Article Re: Clergy/Penitent Privilege

[Tacenda]

On 3/8/2023 at 8:33 PM, webbles said:

Your link is on whether the ABA would reprimand the lawyer for breaking the lawyer-client privilege.  It would be similar to the Catholic church announcing that priests may/must go to the police and would not be breaking the seal of the confessional.  It allows a lawyer to partially follow the law if mandatory reporting is required and the state doesn't allow the lawyer-client privilege.  Indiana is one of the states that doesn't allow the privilege.  It doesn't allow any privilege and explicitly disallows some privileges (husband-wife, healthcare-patient, school counselor-student).

The ABA decision is also interesting that a lawyer would still be in trouble with the ABA if they told the police in Indiana about child abuse that wasn't super severe.  The lawyer is required, by state law, to report but also required, by ABA guidelines, to not report.

One interesting thing is that if the lawyer or priest did go to the police, their testimony would (in most states) be barred from the trial.  For example, the AZ law does allow a priest to go to the police but any statement he or she made would be barred from the trial because of the priest-penitent privilege.

Why isn't it different in AZ since it allows for a priest/bishop to report confessions. Why would a statement be barred?  Makes zero sense. 

[webbles]

9 minutes ago, Tacenda said:

Why isn't it different in AZ since it allows for a priest/bishop to report confessions. Why would a statement be barred?  Makes zero sense. 

What doesn't make sense?  The penitent controls the privilege and so can prevent the priest/bishop from testifying at the trial.

[Calm]

3 hours ago, Benjamin McGuire said:

I think they are good suggestions - but that is all that they are.

Thanks for the analysis.  Given quite a bit more dimension to the discussion.

[Tacenda]

20 minutes ago, webbles said:

What doesn't make sense?  The penitent controls the privilege and so can prevent the priest/bishop from testifying at the trial.

Then how come the priest/bishop is allowed to report if their statement isn't admissable? Will that make it difficult to convict?Oh well I guess at least the police will hopefully get the perp away from the victim for a time. 😟

[webbles]

2 minutes ago, Tacenda said:

Then how come the priest/bishop is allowed to report if their statement isn't admissable? Will that make it difficult to convict?Oh well I guess at least the police will hopefully get the perp away from the victim for a time. 😟

The mandatory reporting law says that the priest/bishop is allowed to tell the police.  I believe this is mostly to remove any liability to the priest/bishop for breaking the confidence.  But another law controls what is allowed in evidence.  And yes, it would make it difficult to convict.  The police would have to find further evidence beyond what was confessed.  That's why I believe that even if the AZ bishop had told the police, nothing would have happened and abuse would have continued.

[Tacenda]

Just now, webbles said:

The mandatory reporting law says that the priest/bishop is allowed to tell the police.  I believe this is mostly to remove any liability to the priest/bishop for breaking the confidence.  But another law controls what is allowed in evidence.  And yes, it would make it difficult to convict.  The police would have to find further evidence beyond what was confessed.  That's why I believe that even if the AZ bishop had told the police, nothing would have happened and abuse would have continued.

But the AZ laws allows it either way. So kind of a mandatory reporter right? It doesn't make since that law is pitiful and dangerous and favors the perp over the victim.

[webbles]

1 minute ago, Tacenda said:

But the AZ laws allows it either way. So kind of a mandatory reporter right? It doesn't make since that law is pitiful and dangerous and favors the perp over the victim.

"allows it either way"?  I don't know what you mean.  Just because someone is mandated to make a report or just wants to make a report doesn't mean that the report itself can be used in evidence.  The police can use it to start an investigation and find evidence but the original report itself might not be proper evidence.

[Tacenda]

20 minutes ago, webbles said:

"allows it either way"?  I don't know what you mean.  Just because someone is mandated to make a report or just wants to make a report doesn't mean that the report itself can be used in evidence.  The police can use it to start an investigation and find evidence but the original report itself might not be proper evidence.

Let me restate. Aren't mandatory reporters' statements admissable? If so the bishop/priest reports should be allowed.

