Article Re: Clergy/Penitent Privilege

[smac97]

1 hour ago, Benjamin McGuire said:

Quote

 

Quote

There is nothing in scripture - ancient or modern - which requires Latter-day Saints to consider confessions sacrosanct.

I'm less sure about this.

 

The only thing I really challenge with all of that Smac is the assertion in the article that you link that confession works for the truly penitent. For abuse that is linked to mental illness (or similar psychological problems), confession doesn't work (even if the perpetrators are truly penitent).

In my view, mental illness can materially inhibit what in legal parlance is called mens rea, or "guilty mind," that is, the intent to do wrong.  In scripture, this concept is addressed well in Moroni 7:

Quote

5 For I remember the word of God which saith by their works ye shall know them; for if their works be good, then they are good also.
6 For behold, God hath said a man being evil cannot do that which is good; for if he offereth a gift, or prayeth unto God, except he shall do it with real intent it profiteth him nothing.
7 For behold, it is not counted unto him for righteousness.
8 For behold, if a man being evil giveth a gift, he doeth it grudgingly; wherefore it is counted unto him the same as if he had retained the gift; wherefore he is counted evil before God.
9 And likewise also is it counted evil unto a man, if he shall pray and not with real intent of heart; yea, and it profiteth him nothing, for God receiveth none such.
10 Wherefore, a man being evil cannot do that which is good; neither will he give a good gift.

That said, "mental illness (or similar psychological problems)" covers a lot of territory.  I have a friend who spent time in prison for sexual abuse of a child.  He had a lifelong struggle with depression and a few other mental health issues, which I think substantially contributed to his misconduct.  And yet he stopped the abuse and eventually ended up in prison because . . . he confessed.  He spoke to his bishop, who encouraged him to turn himself in to authorities.  He did.  He later pleaded guilty.  He was sentenced to a term of some years in prison.  

1 hour ago, Benjamin McGuire said:

I also want to reassert that we believe that abuse is a crime against individuals and not merely a crime against God. Confession doesn't resolve the need for justice.

True.  But it sure can grease the skids in a few ways.  From Section 38.6.2.7 of the Handbook (emphasis added) :

Quote

38.6.2.7

Legal Issues Relating to Abuse

If a member’s abusive activities have violated applicable law, the bishop or stake president should . The bishop or stake president can obtain information about local reporting requirements through the Church’s help line (see 38.6.2.1). If members have questions about reporting requirements, he encourages them to secure qualified legal advice.

Church leaders and members should fulfill all legal obligations to report abuse to civil authorities. In some locations, leaders and teachers who work with children and youth are considered “mandated reporters” and must report abuse to legal authorities. Similarly, in many locations, any person who learns of abuse is required to report it to legal authorities. Bishops and stake presidents should call the help line for details about mandated reporters and other legal requirements for reporting abuse. The Church’s policy is to obey the law.

And here:

Quote

Responding to Abuse

(See General Handbook, 38.6.2.1.)

Church leaders and members should follow these guidelines when responding to abuse:

• When abuse occurs, the first and immediate responsibility of Church leaders is to help those who have been abused and to protect vulnerable persons from future abuse. Members should never be encouraged to remain in a home or situation that is abusive or unsafe.

• Church leaders and members should be caring, compassionate, and sensitive when working with victims and perpetrators and their families.

• Church leaders should never disregard a report of abuse or counsel a member not to report criminal activity to law enforcement personnel.

• Church leaders and members should fulfill all legal obligations to report abuse to civil authorities.

• Priesthood leaders should help those who have committed abuse to repent and cease their abusive behavior (see Isaiah 1:18; Doctrine and Covenants 64:7).

• Professional counseling may be helpful for the victims and perpetrators and their families. It is almost always advised in cases of serious abuse.

If the abuser confesses, the bishop can take immediate steps to help stop ongoing abuse and to curb risks of further abuse.

If the abuser confesses, the bishop can encourage the individual to stop the abuse, to move out (if the abuse is of a family member), to turn himself in to law enforcement, and so on.

So confession can, I think, be an important part of obtaining "justice" for the victims, for stopping the abuse, etc.

1 hour ago, Benjamin McGuire said:

Can we assume that these religious leaders believe that for confession to work it has to be coupled with an acceptance of responsibility and a subsequent involvement with law enforcement?

The Clergy-Penitent Privilege exists in the Church for a few reasons, a big one of which is to facilitate repentance.  Eliminating the privilege may well result in Brother Smith's confession to his bishop being passed on to law enforcement.  Bishops, then, become agents of the State. 

I recently read a comparison of including clergy in mandatory reporting laws to the State having permanent wiretaps in the bishop's office. 

All sorts of problems can arise from this.  For example, Brother Smith may well receive his legal comeuppance, but thereafter Brothers Jones, Thompson, and Beckett, and many others who have done similar wrongful things, may feel remorseful and have a desire to confess and seek help.  However, they will also look at what happened to Brother Smith, and they will realize that talking to the bishop in a "mandatory reporting" jurisdiction is functionally equivalent to confessing to the police.  As human nature being what it is . . . some (many? most?) will lack the moral fortitude to take that step.  So they will keep their sins to themselves.  And those sins will remain undetected.  And those proclivities will continue.  And so secrecy - so often an essential component of abuse - continues, and with it, the temptations to continue/repeat the abuse festers.

The Clergy-Penitent Privilege, like so many other legal concepts, is something that must be viewed in a context considerably larger than one specific instance of behavior.  

1 hour ago, Benjamin McGuire said:

I don't think that we can necessarily assume this to be the case (and there is certainly a lot of historical evidence to suggest that we shouldn't).

For bishops, it is far less a matter of personal belief, and much more a matter of administering the doctrines and policies of the Church.  And those doctrines and policies are, at present, quite good.  "Historical evidence" of how bishops handled/mishandled allegations of abuse ought to be viewed in the context of the Church's current training / resources / policies.

Thanks,

-Smac

Edited March 7, 2023 by smac97

[helix]

2 hours ago, Benjamin McGuire said:

No. Society draws the lines.

I think at this point we're disagreeing with each other and hit the point of just restating arguments.  I just have one last question.

2 hours ago, Benjamin McGuire said:

The rules are no different for Catholics than for any other religious group

You've argued that Americans do not have a right to go to church, sit still, and say nothing, and remain silent, as part of their religious beliefs. That certain incidents can force you to tell the government what you heard. 

What do you propose be done about Catholic clergy?  Should they be thrown in jail? Should America put pressure on them hoping they change their 800 year old doctrine? 

I never see realistic or straightforward answers to this question.

Edited March 7, 2023 by helix

[Benjamin McGuire]

1 hour ago, smac97 said:

True.  But it sure can grease the skids in a few ways.  From Section 38.6.2.7 of the Handbook (emphasis added) :

I don't disagree with this - however, we aren't speaking here specifically of Mormonism. Does Catholicism have the same perspective? Do Evangelicals? I would like to say that history doesn't give us a lot of faith that religion more broadly works this way - but it may be that our situation is too specific in some ways for history to be helpful.

1 hour ago, smac97 said:

the bishop can

You repeat this phrase more than once. What about "the bishop should ...". I think we can certainly both agree that within the LDS faith (and I won't speak for any others on this point) we probably don't provide our leaders with the training they need to really understand what to do in these circumstances (and hence the hotlines ...)

And, you have largely avoided the real challenge (which I think you do recognize):

1 hour ago, smac97 said:

So confession can, I think, be an important part of obtaining "justice" for the victims, for stopping the abuse, etc.

