PA Stake President Charged with Felony Under Mandatory Reporting Law

[smac97]

Wow: Harrisburg lobbyist, LDS church leader charged with not reporting child rape allegations

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HARRISBURG, Pa. (WHTM) — Pennsylvania State Police have charged Rhett Hintze, a lobbyist and “stake president” of seven area Church of Jesus Christ and Latter-Day Saints churches, with being aware of but not reporting child sex assault allegations against a Lebanon County church leader.

The above article is from September 2022, and pertains to Shawn Gooden, 47, who is "under investigation for the alleged sexual assault of a child between 1997 and 2000," where "the child was between 9 and 13 years old at that time," and who is a lawyer, and previously "a volunteer board member with the Boy Scouts of America New Birth of Freedom Council."  The linked article further states that "{S}ocial media posts by the Harrisburg stake of the Church of Jesus Christ of Latter-Day Saints depict Gooden holding a serious of leadership positions over the years, including president of its Lebanon Ward."  However, during the time period of the alleged misconduct (1997-2000), "social media" was not a thing, and Gooden would have been 22 to 25 years old, almost certainly too young to have been serving as a bishop.  So if the abuse occurred, it apparently did not arise in relation to him serving as a bishop.

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The charges were filed on Wednesday and Hintze is scheduled to be arraigned Friday.

Police expect Hintze, 53, who is chief operating officer of the Harrisburg-based Bravo Group, to turn himself in. He’s charged with “failure to report or refer” allegations, a third-degree felony. In Pennsylvania, third-degree felonies generally can carry prison terms of up to seven years.

Oi.  I have no experience with the state laws in Pennsylvania.  Apparently there is something of a daisy-chain here.  I will try to break it down:

First Link in the Daisy Chain: 23 Pa.C.S. § 6303(a) defines "Mandated Reporter" as "{a} person who is required by this chapter to make a report of suspected child abuse."

Second Link the Daisy Chain: 23 Pa.C.S. § 6311(a) further states that "Mandated reporters" are "adults {who} shall make a report of suspected child abuse, subject to subsection (b), if the person has reasonable cause to suspect that a child is a victim of child abuse."  Subpart (6) of this statute applies to clergy:

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A clergyman, priest, rabbi, minister, Christian Science practitioner, religious healer or spiritual leader of any regularly established church or other religious organization {shall make a report of suspected child abuse, subject to subsection (b), if the person has reasonable cause to suspect that a child is a victim of child abuse}.

I think Pennsylvania has structured its "mandatory reporting" law to include clergy as mandatory reporters, but only if they have "reasonable cause to suspect" child abuse from some source other than a privileged/confidential communication.  Take a look at the...

Third Link in the Daisy Chain: Another portion of the statute, 23 Pa.C.S. § 6311.1, appears to include "clergy" as those exempted from the above mandatory reporting statute, but only if he received the information via a confidential communication:

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§ 6311.1.  Privileged communications.

(a)  General rule.--Subject to subsection (b), the privileged communications between a mandated reporter and a patient or client of the mandated reporter shall not:

(1)  Apply to a situation involving child abuse.

(2)  Relieve the mandated reporter of the duty to make a report of suspected child abuse.

(b)  Confidential communications.--The following protections shall apply:

(1)  Confidential communications made to a member of the clergy are protected under 42 Pa.C.S. § 5943 (relating to confidential communications to clergymen).

(2)  Confidential communications made to an attorney are protected so long as they are within the scope of 42 Pa.C.S. §§ 5916 (relating to confidential communications to attorney) and 5928 (relating to confidential communications to attorney), the attorney work product doctrine or the rules of professional conduct for attorneys.

Subpart (a) states that "the privileged communications between a mandated reporter and a patient or client of the mandated reporter shall not ... {r}elieve the mandated reporter of the duty to make a report of suspected child abuse," but this requirement is expressly "{s}ubject to subsection (b), which references the next link in the daisy chain:

Fourth Link in the Daisy Chain: 42 Pa.C.S. § 5943 states:

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§ 5943.  Confidential communications to clergymen.

No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

To sum up: "No {clergyman} ... who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled...to disclose that information in any legal proceeding, trial or investigation before any government unit."

IOW, if the Stake President learned of the purported abuse from some way other than a confidential communication, he is a "mandatory reporter."

Fifth Link in the Daisy Chain: The hyperlink in the story above is to a portion of the Pennsylvania state laws, 23 Pa.C.S. § 6319, governing what appear to be "mandatory reporting" requirements:

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§ 6319.  Penalties.

(a)  Failure to report or refer.--

(1)  A person or official required by this chapter to report a case of suspected child abuse or to make a referral to the appropriate authorities commits an offense if the person or official willfully fails to do so.

(2)  An offense under this section is a felony of the third degree if:

(i)  the person or official willfully fails to report;

(ii)  the child abuse constitutes a felony of the first degree or higher; and

(iii)  the person or official has direct knowledge of the nature of the abuse.

(3)  An offense not otherwise specified in paragraph (2) is a misdemeanor of the second degree.

