones, right?

Requiring citizens to report their income to the IRS? Filling out a census? The draft?

State and Federal courts have generally upheld the notion that these reports, alongside the mandated reporting of abuse, are merely the reporting of facts to the government. This is very different from being forced to say the pledge, or to advocate for causes. I think that in general, we (as a society) have done a fairly good job of drawing that line.

Edited March 6, 2023 by Benjamin McGuire

Amulek · March 6, 2023

On 3/2/2023 at 12:21 PM, smac97 said:

I think it would help readers for the writer to take a beat to examine and impartially explain why "Catholics, Latter-day Saints and Jehovah’s Witnesses have defended the exemptions."

I would certainly be interested in reading such an explanation because I must confess (pun intended) I'm not 100% sure as to the why for Latter-day Saints myself.

So far as I can tell, confidentiality is more a matter of Church policy and practice than of doctrine. There is nothing in scripture - ancient or modern - which requires Latter-day Saints to consider confessions sacrosanct.

And if the Church doesn't have a theological basis for holding confessions inviolate - which we clearly do not, as evidenced in the multiple jurisdictions where mandatory reporting is required - then I think it's fair for people to question why Latter-day Saints have gone out of their way to defend exemptions in cases involving abuse.

helix · March 6, 2023

1 hour ago, pogi said:

You can only legally use it in Utah if you are a member of a Native American Church.

An unconstitutional law was passed. When it was challenged on one aspect, the law failed miserably on First Amendment grounds. The law hasn't yet been challenged on the aspect you raised.

If some other religious group takes this peyote issue to court, requesting the same rights, they're going to win. Because governments can't grant rights to one religious group and deny it to another.

56 minutes ago, Benjamin McGuire said:

Requiring citizens to report their income to the IRS? Filling out a census? The draft?

Yes, taxes, census, and conscripting are in the Constitution.

All other compelled speech is not in the Constitution. Just the opposite, the Constitution forbids compelled speech not explicitly listed.

Nowhere does the Constitution give the government the right to compel the speech of private citizens and religions to advance what they think is a common good. The Supreme Court backs this up. Prove me wrong. Show me any court case where the government was given the right to jail someone for passively sitting still and saying nothing in church. Because that's exactly what this proposed law seeks to do.

Confessions are one of the Catholic's seven sacraments. Confessions are to be held with privacy, or else it's immediate excommunication. There is no in between.

You floated the justification that the Constitution gives the government the right to request "merely the reporting of facts to the government". No. The government can't bang on my front door and threaten me with jail unless I submit a form as to the facts of conversations with my wife. They also can't do this to a church. They especially shouldn't be a privileged third party to a Catholic sacrament of confession under the justification of merely gathering facts.

56 minutes ago, Benjamin McGuire said:

I think that in general, we (as a society) have done a fairly good job of drawing that line.

But society doesn't draw the line. The First Amendment does. That's the core issue that so many are failing to understand. Angry mobs make a poor choice to determine whose speech should be allowed and compelled.

Edited March 6, 2023 by helix

smac97 · March 6, 2023

49 minutes ago, Amulek said:

I would certainly be interested in reading such an explanation because I must confess (pun intended) I'm not 100% sure as to the why for Latter-day Saints myself.

So far as I can tell, confidentiality is more a matter of Church policy and practice than of doctrine.

I agree. I think it is extrapolated from doctrine, kind of like how recreational use of meth is prohibited via extrapolated application of the Word of Wisdom.

There are plenty of scriptures that speak of the necessity of "confession," the practical application of which in turn seems to require or call for the privilege.

Quote

Confession of sins is a necessary beginning step in the process of repenting and gaining forgiveness. It is a test of true repentance: "By this ye may know if a man repenteth of his sins-behold, he will confess them and forsake them" (D&C 58:43).
...
Confession helps lift the burden and leads toward peace, freedom, and happiness. After warning his hearers of excruciating pain and punishments that follow unrepented sins, the Lord said: "Confess your sins, lest you suffer these punishments" (D&C 19:20). Repentant persons find substantial psychological as well as spiritual strength in proper confession.

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