[Calm]

1 minute ago, webbles said:

"allows it either way"?  I don't know what you mean.  Just because someone is mandated to make a report or just wants to make a report doesn't mean that the report itself can be used in evidence.  The police can use it to start an investigation and find evidence but the original report itself might not be proper evidence.

Just checking on my understanding…

This is different, correct?, from “fruit of the poisonous tree” because that limit, which would cause even the evidence found to be thrown out, only applies to the government as it is occurs when a constitutional right is violated?  Constitutional rights mostly do not apply to private actors, they are limits on what the government can do….so do not apply to churches in most cases (if they are seen as acting as agents for the government, such as in being funded by the government for adoption services).

[webbles]

14 minutes ago, Tacenda said:

Let me restate. Aren't mandatory reporters' statements admissable? If so the bishop/priest reports should be allowed.

They may or may not be admissible.  I would expect most are admissible but not all of them are.  The AZ mandatory reporting law doesn't change the evidentiary law.

[webbles]

2 minutes ago, Calm said:

Just checking on my understanding…

This is different, correct?, from “fruit of the poisonous tree” because that limit, which would cause even the evidence found to be thrown out, only applies to the government as it is occurs when a constitutional right is violated?  Constitutional rights mostly do not apply to private actors, they are limits on what the government can do….so do not apply to churches in most cases (if they are seen as acting as agents for the government, such as in being funded by the government for adoption services).

That's my understanding of "fruit of poisonous tree" as well.  A person can break a privilege (attorney-client, priest-penitent, doctor-patient) and inform the police and the police can act on it (though not use it in court).  But the police couldn't enlist an attorney/priest/doctor to break the privilege.

[webbles]

58 minutes ago, Tacenda said:

Let me restate. Aren't mandatory reporters' statements admissable? If so the bishop/priest reports should be allowed.

Here's another way to look at it.  In court, everyone has the right to challenge witnesses (6th Amendment).  "Out-of-court" statements (such as a mandatory report) can't be challenged in court so the person who made the report would need to be called as a witness so they can testify to what they reported.  The defendant would then be able to challenge the witness (such as saying they lied, misheard, etc).  For a bishop/priest, the defendant doesn't need to challenge them.  They can just prevent them from testifying for or against them.  Since the bishop/priest can't testify, their "out-of-court" statement also can't be admitted.

I came across a US Supreme Court case dealing with mandatory reports and whether they were admissible.  Ohio v Clack was a case in 2015 dealing with a man who physically abused his girlfriend's 3 year old son and infant daughter.  He had sent her off to prostitute herself (as he was her pimp) and he watched her kids.  The next day, when the 3 year old went to preschool, the teachers noticed marks on his body.  They questioned him and he said it was done by the man.  They sent in a mandatory report and he was arrested.  The problem was that the 3 year old couldn't testify in court (Ohio law prevents most kids under 10 from testifying), so the boy's comments to the teacher were questioned.  Initially, the trial court allowed the comments because Ohio also has a law allowing out-of-court statements from child abuse victims but the abuser argued that it was unconstitutional because of the 6th Amendment since he couldn't confront the 3 year old in court.  The appeals court and the Ohio Supreme Court agreed with the abuser and reversed the judgement.  The US Supreme Court reversed it again (ruled against the abuser) and said that the "out-of-court" statements that the 3 year old gave were not testimonial in nature.  Instead, they were an attempt by the teachers to protect the child.

In the AZ case, though, it wasn't a 3 year old who talked to the bishop.  It was the abuser himself.  If the bishop had sent in a mandatory report, it would be the bishop saying what he heard the man say, an "out-of-court" statement about another "out-of-court" statement.  So, the abuser has the right (under 6th amendment) to confront the bishop on the witness stand.  But the abuser also has control of the priest/penitent privilege and can prevent the bishop from being on the witness stand in the first place.

[Tacenda]

3 hours ago, webbles said:

They may or may not be admissible.  I would expect most are admissible but not all of them are.  The AZ mandatory reporting law doesn't change the evidentiary law.