It is only a part - and it seems to me to be a really small part. After all, a bishop has no way of actually getting the rest of it to occur. Your statement amounts merely to a 'sometimes' this may happen. What is a bishop to do when the perpetrator doesn't do any of the steps the bishop recommends? If the perpetrator doesn't move out of the house, or doesn't turn himself in to law enforcement. Excommunication? But then, he already has to break that secrecy ...

1 hour ago, smac97 said:

The Clergy-Penitent Privilege exists in the Church for a few reasons, a big one of which is to facilitate repentance.  Eliminating the privilege may well result in Brother Smith's confession to his bishop being passed on to law enforcement.  Bishops, then, become agents of the State. 

On the first part, I agree. But I disagree with you on the issue that notifying the authorities isn't itself (at least in an LDS view) a part of facilitating repentance. And, on that last point, I disagree (and so does the Supreme Court of the United States). As Alito wrote in Ohio v. Clark (the most relevant part of the opinion):

Quote

Clark’s efforts to avoid this conclusion are all off-base. He emphasizes Ohio’s mandatory reporting obligations, in an attempt to equate L. P.’s teachers with the police and their caring questions with official interrogations. But the comparison is inapt. The teachers’ pressing concern was to protect L. P. and remove him from harm’s way. Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. And mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.

Receiving a confession, even if part of the confession contains something that must be reported, does not make the bishop an agent of the state. Just as it doesn't make other mandatory reporters (who aren't already agents of the state) an agent of the state.

And here, Alito turns some of your points on their head. Alito argues that the teachers concern is with the victims and not with the perpetrators. Should our bishops be more concerned with the perpetrators than with the victims?

Frankly, I think that bishops are, for the most part, far less worried about being agents of the state, and far more worried about knowing what their responsibility is when they are confronted with confessions of certain types of sin - and faced with evidence that the sin is likely to reoccur (or is ongoing).

1 hour ago, smac97 said:

All sorts of problems can arise from this.  For example, Brother Smith may well receive his legal comeuppance, but thereafter Brothers Jones, Thompson, and Beckett, and many others who have done similar wrongful things, may feel remorseful and have a desire to confess and seek help.  However, they will also look at what happened to Brother Smith, and they will realize that talking to the bishop in a "mandatory reporting" jurisdiction is functionally equivalent to confessing to the police.  As human nature being what it is . . . some (many? most?) will lack the moral fortitude to take that step.  So they will keep their sins to themselves.  And those sins will remain undetected.  And those proclivities will continue.  And so secrecy - so often an essential component of abuse - continues, and with it, the temptations to continue/repeat the abuse festers.

I think this is circular, and that it is a purely speculative argument. Of course, I don't have any evidence with which to counter your hypothetical, so any response I would make would also be speculative. So rather than getting into that back and forth, I would like to make the following observations -

The LDS Church has made a whole lot of changes that have been good changes. Clearly the LDS Church is willing to comply with legal requirements for mandatory reporting - even for its clergy. I think that there is always concern (especially with the LDS Church) when you put volunteers at risk for not reporting - and this is the basis for concerns over more states having such laws. But this isn't unique to volunteer clergy. I was in the same position when I was on a public school board (as a mandatory reporter) and I never saw myself as an agent of the state. Putting that aside, this isn't simply about the LDS faith and its response to these issues, but religion more broadly. And I think that given the positive steps that the LDS Church has been taking, before we make them the poster child for this issue, we need to understand if they are representative or not. Finally, I think that you really don't address the issue of justice. If the confession merely greases the skids, I don't think that this is enough to justify the argument that we shouldn't require clergy to be mandatory reporters. But again, that's merely my opinion (and it probably isn't worth a lot).

[Benjamin McGuire]

18 minutes ago, helix said:

You've argued that Americans do not have a right to go to church, sit still, and say nothing, and remain silent, as part of their religious beliefs. That certain incidents can force you to tell the government what you heard. 

This is a complete misconstruction of the argument. Americans do have the right to go to church, sit still, and say nothing, and remain silent, as part of their religious beliefs.

Americans also are required to comply with the government's need for information under certain circumstances.

When these things overlap, we use certain principles to identify when one has precedence over the other.

20 minutes ago, helix said:

What do you propose be done about Catholic clergy?  Should they be thrown in jail? Should America put pressure on them hoping they change their 800 year old doctrine? 

Only if they break the law. We expect them to face the consequences of breaking of any other law. But, this isn't really the end of the discussion.

The Pope in his Vos estis lux mundi (June 2019) issued changes to canon law which recognizes the requirements for Catholic clergy to make such reports where the law requires it. Article 19 of that text reads:

Quote

Art. 19 - Osservanza delle leggi statali

Le presenti norme si applicano senza pregiudizio dei diritti e degli obblighi stabiliti in ogni luogo dalle leggi statali, particolarmente quelli riguardanti eventuali obblighi di segnalazione alle autorità civili competenti.

Art. 19 – Compliance with state laws

These norms apply without prejudice to the rights and obligations established in each place by state laws, particularly those concerning any reporting obligations to the competent civil authorities.

Further, the Pope has put in place a requirement for clergy to report to law enforcement (mandatory reporting) any child abuse that occurs within the Vatican City State. Failing to do so results in fines and prison time. In 2020, the Catholic church issued a new manual for bishops (something along the lines of the LDS General Handbook) in which it says: "Even in cases where there is no explicit legal obligation to do so, the ecclesiastical authorities should make a report to the competent civil authorities if this is considered necessary to protect the person involved or other minors from the danger of further criminal acts." Clearly the Pope is not opposed to making such a change. You seem to have a much bigger problem with this than the Catholic church does (or than the LDS church does).

This is apart from the notion that we should recognize that if an 800 year old doctrine is based on bad ideas, updates are not the end of the world. Catholicism has a mechanism for this, as does the LDS church.

Look, if you want to be extreme, then we could simply ask - at what point do we recognize limits on the right to practice your religion? Should we allow for human sacrifice? Should we claim that religious leaders should protect that confession even when they learn that there is an immediate threat to the lives of others?

[smac97]

22 minutes ago, Benjamin McGuire said:

Quote

True.  But it sure can grease the skids in a few ways.  From Section 38.6.2.7 of the Handbook (emphasis added) :

I don't disagree with this - however, we aren't speaking here specifically of Mormonism. Does Catholicism have the same perspective? Do Evangelicals? I would like to say that history doesn't give us a lot of faith that religion more broadly works this way - but it may be that our situation is too specific in some ways for history to be helpful.

I was speaking specifically of the Church's use of the privilege.  I will let our Catholic and Evangelical friends speak for themselves.

22 minutes ago, Benjamin McGuire said:

You repeat this phrase more than once.

Actually, I repeat it only once:

• If the abuser confesses, the bishop can take immediate steps to help stop ongoing abuse and to curb risks of further abuse.
• If the abuser confesses, the bishop can encourage the individual to stop the abuse, to move out (if the abuse is of a family member), to turn himself in to law enforcement, and so on.

22 minutes ago, Benjamin McGuire said:

What about "the bishop should ...".

The bishop should following the doctrines and policies of the Church.  He is functioning in a representative, not individual, capacity.

22 minutes ago, Benjamin McGuire said:

I think we can certainly both agree that within the LDS faith (and I won't speak for any others on this point) we probably don't provide our leaders with the training they need to really understand what to do in these circumstances (and hence the hotlines ...)

Actually, I don't agree.  I think the training the bishops get these days is quite good.  The hotline is there to help the bishop navigate legal complexities, not instruct the bishop as to the particulars of pastoral care.