(4)  A report of suspected child abuse to law enforcement or the appropriate county agency by a mandated reporter, made in lieu of a report to the department, shall not constitute an offense under this subsection, provided that the report was made in a good faith effort to comply with the requirements of this chapter.

(b)  Continuing course of action.--If a person's willful failure under this section to report an individual suspected of child abuse continues while the person knows or has reasonable cause to suspect a child is being subjected to child abuse by the same individual, or while the person knows or has reasonable cause to suspect that the same individual continues to have direct contact with children through the individual's employment, program, activity or service, the person commits a felony of the third degree, except that if the child abuse constitutes a felony of the first degree or higher, the person commits a felony of the second degree.

(c)  Multiple offenses.--A person who, at the time of sentencing for an offense under this section, has been convicted of a prior offense under this section commits a felony of the third degree, except that if the child abuse constitutes a felony of the first degree or higher, the penalty for the second or subsequent offenses is a felony of the second degree.

(d)  Statute of limitations.--The statute of limitations for an offense under this section shall be either the statute of limitations for the crime committed against the minor child or five years, whichever is greater.

Note that subpart (1)(a) of this statute says it applies to "{a} person or official required by this chapter to report a case of suspected child abuse." 

Taken together, these statutes would seem to apply to a stake president to exempt him from mandatory reporting requirements if he receives information about abuse from a "confidential communication," but not if he received information from some other source. 

Back to the article:

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According to police documents, Hintze’s church leadership role made him a “mandated reporter” under Pennsylvania’s Child Protective Services Law, which dates to 1975 but expanded in 2014 following the Jerry Sandusky scandal to include more categories of people as mandated reporters and to increase the penalties for not reporting allegations.

Huh.  This gets a bit weird. 

First, note that the police are trying the SP's status as a "mandatory reporter" to his "church leadership role."  

Second, I am almost certain that a SP will be considered a "clergy" per the foregoing statutes.

Third, the above link is not to a statute, but to a PDF file published by Pennsylvania, which includes the following (emphasis added) :

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Who is a mandated reporter?

The following adults are considered mandated reporters and are required to report suspected child abuse if they have reasonable cause to suspect that a child is a victim of child abuse:

• Individuals licensed or certified to practice in any health-related field under the jurisdiction of the Department of State
• Medical examiner, coroner, or funeral director
• Employees of a health care facility or providers licensed by the Department of Health who are engaged in the admission, examination, care, or treatment of individuals.
• School employees
• Employees of child care services who have direct contact with children in the course of employment.
• Clergymen, priests, rabbis, ministers, Christian Science practitioners, religious healers, or spiritual leaders of any regularly established church or other religious organization.
• Individuals — paid or unpaid — who, on the basis of the individuals’ role as an integral part of a regularly scheduled program, activity, or service, are responsible for the child’s welfare or has direct contact with children
• Employees of a social services agency who has direct contact with children in the course of employment
• Peace officers or law enforcement officials • Emergency medical services providers certified by the Department of Health
• Employees of a public library who have direct contact with children in the course of employment
• Individuals supervised or managed by a person listed above, who have direct contact with children in the course of employment
• Independent contractors who has direct contact with children
• Attorneys affiliated with an agency, institution, organization or other entity, including a school or regularly established religious organization that are responsible for the care, supervision, guidance, or control of children
• Foster parents
• Adult family members who are  responsible for the child’s welfare and provide services to a child in a family living home, community home for individuals with an intellectual disability or host home for children which are subject to supervision or licensure by the department under Articles IX and X of the Human Services Code.

I don't see how clergy are included in this list of "mandatory reporters" given the provisions of 23 Pa.C.S. § 6319, 23 Pa.C.S. § 6311.1 and 42 Pa.C.S. § 5943 as summarized above.

Anyway, back to the article:

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Shawn Cory Gooden, who police say held leadership positions with the church’s Lebanon ward, was charged in 2022 in Virginia with sexually assaulting a minor in the Woodbridge area and 2023 in Pennsylvania with sexually assaulting a minor in Berks County. Police said the assaults happened between 1997 and 2000, and the victims were between 8 and 12 years old when the assaults occurred.

Okay.  And if found guilty, Mr. Gooden should be punished under the law.  But was he a bishop during the times he allegedly engaged in the misconduct described above?

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Police say Hintze knew about the allegations against Gooden as early as October 2020, while Gooden was a church leader and nearly two years before he was arrested. Gooden was 47 years old when he was first arrested.

Okay.  But how did Hintze know about "the allegations against Gooden?"  Per the article, it appears that police say he "knew about" them via his "church leadership role," which would seem to implicate the Clergy-Penitent Privilege.  So why is this stake president being charged with a felony?

I think this story is a good example of why the Church is smart to have the Bishop's Helpline.  That the police in PA are potentially messing up in their interpretation/understanding/application of the law by charging a stake president with a felony, when the stake president is protected by the clergy-penitent privilege, rather strongly suggests that bishops and stake presidents are in serious need of legal counsel these days.

Thanks,

-Smac

 

 

Edited January 31, 2024 by smac97

[LoudmouthMormon]

Am I understanding the timeline correctly?