You are so very patient with me webbles. Next time, tell me to look up the info for myself. I'm watching a very active granddaughter and her fur brother for a few days so I've just posted in passing and definitely lost a lot of sleep. 🤗

[helix]

17 hours ago, webbles said:

In the AZ case, though, it wasn't a 3 year old who talked to the bishop.  It was the abuser himself.  If the bishop had sent in a mandatory report, it would be the bishop saying what he heard the man say, an "out-of-court" statement about another "out-of-court" statement.  So, the abuser has the right (under 6th amendment) to confront the bishop on the witness stand.  But the abuser also has control of the priest/penitent privilege and can prevent the bishop from being on the witness stand in the first place.

And that's part of the awkwardness. A person could go to bishop for counseling on a gray area. In mandatory reporting states (edit: even for priest confessionals), the state could force the bishop to testify against the person. Thus, the person doesn't feel as though they can receive counsel.

Edited December 7, 2023 by helix

[webbles]

1 minute ago, helix said:

And that's part of the awkwardness. A person could go to bishop for counseling on a gray area. In mandatory reporting states, the state could force the bishop to testify against the person. Thus, the person doesn't feel as though they can receive counsel.

No, the state couldn't force the bishop to testify unless it was told to the bishop in a non-confidential manner.  The person controls the privilege, not the state nor the bishop.  The state can act on the report but must find evidence outside of the initial report to use in any court case.  And that could be problematic for some victims.  If a victim just wanted counseling, having a full on police investigation might be too much.

 

[bluebell]

1 hour ago, Tacenda said:

You are so very patient with me webbles. Next time, tell me to look up the info for myself. I'm watching a very active granddaughter and her fur brother for a few days so I've just posted in passing and definitely lost a lot of sleep. 🤗

You're such a good grandma.   

[helix]

43 minutes ago, webbles said:

No, the state couldn't force the bishop to testify unless it was told to the bishop in a non-confidential manner.  The person controls the privilege, not the state nor the bishop.  The state can act on the report but must find evidence outside of the initial report to use in any court case.  And that could be problematic for some victims.  If a victim just wanted counseling, having a full on police investigation might be too much.

I wasn't clear. I meant to say this would be the case in the few states where priests are mandatory reporters and no privilege exists, including for Catholic confessionals.

[MiserereNobis]

16 hours ago, helix said:

I wasn't clear. I meant to say this would be the case in the few states where priests are mandatory reporters and no privilege exists, including for Catholic confessionals.

Catholic priests should rather go to jail than break the confessional. There are many historical examples of priests suffering death rather than breaking the seal. Breaking the confessional entails automatic excommunication. The canons of the Church supersede the laws of man.

[Benjamin McGuire]

On 12/6/2023 at 4:47 PM, webbles said:

People have sued because of breaches in the priest-penitent privilege.

People sue for a lot of reasons. No one has won a suit of this sort.

The New York law is the broadest of laws that deal with priest-penitent privilege. The problem with the law, as the court pointed out, is that there is no basis in law that allows for the regulation of relationships within a religious organization as there is for other cases of fiduciary confidentiality. This isn't like healthcare where there is a government defined relationship between health care worker and patient, or the relationship between an attorney and his clients.  To enter into this arena would have disastrous implications for the separation of church and state. In returning to the subject of this thread, it is the relationship between government and these professionals that provides much of the basis for the government requiring these professionals to become mandatory reporters (to require them to report when they become aware of immediate dangers posed by or to the individuals in question - or whatever other criteria may exist). To place religious persons into that same space - to create a government defined relationship between priest and congregant - would be tantamount to conceding that the government can also require them to become mandatory reporters.

Edited December 8, 2023 by Benjamin McGuire

[webbles]

27 minutes ago, Benjamin McGuire said:

People sue for a lot of reasons. No one has won a suit of this sort.

The second link appears to say that at least 3 people won the suit.  I haven't been able to find what suits those were yet.