22 minutes ago, Benjamin McGuire said:

And, you have largely avoided the real challenge (which I think you do recognize):

Quote

So confession can, I think, be an important part of obtaining "justice" for the victims, for stopping the abuse, etc.

It is only a part - and it seems to me to be a really small part.

I respectfully disagree.  I think the confessor's reliance on the communication being kept confidential is a huge part of the calculus in making the confession.  Absent the assurance of confidentiality, many people would choose not to confess.

By way of analogy, go ask any criminal defense attorney if the Attorney-Client Privilege is merely "a really small part" of what he needs in order to effectively communicate and work with his client.  

Go ask a psychiatrist if he thinks the Doctor-Patient Privilege is merely "a really small part" of what he needs in order to effectively communicate and work with his patient.

22 minutes ago, Benjamin McGuire said:

After all, a bishop has no way of actually getting the rest of it to occur.

That is not so.  The bishop has all sorts of resources available to stop any ongoing abuse, to help with the victim's immediate, interim and long-terms needs, to encourage the individual to confess, to move out, etc.

22 minutes ago, Benjamin McGuire said:

Your statement amounts merely to a 'sometimes' this may happen.

I don't know what you mean here.  It's not that these forms of assistance "merely ... may" happen, but they do happen.  Bishops help victims of abuse all the time.

22 minutes ago, Benjamin McGuire said:

What is a bishop to do when the perpetrator doesn't do any of the steps the bishop recommends? If the perpetrator doesn't move out of the house, or doesn't turn himself in to law enforcement.

There is an old legal maxim: "Hard cases make bad law."  Essentially, "{t}he phrase means that an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases."  This maxim is so well-known there is even a Wikipedia article about it:

Quote

The phrase means that an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases. In other words, a general law is better drafted for the average circumstance as this will be more common.

I think it is wrong to take the worst possible scenario (which you describe above) and extrapolate it across all circumstances and all persons.  That is not reasonable, IMO.  An individual who is sufficiently guilt-ridden to divulge his terrible secret to a bishop is unlikely to refuse to "do any of the steps the bishop recommends."  

Moreover, if the individual knows beforehand that anything he divulges to a bishop will - by virtue of mandatory reporting laws - be promptly reported to law enforcement, he will be less likely to divulge the secret.  There is nothing unusual about this.  I have had countless instances of clients confiding in me as their attorney precisely because they know I am bound by the attorney-client privilege.  Most doctors and therapists would, I think, have similar experiences.

22 minutes ago, Benjamin McGuire said:

Excommunication? But then, he already has to break that secrecy ...

I don't think so.  Just as an Attorney-Client Privilege extends to paralegals who work with the attorney (and hence have access to private communications), I think most jurisdictions extend the Clergy-Penitent Privilege to those in the ecclesiastical body who are in a "need to know" environment.  IIRC, this point was recently addressed in Arizona.

22 minutes ago, Benjamin McGuire said:

Quote

The Clergy-Penitent Privilege exists in the Church for a few reasons, a big one of which is to facilitate repentance.  Eliminating the privilege may well result in Brother Smith's confession to his bishop being passed on to law enforcement.  Bishops, then, become agents of the State. 

On the first part, I agree. But I disagree with you on the issue that notifying the authorities isn't itself (at least in an LDS view) a part of facilitating repentance. And, on that last point, I disagree (and so does the Supreme Court of the United States). As Alito wrote in Ohio v. Clark (the most relevant part of the opinion):

Quote

Clark’s efforts to avoid this conclusion are all off-base. He emphasizes Ohio’s mandatory reporting obligations, in an attempt to equate L. P.’s teachers with the police and their caring questions with official interrogations. But the comparison is inapt. The teachers’ pressing concern was to protect L. P. and remove him from harm’s way. Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. And mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.

Ohio v. Clark did not involve a confidential or privileged communication.  Instead, it dealt with "whether statements to persons other than law enforcement officers are subject to the Confrontation Clause {of the Sixth Amendment}."  From the summary:

Quote

Clark sent his girlfriend to engage in prostitution while he cared for her 3-year-old son L.P. and 18-month-old daughter A.T. When L.P.’s preschool teachers noticed marks on his body, he identified Clark as his abuser. At Clark’s trial, the state introduced L.P.’s statements to his teachers as evidence of Clark’s guilt, but L.P. did not testify. The trial court denied Clark’s motion to exclude the statements under the Sixth Amendment’s Confrontation Clause. The Supreme Court of Ohio affirmed reversal of his conviction on Confrontation Clause grounds. The Supreme Court reversed. The Confrontation Clause generally prohibits the introduction of “testimonial” statements by a nontestifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” A statement qualifies as testimonial if the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony. Considering all relevant circumstances, L.P.’s statements were not testimonial; they were not made with the primary purpose of creating evidence for Clark’s prosecution. They occurred in the context of an ongoing emergency involving suspected child abuse. L.P.’s teachers asked questions aimed at identifying and ending a threat. L.P. never hinted that he intended his statements to be used by the police or prosecutors; the conversation was informal and spontaneous. Statements by very young children rarely, if ever, implicate the Confrontation Clause. Mandatory reporting obligations do not convert a conversation between a concerned teacher and her student into a law enforcement mission aimed at gathering evidence for prosecution. Whether a statement is testimonial is not determined by examining whether a jury would view the statement as the equivalent of in-court testimony, but by whether a statement was given with the “primary purpose of creating an out-of-court substitute for trial testimony.”

From the portion you quoted (addressing statements a preschool student, "L.P." had made to a teacher, which statement was later used by law enforcement and introduced at trial) :

Quote

L. P.’s statements clearly were not made with the primary purpose of creating evidence for Clark’s prosecution. Thus, their introduction at trial did not violate the Confrontation Clause.

L. P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse. When L. P.’s teachers noticed his injuries, they rightly became worried that the 3-year-old was the victim of serious violence. Because the teachers needed to know whether it was safe to release L. P. to his guardian at the end of the day, they needed to determine who might be abusing the child.  Thus, the immediate concern was to protect a vulnerable child who needed help.
...
L. P.’s teachers were not sure who had abused him or how best to secure his safety. Nor were they sure whether any other children might be at risk. As a result, their questions and L. P.’s answers were primarily aimed at identifying and ending the threat. ... The teachers’ questions were meant to identify the abuser in order to protect the victim from future attacks. Whether the teachers thought that this would be done by apprehending the abuser or by some other means is irrelevant.
...
There is no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution. On the contrary, it is clear that the first objective was to protect L. P. At no point did the teachers inform L. P. that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation between L. P. and his teachers was informal and spontaneous. The teachers asked L. P. about his injuries immediately upon discovering them, in the informal setting of a preschool lunchroom and classroom, and they did so precisely as any concerned citizen would talk to a child who might be the victim of abuse.

L. P.’s age fortifies our conclusion that the statements in question were not testimonial. Statements by very young children will rarely, if ever, implicate the Confrontation Clause. Few preschool students understand the details of our criminal justice system. Rather, “[r]esearch on children’s understanding of the legal system finds that” young children “have little understanding of prosecution.” ... Thus, it is extremely unlikely that a 3-year-old child in L. P.’s position would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all.

As a historical matter, moreover, there is strong evidence that statements made in circumstances similar to those facing L. P. and his teachers were admissible at common law. ... And when 18th-century courts excluded statements of this sort, they appeared to do so because the child should have been ruled competent to testify, not because the statements were otherwise inadmissible.  It is thus highly doubtful that statements like L. P.’s ever would have been understood to raise Confrontation Clause concerns.
...
Finally, although we decline to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L. P. was speaking to his teachers remains highly relevant. Courts must evaluate challenged statements in context, and part of that context is the questioner’s identity. Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.  It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police. We do not ignore that reality. In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial.

Clark’s efforts to avoid this conclusion are all off-base. He emphasizes Ohio’s mandatory reporting obligations, in an attempt to equate L. P.’s teachers with the police and their caring questions with official interrogations. But the comparison is inapt. The teachers’ pressing concern was to protect L. P. and remove him from harm’s way. Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. And mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.

It is not clear to me whether Justice Samuel Alito has ever written specifically in favor of the Clergy-Penitent Privilege, as this issue has not been the subject of many cases that have come before the Supreme Court during his tenure.  However, from our friend, Chat GPT:

Quote

Justice Samuel Alito has written opinions that have recognized and upheld various forms of privilege, including the Attorney-Client Privilege and the Psychotherapist-Patient Privilege.

For example, in the case of United States v. Jicarilla Apache Nation (2011), Justice Alito wrote the majority opinion in which the Court recognized the Attorney-Client Privilege for communications between a government agency and its attorneys. The Court held that the privilege applies to communications between an agency and its lawyers that are made for the purpose of obtaining legal advice or assistance, and that are kept confidential.

In the case of Jaffee v. Redmond (1996), Justice Alito, then a judge on the Third Circuit Court of Appeals, wrote a concurring opinion in which he joined the majority in recognizing the Psychotherapist-Patient Privilege. The Court held that a patient has a privilege to refuse to disclose confidential communications made to a psychotherapist in the course of diagnosis or treatment.

Overall, Justice Alito has shown a willingness to recognize and uphold various forms of privilege, including those that protect confidential communications between individuals and their attorneys or healthcare providers.

I really doubt Justice Alito would agree with your attempt to use his comments here - which have zero to do with confidential communications - in a discussion about the Clergy-Penitent Privilege.  

22 minutes ago, Benjamin McGuire said:

Receiving a confession, even if part of the confession contains something that must be reported, does not make the bishop an agent of the state.  Just as it doesn't make other mandatory reporters (who aren't already agents of the state) an agent of the state.

Sure seems like it.  In a de facto sense, if not de jure.

22 minutes ago, Benjamin McGuire said:

And here, Alito turns some of your points on their head.

Well, no.

22 minutes ago, Benjamin McGuire said:

Alito argues that the teachers concern is with the victims and not with the perpetrators.

Again, you are misapplying Alito's comments, which have nothing to do with confidential communications.

22 minutes ago, Benjamin McGuire said:

Should our bishops be more concerned with the perpetrators than with the victims?

First, I have never made a contrary "point."

Second, yes, bishops should be primarily concerned with the welfare of the victims.

Third, the Clergy-Penitent Privilege has a number of good and legitimate reasons for its existence, precisely zero of which has to do with the receiver of the privileged communication being more concerned with the perp than with the victim.  

Fourth, the loaded question doesn't help, as it a form of the false dilemma fallacy.

22 minutes ago, Benjamin McGuire said:

Frankly, I think that bishops are, for the most part, far less worried about being agents of the state, and far more worried about knowing what their responsibility is when they are confronted with confessions of certain types of sin - and faced with evidence that the sin is likely to reoccur (or is ongoing).

I did not suggest that bishops are "worried about being agents of the state."  Rather, I was saying that this is the practical, de facto (rather than de jure) result of including clergy as being subject "mandatory reporting" laws.

22 minutes ago, Benjamin McGuire said:

Quote

All sorts of problems can arise from this.  For example, Brother Smith may well receive his legal comeuppance, but thereafter Brothers Jones, Thompson, and Beckett, and many others who have done similar wrongful things, may feel remorseful and have a desire to confess and seek help.  However, they will also look at what happened to Brother Smith, and they will realize that talking to the bishop in a "mandatory reporting" jurisdiction is functionally equivalent to confessing to the police.  As human nature being what it is . . . some (many? most?) will lack the moral fortitude to take that step.  So they will keep their sins to themselves.  And those sins will remain undetected.  And those proclivities will continue.  And so secrecy - so often an essential component of abuse - continues, and with it, the temptations to continue/repeat the abuse festers.

I think this is circular, and that it is a purely speculative argument.

It is neither circular nor speculative.

Again, go ask any criminal defense attorney if his ability to do his job would be adversely affected by eliminating the Attorney-Client Privilege.

22 minutes ago, Benjamin McGuire said:

Of course, I don't have any evidence with which to counter your hypothetical, so any response I would make would also be speculative. So rather than getting into that back and forth, I would like to make the following observations -

The LDS Church has made a whole lot of changes that have been good changes.

I agree.

22 minutes ago, Benjamin McGuire said:

Clearly the LDS Church is willing to comply with legal requirements for mandatory reporting - even for its clergy.

Yes.

22 minutes ago, Benjamin McGuire said:

I think that there is always concern (especially with the LDS Church) when you put volunteers at risk for not reporting - and this is the basis for concerns over more states having such laws.

I think that may be part of the concern over eroding the Privilege, but not the only one.

22 minutes ago, Benjamin McGuire said:

But this isn't unique to volunteer clergy. I was in the same position when I was on a public school board (as a mandatory reporter) and I never saw myself as an agent of the state.

And yet, in a de facto sense, I think you were.

22 minutes ago, Benjamin McGuire said:

Putting that aside, this isn't simply about the LDS faith and its response to these issues, but religion more broadly.

My comments were "about the LDS faith and its response to these issues," rather than about "religion more broadly."

22 minutes ago, Benjamin McGuire said:

And I think that given the positive steps that the LDS Church has been taking, before we make them the poster child for this issue, we need to understand if they are representative or not.

I don't know what you mean here.

22 minutes ago, Benjamin McGuire said:

Finally, I think that you really don't address the issue of justice.

Okay.  I'll add a bit.

First, your comments about "the issue of justice" only further demonstrate why the stance you appear to advocate results in bishops becoming de facto agents of the State.  It is, after all, the responsibility of law enforcement, not bishops functioning in a purely ecclesiastical capacity, to pursue "justice."

Second, bishops are like doctors and lawyers in that they are all situated to be recipients of presumptively "confidential" communications.  You are suggesting that bishops ought to vitiate the privilege to pursue "justice," yet I really doubt you would be on board with gutting the privilege associated with your communications with your doctor or therapist or attorney.

Third, these privileges have existed for a long time, and there is extensive reasoning for them.  

Fourth, bishops are functioning in a representative, not individual, capacity.  They receive confessional communications precisely because they are functioning in that capacity.  Consequently, it would be a serious breach of their fiduciary duties (to the Church) to disregard the Church's policies and procedures and go all Crusader-Vigilante on the confessor.

22 minutes ago, Benjamin McGuire said:

If the confession merely greases the skids, I don't think that this is enough to justify the argument that we shouldn't require clergy to be mandatory reporters. But again, that's merely my opinion (and it probably isn't worth a lot).

There are a lot of considerations that comprise the underlying reasoning and rationale for the concept of privileged communications.  In the highly emotional context of discussions of child abuse, it is tempting to want to summarily toss the entirety of it aside.  But we need to act on reason more than on emotion.  Doctors and attorneys and spouses and clergy are all uniquely situated.  We have not formulated the concept of privilege to circumvent or frustrate "justice," but rather to take all applicable factors into account when dealing with confidential communications.

Thanks,

-Smac

[helix]

1 hour ago, Benjamin McGuire said:

The Pope in his Vos estis lux mundi (June 2019) issued changes to canon law which recognizes the requirements for Catholic clergy to make such reports where the law requires it.