28 minutes ago, Benjamin McGuire said:

The New York law is the broadest of laws that deal with priest-penitent privilege. The problem with the law, as the court pointed out, is that there is no basis in law that allows for the regulation of relationships within a religious organization as there is for other cases of fiduciary confidentiality. This isn't like healthcare where there is a government defined relationship between health care worker and patient, or the relationship between an attorney and his clients.  To enter into this arena would have disastrous implications for the separation of church and state. In returning to the subject of this thread, it is the relationship between government and these professionals that provides much of the basis for the government requiring these professionals to become mandatory reporters (to require them to report when they become aware of immediate dangers posed by or to the individuals in question - or whatever other criteria may exist). To place religious persons into that same space - to create a government defined relationship between priest and congregant - would be tantamount to conceding that the government can also require them to become mandatory reporters.

The government has already required them to become mandatory reporters.  In AZ, a bishop is a mandatory reporter and MUST report if the information was found outside of a confessional.

[JustAnAustralian]

6 hours ago, MiserereNobis said:

Catholic priests should rather go to jail than break the confessional

When clergy started losing their mandatory reporting exemption around Australia, we had some Catholic priests openly state in the media that they'd go to jail rather than break the seal.

[Tacenda]

23 hours ago, bluebell said:

You're such a good grandma.   

Thanks😊

[Calm]

1 hour ago, JustAnAustralian said:

When clergy started losing their mandatory reporting exemption around Australia, we had some Catholic priests openly state in the media that they'd go to jail rather than break the seal.

Did any get charged and jailed yet?

[Tacenda]

What's that saying, don't blame the messenger? Something like that. Hope it's okay I share a podcast by Bill Reel about how he changed his mind on mandatory reporting. He made some very good points, probably the same points given by a few here and I hadn't thought about. I'll share the link to the podcast, and links he shared on it. 

https://mormondiscussionpodcast.org/2023/12/the-shocking-truth-about-mandatory-reporting-mormon-discussion-390/

 

https://publicsquaremag.org/politics-law/legal/a-misguided-crusade-how-mandatory-reporting-fails-our-children/

https://publicsquaremag.org/sexuality-family/sexual-abuse/latter-day-saint-abuse-myths/

https://search.brave.com/search?q=what+research+studies+say+about+mandatory+reporting&source=web

https://www.ncbi.nlm.nih.gov/books/NBK195993/

https://scholars.unh.edu/honors/15/

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5652515/

https://www.umass.edu/research/guidance/mandatory-reporting

https://aifs.gov.au/resources/resource-sheets/mandatory-reporting-child-abuse-and-neglect

https://ldi.upenn.edu/our-work/research-updates/preventing-child-abuse-is-more-reporting-better/

https://www.mdpi.com/2076-0760/11/7/273

https://www.childwelfare.gov/pubpdfs/manda.pdf

[bluebell]

50 minutes ago, Tacenda said:

What's that saying, don't blame the messenger? Something like that. Hope it's okay I share a podcast by Bill Reel about how he changed his mind on mandatory reporting. He made some very good points, probably the same points given by a few here and I hadn't thought about. I'll share the link to the podcast, and links he shared on it. 

https://mormondiscussionpodcast.org/2023/12/the-shocking-truth-about-mandatory-reporting-mormon-discussion-390/

 

https://publicsquaremag.org/politics-law/legal/a-misguided-crusade-how-mandatory-reporting-fails-our-children/

https://publicsquaremag.org/sexuality-family/sexual-abuse/latter-day-saint-abuse-myths/

https://search.brave.com/search?q=what+research+studies+say+about+mandatory+reporting&source=web

https://www.ncbi.nlm.nih.gov/books/NBK195993/

https://scholars.unh.edu/honors/15/

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5652515/

https://www.umass.edu/research/guidance/mandatory-reporting

https://aifs.gov.au/resources/resource-sheets/mandatory-reporting-child-abuse-and-neglect

https://ldi.upenn.edu/our-work/research-updates/preventing-child-abuse-is-more-reporting-better/

https://www.mdpi.com/2076-0760/11/7/273

https://www.childwelfare.gov/pubpdfs/manda.pdf

Changed his mind in favor or against?