The Catholic seal of confession is not affected by this.  Upon this change, The Catholic News Herald stated "The seal of confession, however, remains inviolable and is not affected by the new news."

1 hour ago, Benjamin McGuire said:

Only if they break the law...This is apart from the notion that we should recognize that if an 800 year old doctrine is based on bad ideas, updates are not the end of the world. Catholicism has a mechanism for this, as does the LDS church.

I'm still not getting a clear answer. Do we throw priests in jail for their sacrament of staying silent?  Or do we pressure the Catholic church to change? Or both, hoping the jailing leads to forcing a religion to change?

1 hour ago, Benjamin McGuire said:

Look, if you want to be extreme, then we could simply ask - at what point do we recognize limits on the right to practice your religion?

Are your actions directly affecting the rights of another? Such as murder, assault, sexual abuse? Government can regulate that.

Are you a third party, someone who wasn't involved in any way in the actions affecting another? Such as walking by on the street and seeing abuse, or overhearing a conversation about poor living conditions in church? The government should not require you to accuse them. The government especially shouldn't compel you to violate your core religious beliefs to accuse them. Something is very, very wrong about jailing people for the combination of 1) inaction, 2) being an uninvolved third party, 3) following core religious beliefs to silence, and 4) being unlucky to overhear something the government says must be reported to them.

1 hour ago, Benjamin McGuire said:

You seem to have a much bigger problem with this than the Catholic church does

Not so. Hang around Catholic forums and you'll see stronger and more emotional arguments. My state senator reported she fielded calls from numerous religions explaining how mandatory reporting is just a poor idea. This is not a one-off. 

Part of my frustration that this is a bad combination of 1) compelled speech, 2) removing religious liberty, 3) bad policy which will likely give opposite outcomes, and 4) will result in more false positives. I don't want to see children get abused any more than you don't.  But if mandatory reporting becomes a thing, less abusers will speak to their priest and less will get reported to police as a result. Studies are backing that concept up, yes, it's not crystal clear conclusive, but it's trending in that direction.  I also don't believe government has any right to be a third party in a religious confession. Some things should be off limits to the government, similar to how a the government is off limits to conversations between a client and attorney.

The personal issue for me, is the increase in false positives such laws generate. I'd have to dig up the link, but in short, when mandatory reporting laws go into force, people start over reporting out of fear of legal peril.

Two personal examples hit me and my ward.  In one, I've been falsely accused of child abuse. Long ago in high school, I organized a tutoring program for disadvantaged elementary children. Near the end of the year and next to my graduation,  one of the children went home and told his mother I hit him, hard. I did no such thing. It was a complete fabrication. The report was made to the principal. Fortunately for me, the principal knew this child to be dishonest and knew I didn't do any such thing. No laws required reporting. The principal let the matter drop. We continued tutoring.  Had today's laws in been in effect, I would have had to stop the tutoring program, had my name circulate among friends as a potential abuser, my parents would have had to retain an attorney at expensive cost, my employment opportunities would be limited, all while this matter drops. Then when it drops, many won't hear the outcome, and there will always be a lingering suspicion.

In a second example, my ward had a troubled 14 year old teenage girl. One ward council session the bishop gave us a stern warning to never be alone with this girl, even in passing, such as in a hallway. I'd never seen him so stern. She had been going around falsely accusing others, including the bishop, of sexual abuse. In this case, the bishop made the right call. Give it time and space and let the girl mature. She did. She remained active, made more friends in the ward, and matured into a healthy adult. Had this law been in effect, he would have had to report. Law enforcement would get involved, and word would spread through the ward about all the accused. People likely would have been removed from callings out of caution. When the matter would conclude, I would be shocked if this teenage girl would want to continue attending this ward. I would also be shocked if all ward members let go of any suspicion of the accused. The awful fallout from this mandated reporting would not have been worth it. Fortunately our bishop was wise and didn't report.

Such a law, though well-intentioned, can backfire in many ways and create more problems than it solves. Sometimes we think that all we need to do to solve a moral problem is to simply have the government mandate a fix. Then outcomes improve. But in this case, it's a good concept on the surface, with deep fundamental flaws throughout.

Edited March 7, 2023 by helix

[Calm]

1 hour ago, smac97 said:

There is an old legal maxim: "Hard cases make bad law."  Essentially, "{t}he phrase means that an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases." 

Is this actually an extreme case?  Since we don’t know the statistics, this could be the most common scenario for all we know. 

Quote

That is not reasonable, IMO.  An individual who is sufficiently guilt-ridden to divulge his terrible secret to a bishop is unlikely to refuse to "do any of the steps the bishop recommends."  

Abusers are notorious in their confessions of downplaying the severity of the abuse, blaming the victim, etc. It is not that hard for me to imagine an abuser talking themself into thinking there is no need to change and then later whatever moved him to confess being repressed enough that nothing is changed except for the worse.  There may be agreement in the confessional meeting, but that doesn’t mean there will be follow through once the abuser walks away from his emotional moment or that the abuser will tell the bishop later when confronted there is positive change when there hasn’t been.

We certainly know plenty of other confessions of less socially taboo sins do not automatically lead to changes, that often there are even commonly for many cycles of confession and regression with various behavior…such as what happens with other addictive behaviour (think of how often rehab fails).  I think it would be inappropriate to assume just because the sin is viewed as major and more taboo than most other sins, it is in a different category for responses post confession.   I just don’t believe the psychological evidence is there to support this. I may do research on this later when my head clears to be sure my memory on the stats on this isn’t messed up. 
 

(I am simply pointing out labeling the refusal of a perpetrator to change as an “hard case” is a massive assumption, not suggesting this means we should treat this type of situation as standard.)

 

Edited March 7, 2023 by Calm

[Calm]

1 hour ago, smac97 said:

  However, from our friend, Chat GPT:

Are you checking Chat GPT citations?  I have seen several cases where it got the citations themselves wrong (attributing to wrong person, wrong reference, facts were wrong, quote was messed up). You should always double check them if you plan on using them as evidence, imo. 

Edited March 7, 2023 by Calm

[smac97]

14 minutes ago, Calm said:

Quote

There is an old legal maxim: "Hard cases make bad law."  Essentially, "{t}he phrase means that an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases." 

Is this actually an extreme case?  

A person going to his bishop, confessing to one of the most horrendous crimes possible, and then refusing to follow any of the counsel of the bishop (presumably to continue the abuse), and the bishop being utterly incapable of doing anything to stop ongoing abuse?  That seemed to be the implication, and yes, that's pretty extreme.  Pretty "hard."

14 minutes ago, Calm said:

Since we don’t know the statistics, this could be the most common scenario for all we know. 

A scenario where the Clergy-Penitent Privilege precludes the bishop from taking any action to stop abuse?  No, I don't think that's very common.

14 minutes ago, Calm said:

Abusers are notorious in their confessions of downplaying the severity of the abuse, blaming the victim, etc.

Yes, that is a tendency.  But unless you expect bishops to start doing law enforcement investigation and forensics, and/or in-depth psychoanalysis, they can only go on the information the confessor is willing to provide.  If a man confesses downplays the severity of his proclivities regarding pornography, it does not follow that he is stepping out on his wife.  So making the speculative assumption that he is stepping out would be problematic.

14 minutes ago, Calm said:

It is not that hard for me to imagine an abuser talking themself into thinking there is no need to change and then later whatever moved him to confess being repressed enough that nothing is changed except for the worse.  There may be agreement in the confessional meeting, but that doesn’t mean there will be follow through once the abuser walks away from his emotional moment. 

Doctors and lawyers also face this sort of conundrum on a regular basis.  And yet nobody seems to be calling for the obliteration of the Doctor-Patient or Attorney-Client Privileges.

14 minutes ago, Calm said:

We certainly know plenty of other confessions of less socially taboo sins do not automatically lead to changes, that often there are even commonly for many cycles of confession and regression with various behavior…such as what happens with other addictive behaviour (think of how often rehab fails).  

Yes.

14 minutes ago, Calm said:

I think it would be inappropriate to assume just because the sin is viewed as major and more taboo than most other sins, it is in a different category for responses post confession.  

I'm sorry, but I don't understand what you are saying here ("responses post confession").

14 minutes ago, Calm said:

I just don’t believe the psychological evidence is there to support this. I may do research on this later when my head clears to be sure my memory on the stats on this isn’t messed up. 

(I am simply pointing out labeling the refusal of a perpetrator to change as an “hard case” is a massive assumption, not suggesting this means we should treat this type of situation as standard.)

I had in mind the sort of "hard case" in which the bishop has heard a clear confession of abuse and the confessor is refusing to stop or curb the abuse.

Thanks,

-Smac

[smac97]

12 minutes ago, Calm said:

Are you checking Chat GPT citations?  

Not every one, but quite a few, yes.  

12 minutes ago, Calm said:

I have seen several cases where it got the citations themselves wrong (attributing to wrong person, wrong reference, facts were wrong, quote was messed up). You should always double check them if you plan on using them as evidence, imo. 

I agree.

Thanks,

-Smac

[Calm]

29 minutes ago, smac97 said:

and yes, that's pretty extreme.  Pretty "hard.

Without reporting them?  How do you know?  It is not like spouses will listen to the bishop over the abuser every time.  I have heard of quite a few cases over the years so hard to know if very low percentage or higher where confession was made and the bishop makes arrangements for the spouse to ensure the abuser is never left alone with the child….and nothing actually happens.

[smac97]

5 minutes ago, Calm said:

Without reporting them?  How do you know?  

How do I know that it is a terrible conundrum for a bishop to be aware of actual abuse be be legally constrained from reporting it to law enforcement?  

The same way I know the difficulties I have sometimes encountered as an attorney.  I imagine doctors (particularly therapists) encounter this.

5 minutes ago, Calm said:

It is not like spouses will listen to the bishop over the abuser every time.  I have heard of quite a few cases over the years so hard to know if very low percentage or higher where confession was made and the bishop makes arrangements for the spouse to ensure the abuser is never left alone with the child….and nothing actually happens.

Yes.  Those are "hard cases."

Again, doctors and lawyers run into this sort of thing all the time, and yet nobody seems to be calling for the elimination of the Doctor-Patient / Attorney-Client Privileges.  

Why is that, do you think?

Thanks,

-Smac

[Calm]

2 hours ago, smac97 said:

Doctors and lawyers also face this sort of conundrum on a regular basis.  And yet nobody seems to be calling for the obliteration of the Doctor-Patient or Attorney-Client Privileges.

And I am not calling for it being pulled for clergy. I am just saying calling it an extreme or “hard case” and therefore being dismissive of concerns in the sense of not forming protocol/laws to address them on that basis is an unwarranted assumption Imo. 

Edited March 8, 2023 by Calm

[Calm]

1 hour ago, smac97 said:

Those are "hard cases."

Because they are unusual/marginal?  But you have no knowledge of how often they occur, so how do you know they are extreme cases?

If by “hard” you mean difficult, I would agree, but you said above that laws shouldn’t be made based on hard cases.  My guess is you don’t mean difficult, but unusual cases, but if you actually mean difficult cases, that doesn’t make much sense to me because that would wipe out laws having to do with crimes against family members being considered, juveniles as perpetrators, etc. 

Edited March 8, 2023 by Calm

[SeekingUnderstanding]

1 hour ago, smac97 said:

Again, doctors … run into this sort of thing all the time, and yet nobody seems to be calling for the elimination of the Doctor-Patient … [Privilege]

Are doctors not mandatory reporters?

[Saint Bonaventure]

I'm not going to detail this issue on First Amendment and other legal grounds, although I believe a very robust defense of the Seal of Confession could be made. 

I will offer a few points to consider on the Seal of Confession, which is, admittedly, only one facet of the clergy-penitent privilege. I don't think I'm comprehensive, by any means:

• In some places in the world, priests are already mandated reporters except when in the Sacrament of Reconciliation (Confession).
• Although the Seal of Confession was articulated with a severe penalty at the Fourth Lateran Council in 1215, that articulation formalized a practice of severe penalty for priests who violated the Seal that goes back even further. The Seal of Confession was articulated as early as 527 A.D., and Confession itself is articulated in the Didache (which is often dated to the 1st century A.D.)
• Catholic belief is that, in Confession, the priest represents God. Think about introducing the State and all its expectations and requirements into the holiest of LDS ordinances, and you're probably feeling what this feels like for Catholics.
• Frequently, penitents and priests are anonymous to one another. Sure, there are times when a parish priest recognizes a penitent's voice and vice versa, but often, this isn't the case. 
• Consider that Confession can be a good first step in a person ceasing their behavior.
• Consider all the red tape priests will be tied up with.
• Consider what could happen to prison ministries and to the Confessions of those condemned to die.
• Consider what could happen to priests who take death bed Confessions.
• Consider that priests don't choose who Confesses to them.
• Consider that sometimes people try to Confess for other people.
• Consider that priests have little choice in hearing/not hearing Confessions.
• Consider what enemies of the Catholic Church will do with this--entrapments, endless lawsuits, false confessions.
• Consider how priests anxious to avoid prison could over-report.
• Disparaging Confession was a common anti-Catholic trope in the United States in the 19th century. 
• By belief and practice, any priests or bishops who violate the Seal of Confession are automatically excommunicated.
• There are priests who would rather die than break the Seal of Confession, so many will go to jail for failure to comply.

Well, a few points anyway. 

[JustAnAustralian]

4 hours ago, Saint Bonaventure said:

There are priests who would rather die than break the Seal of Confession, so many will go to jail for failure to comply.

Yep. When mandatory reporting was brought in for clergy (including during confession) across Australia, Catholic priests were pretty open about the fact they weren't going to comply, and would instead go to jail.

[Benjamin McGuire]

16 hours ago, smac97 said:

I respectfully disagree.  I think the confessor's reliance on the communication being kept confidential is a huge part of the calculus in making the confession.  Absent the assurance of confidentiality, many people would choose not to confess.

Yes, we will have to disagree. As I said, you have no evidence of this. It is simply a matter of opinion.

16 hours ago, smac97 said:

By way of analogy, go ask any criminal defense attorney if the Attorney-Client Privilege is merely "a really small part" of what he needs in order to effectively communicate and work with his client.  

It's not a good analogy.

16 hours ago, smac97 said:

Go ask a psychiatrist if he thinks the Doctor-Patient Privilege is merely "a really small part" of what he needs in order to effectively communicate and work with his patient.

This is also not a good analogy. This is partly because, in both cases, there is a limit when the discussion includes details of ongoing crimes and imminent harm. But it is also partly because these are professionals who have a particular kind of client relationship with others. Religions (and clergymen) don't work in the same way. But, whatever.

16 hours ago, smac97 said:

Third, the Clergy-Penitent Privilege has a number of good and legitimate reasons for its existence, precisely zero of which has to do with the receiver of the privileged communication being more concerned with the perp than with the victim. 

Look, you haven't made a good case for this third point. Your arguments are all based on personal opinion. And this means that your observations in the fourth point don't have any validity. It's not a false dilemma, it's a central question to the issue.

16 hours ago, smac97 said:

There are a lot of considerations that comprise the underlying reasoning and rationale for the concept of privileged communications.  In the highly emotional context of discussions of child abuse, it is tempting to want to summarily toss the entirety of it aside.  But we need to act on reason more than on emotion.  Doctors and attorneys and spouses and clergy are all uniquely situated.  We have not formulated the concept of privilege to circumvent or frustrate "justice," but rather to take all applicable factors into account when dealing with confidential communications.

I think that we run into a problem here in that you are just as guilty as anyone else of acting on emotion and not reason. Your 'reasons' aren't based in evidence but in opinion. Your desire to defend isn't based on what the LDS Church is willing to do (they are clearly willing to comply with these laws where they exist).

Doctors and attorneys and spouses and clergy are all uniquely situated. And that means that the notions of privilege is uniquely situated (and not collectively). The notion of attorney privilege is (and should be) considered very different from clergy-penitent privilege. The problem that I have with what you say here is that there is more tradition in the concept of clergy-penitent privilege than there is actual applicable factors. And many of those traditions are not recognized as particularly valid any more.

[Calm]

5 hours ago, JustAnAustralian said:

Yep. When mandatory reporting was brought in for clergy (including during confession) across Australia, Catholic priests were pretty open about the fact they weren't going to comply, and would instead go to jail.

How long ago was this and have you heard of any cases where clergy were charged?

[Benjamin McGuire]

16 hours ago, helix said:

The Catholic seal of confession is not affected by this.  Upon this change, The Catholic News Herald stated "The seal of confession, however, remains inviolable and is not affected by the new news."

The same article also says that Catholic clergy have "The continued obligation to respect civil laws regarding mandatory reporting."

16 hours ago, helix said:

I'm still not getting a clear answer. Do we throw priests in jail for their sacrament of staying silent?  Or do we pressure the Catholic church to change? Or both, hoping the jailing leads to forcing a religion to change?

Yes, we throw them in jail if they break the law. Just like we throw them in jail if they are convicted of child abuse. Whether you like it or not, it is clear that the Catholic church is changing, largely on its own.

16 hours ago, helix said:

2) being an uninvolved third party

This is a big problem. Catholic priests aren't an uninvolved third party - especially when their role in the confessional is to absolve guilt. They aren't a third party when the victims are also members of the Church (this is also true for LDS congregations).

16 hours ago, helix said:

my frustration that this is a bad combination of 1) compelled speech, 2) removing religious liberty, 3) bad policy which will likely give opposite outcomes, and 4) will result in more false positives. I don't want to see children get abused any more than you don't.  But if mandatory reporting becomes a thing, less abusers will speak to their priest and less will get reported to police as a result. Studies are backing that concept up, yes, it's not crystal clear conclusive, but it's trending in that direction.  I also don't believe government has any right to be a third party in a religious confession. Some things should be off limits to the government, similar to how a the government is off limits to conversations between a client and attorney.

Mandatory reporting for clergy is already a thing - in most cases it exempts the confessional. This is reasonably appropriate in my opinion. But not because I think that the compelled speech is problematic. Rather, because I think that it doesn't serve a lot of purpose. We can find statements from priests who will say that mandatory reporting isn't helpful because pedophiles simply don't confess that they are doing something wrong (some of the priests have said that they have never heard such a confession). I tend to believe that this is a fairly accurate assessment. The goal behind making clergy mandatory reporters has very little to do with confessions by perpetrators and everything to do with individuals who claim that they are experiencing abuse. But here we tend to run into a different set of problems. If a victim of abuse complains of the abuse to a clergyman, that, I think, is a good reason to have mandatory reporting for clergymen. Within Mormonism, such a allegation should spark an investigation by Church leaders (if the perpetrator is LDS), In Catholicism, it is supposed to do the same thing. Once you have this investigation - it can no longer be considered a penitent-clergy privileged discussion.

It is simply a bad argument that fewer abusers will speak to their priests. Studies do not back this up. I have read several of the studies. The data isn't granular enough to even begin to make such a claim. We do know that mandatory reporting produces a lot of false positives (this indicated a greater need for training perhaps in the professions where we have mandatory reporting). And it seems reasonable that adding a few more mandatory reporters will likewise increase the number of false positives. But, it seems equally reasonable that it will generate an equally proportionate number of real positives. In this regard, one of the major reasons why we have mandatory reporting at all is the fact that this has been a moderately successful way of identifying real abuse and ending it. Without mandatory reporting the actual number of reports (false or true) drops a great deal. Most reports of child abuse (about two thirds) come from mandatory reporters. So if we eliminate mandatory reporting, we eliminate a great deal of the information we have on both actual and potential child abuse. And what do we have to replace it with? How do we combat abuse without these reporters?

There isn't any real corollary between an attorney and a clergyman. People keep repeating this - but that doesn't make it true. Among other things, an attorney privilege does not cover revelations of certain types of ongoing criminal activity or where the disclosure involves imminent harm to someone. In this sense, I completely agree with your statement: "Some things should be off limits to the government, similar to how a the government is off limits to conversations between a client and attorney." But let's reverse it. "Some things shouldn't be off-limits to the government, similar to how the government is allowed access to certain kinds of discussions between a client and attorney."

17 hours ago, helix said:

Two personal examples hit me and my ward.  In one, I've been falsely accused of child abuse. Long ago in high school, I organized a tutoring program for disadvantaged elementary children. Near the end of the year and next to my graduation,  one of the children went home and told his mother I hit him, hard. I did no such thing. It was a complete fabrication. The report was made to the principal. Fortunately for me, the principal knew this child to be dishonest and knew I didn't do any such thing. No laws required reporting. The principal let the matter drop. We continued tutoring.  Had today's laws in been in effect, I would have had to stop the tutoring program, had my name circulate among friends as a potential abuser, my parents would have had to retain an attorney at expensive cost, my employment opportunities would be limited, all while this matter drops. Then when it drops, many won't hear the outcome, and there will always be a lingering suspicion.

In a second example, my ward had a troubled 14 year old teenage girl. One ward council session the bishop gave us a stern warning to never be alone with this girl, even in passing, such as in a hallway. I'd never seen him so stern. She had been going around falsely accusing others, including the bishop, of sexual abuse. In this case, the bishop made the right call. Give it time and space and let the girl mature. She did. She remained active, made more friends in the ward, and matured into a healthy adult. Had this law been in effect, he would have had to report. Law enforcement would get involved, and word would spread through the ward about all the accused. People likely would have been removed from callings out of caution. When the matter would conclude, I would be shocked if this teenage girl would want to continue attending this ward. I would also be shocked if all ward members let go of any suspicion of the accused. The awful fallout from this mandated reporting would not have been worth it. Fortunately our bishop was wise and didn't report.

While I am sympathetic, I am not moved by the stories.

I have a lot of experience in other directions on this issue - both as a mandatory reporter myself and being indirectly involved with claims of abuse - including having to arrange for attorneys and so on. We don't define the scope of the problem by the false positives (most of which are never substantiated). We define the scope of the problem by our expectations of the number of abuse cases that we don't discover or prevent.

17 hours ago, helix said:

Such a law, though well-intentioned, can backfire in many ways and create more problems than it solves. Sometimes we think that all we need to do to solve a moral problem is to simply have the government mandate a fix. Then outcomes improve. But in this case, it's a good concept on the surface, with deep fundamental flaws throughout.

While I am sure that you have good intentions with what you are suggesting, I think that you are looking through blinders. We already have mandatory reporting in the United States in 48 states. 28 states include clergy in that mandatory reporting. Why did we start adding clergy to the list of mandatory reporting? It was because of the fact that we discovered that there was a large amount of abuse that was known about within the religious context - and the actions of those that knew allowed the abuse to continue. This wasn't an isolated problem. The point of making clergy mandatory reporters was to force them to help deal with the problem rather than to hide and ignore it. These kinds of incidents seem to suggest that one thing that confession doesn't do effectively is to get perpetrators to stop. And while our mandatory reporting laws may be flawed (a lot has changed in my lifetime - they have certainly improved), there is little doubt that the problem of child abuse is one that is ongoing - and that these laws help. Certainly we are a long ways from 1963 - when only one state made child abuse a crime (California). So before we argue that we shouldn't have mandatory reporters, we should decide on what we will do to replace them - and make sure that it is more effective than what we have now.

From the religious point of view, after decades of scandals, what seems clear to most of the population of the United States, is that religion more broadly has brought some of this on themselves - both by not doing a better job at preventing abuse, and by hiding it when it did occur.

[Benjamin McGuire]

15 hours ago, smac97 said:

How do I know that it is a terrible conundrum for a bishop to be aware of actual abuse be be legally constrained from reporting it to law enforcement?

Where is a bishop legally constrained from reporting abuse to law enforcement? There aren't any laws that make such a thing illegal.

16 hours ago, smac97 said:

Yes, that is a tendency.  But unless you expect bishops to start doing law enforcement investigation and forensics, and/or in-depth psychoanalysis, they can only go on the information the confessor is willing to provide.  If a man confesses downplays the severity of his proclivities regarding pornography, it does not follow that he is stepping out on his wife.  So making the speculative assumption that he is stepping out would be problematic.

The problem here is the assumption that the only way that bishops learn of abuse is through the confession. I suspect that it is actually a quite rare event for a perpetrator to confess. Most of the time, this information comes from other sources - and if a victim complains of abuse to a bishop, the bishop shouldn't have any reasons not to report it to the authorities - precisely because he isn't equipped to do a real investigation.

[MiserereNobis]

2 hours ago, Benjamin McGuire said:

20 hours ago, helix said:

The Catholic seal of confession is not affected by this.  Upon this change, The Catholic News Herald stated "The seal of confession, however, remains inviolable and is not affected by the new news."

The same article also says that Catholic clergy have "The continued obligation to respect civil laws regarding mandatory reporting."

This is mandatory reporting outside of the confessional, which I'm totally fine with. The confessional seal, though, is absolute and has been for centuries and centuries. This is core Catholic doctrine and law. What you've posted doesn't touch that.

2 hours ago, Benjamin McGuire said:

20 hours ago, helix said:

I'm still not getting a clear answer. Do we throw priests in jail for their sacrament of staying silent?  Or do we pressure the Catholic church to change? Or both, hoping the jailing leads to forcing a religion to change?

Yes, we throw them in jail if they break the law. Just like we throw them in jail if they are convicted of child abuse. Whether you like it or not, it is clear that the Catholic church is changing, largely on its own.

The Catholic Church is not going to change the sanctity of the confessional seal.

In Catholic history, there are many martyrs, priests who chose death over breaking the confessional seal.

Where do you draw the line when it comes to religious practice and the law? I'm not asking where the law draws the line -- but where do you draw the line?

I am fine with clergy being mandatory reporters outside of the confessional. But the state reaching into the confessional is the state reaching into a core part of my religious practice. That is unacceptable.

[Benjamin McGuire]

1 hour ago, MiserereNobis said:

Where do you draw the line when it comes to religious practice and the law? I'm not asking where the law draws the line -- but where do you draw the line?

My general principle is that we draw the line when the practice of religion is infringed on.

There is no question that in the issue of revealing confessions that this creates a conflict.

At the same time, I also recognize that there has to be limitations to this principle. That is, we don't allow anything at all in the name of religion. So even if we have a general principle, it doesn't allows indicate where the line should be. And we can certainly produce hypotheticals of core religious beliefs that we also believe should not be allowed in practice. Mormonism has experience with this in terms of polygamy. While I am not unsympathetic to the problem that this creates, I am not terribly sympathetic to it either. There is no question that we got to this point in part because of the way that the Catholic church has handled abuse in the past. They bear more than a minimum level of responsibility for the current shift in our society that has moved towards

In any society there are always competing rights. We give officially recognized religions benefits in exchange for the good that they provide to society. But with those benefits come responsibilities to society. Any religion could decide that the responsibilities to society are large enough that they no longer have an interest in the benefits. I am not suggesting that this is a reasonable solution either. I am merely pointing out another aspect of the problem.

I am also not opposed to leaving the confessional out of it. But I think that there has to be a recognition that our society has a clear responsibility to our most vulnerable members - and that any process that a church uses to avoid compromising the sanctity of the confessional provides mechanisms that are at least as effective at dealing with the problem as opening the confessional would be.

I think that Catholicism is making appropriate steps in the right direction.

But I will also say this - if a core part of your religious practice is responsible for preventable harm to children, then this is also unacceptable.

[webbles]

20 hours ago, SeekingUnderstanding said:

Are doctors not mandatory reporters?

https://www.childwelfare.gov/pubpdfs/mandaall.pdf goes over each state with who is required to report, who has privilege, and other details about mandatory reporting.

In 18 states, everyone is a mandatory reporter.

Quote

In approximately 18 States and Puerto Rico, any person who suspects child abuse or neglect is required to report. Of these 18 States, 16 States (Delaware, Florida, Idaho, Indiana, Kentucky, Maryland, Mississippi, Nebraska, New Hampshire, New Mexico, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, and Utah) and Puerto Rico specify certain professionals who must report but also require all persons to report suspected abuse or neglect, regardless of profession. New Jersey and Wyoming require all persons to report without specifying any professions. In all other States, territories, and the District of Columbia, any person is permitted to report.  These voluntary reporters of abuse are often referred to as “permissive reporters.”

 

The other states all appear to have some form of medical professional listed in the required reporters.

 

With regards to privileged communication:

Quote

The physician-patient and husband-wife privileges are the most common to be denied by States.

 Oregon is the only state that appears to permit a doctor related privilege:

Quote

A psychiatrist, psychologist, member of the clergy, or attorney shall not be required to report if such communication is privileged under law.

4 states don't address privileged communication

Quote

Connecticut, Mississippi, New Jersey, and New York do not currently address the issue of privileged communications within their reporting laws.

The others either don't mention doctor related privilege as being protected or specifically exclude it from protection.

[JustAnAustralian]

9 hours ago, Calm said:

How long ago was this and have you heard of any cases where clergy were charged?

Implementation date has been gradual over the last five years or so from the time I've been paying attention (South Australia was late 2018, Western Australia was the end of 2022).

Statements by bishops about rather going to prison are generally in the leadup to implementation in a state. As examples see: https://www.theguardian.com/world/2018/jun/15/south-australia-catholic-church-to-ignore-law-on-reporting-confessions-of-abuse and  https://www.9news.com.au/national/melbourne-news-catholic-clergy-pressured-to-report-child-abuse-confessions/0e4d1421-a21f-431f-b3fc-1929813dabdb

 

I haven't heard any instances of clergy being charged over mandatory reporting issues. But I also don't know how many people would be confessing it to a religious leader in the first place.

The biggest thing related to that in the news at the moment are issues of historical child sexual abuse, and reports from that are victim driven, not perpetrator driven.

Edited March 8, 2023 by JustAnAustralian