Goodin allegedly molested a kid/kids roughly a quarter century ago. 

Stake President Hintze heard allegations about it "as early as October 2020", but didn't report anything. 

Therefore, shame on pres Hintze?

 

If a mandatory reporter hears allegations of past abuse (abuse that isn't happening, abuse that happened years, maybe decades ago), do they need to report it?

Does that mean if they ever make me bishop, I need to scour my memory and report stuff people were claiming 20 years ago?  Or do I just need to report 25 year old stuff if someone brings it up and tells me today?

 

I guess first and foremost, if Goodin did bad things to children 24-27 years ago, here's hoping it's proven and he pays a price.  Not sure why everything's coming up now, but doing bad things to kids in the '90's should disqualify you from being bishop.  And a lawyer.  And a Boy Scout leader. 

 

Just armchair convicting him via what the news articles say, Dude sounds like the dictionary definition of a roving predator.  Lawyer, boy scout leader, church leader.  Pled guilty in Virginia already, now Pennsylvania is dealing with stuff he did there too.  

Edited January 31, 2024 by LoudmouthMormon

[helix]

This is ridiculously Orwellian.

Silence is not inherently evil. Silence is not a crime. Silence is a civil right. A person has a right to silence in this county. Hearing of a 20 year old crime does not put a legal duty on the listener to do more. Religions not reporting others' crimes to a government is not a felony. The Constitution gives the US government zero rights to compel speech in this manner. The US government should not just deputize everyone they want to report every crime they want.

That this stake president is facing 7 years in jail for this is something out of 1984.

Edited January 31, 2024 by helix

[Calm]

56 minutes ago, smac97 said:

I don't see how clergy are included in this list of "mandatory reporters" given the provisions of 23 Pa.C.S. § 6319, 23 Pa.C.S. § 6311.1 and 42 Pa.C.S. § 5943 as summarized above.

A lot of pastors work with youth and could pick up on signs of abuse simply by observing. 

[webbles]

8 hours ago, smac97 said:

Okay.  And if found guilty, Mr. Gooden should be punished under the law.  But was he a bishop during the times he allegedly engaged in the misconduct described above?

Gooden has pleaded guilty to the charges - https://dailyvoice.com/pennsylvania/dauphin/mormon-ex-scout-leader-sentenced-for-raping-children-in-va-new-charges-in-pa/

He apparently has other charges in Pennsylvania that haven't yet been dealt with.  And he was not a bishop during the time.  He appears to have been a bishop around 2020.

[Benjamin McGuire]

15 hours ago, helix said:

Silence is not inherently evil. Silence is not a crime. Silence is a civil right. A person has a right to silence in this county.

Except for the first statement, none of this is actually true.

Silence is only a civil right with regards to your right not to incriminate yourself. It isn't generally a right when you are being asked to incriminate someone else. You can be legally required to testify by a court unless you can legitimately make the claim that your testimony would require you to incriminate yourself. On the extreme end of this, if the court grants you immunity in exchange for your testimony, you can't even make the claim that your testimony might incriminate yourself. So, no, silence is not a civil right in every context. Of course, the state can compel certain types of speech (and does so regularly). For example, you are required to file income tax returns - you cannot successfully argue that since you have a right to silence, you cannot be compelled to file a tax return. It is contextual.

Silence isn't inherently evil. Why? Because speech (or its absence) is always contextual. There is a relatively well known quote attributed to Bonhoeffer: "Silence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act." And this means that silence isn't inherently good either. Speech isn't evil or good - it's what you do with it. And so silence can be good or evil depending on the context. Silence is not always evil. But sometimes it is.

Silence can be a crime. This is the whole point of mandatory reporting (whether you like it or not). But, it isn't just a crime in situations of abuse like this. Silence is not allowed in certain commercial contexts. Selling something with a significant dangerous (life risking) condition that you are aware of without disclosure can be criminal. The absence of important disclosures on a loan application can be fraudulent. We can make a long list of examples of contexts where silence is criminal.

So, there we go.

And let's face it. We are better off as a society for many of the conditions in which we compel speech. It is good that nursing home workers are compelled to disclose abuse and allegations of abuse to those in their care. It is good that we (as a society) require that child abuse be reported to the proper authorities. It is good that we find that there is a problem with people who lie through silence. Let's not forget James 4:17 in the New Testament: "Therefore to him that knoweth to do good, and doeth it not, to him it is sin." I suspect that this is part of the root of the problem. We struggle with the issue of clergymen because we have a problem where different parts of our society value the goods differently. Catholics, for example, believe that the good of keeping confession sacramental outweighs the good of preventing ongoing and future criminal behavior. Non-religious parts of our society believe that the good of preventing the criminal behavior ought to outweigh the clergy-penitent privilege. But however we look at this particular issue, it is a far less difficult decision in our society as a whole to determine the greater good in other contexts - and so we have no problem compelling speech in many of these other contexts. And there is nothing Orwellian about this.

[webbles]

2 hours ago, Benjamin McGuire said:

Catholics, for example, believe that the good of keeping confession sacramental outweighs the good of preventing ongoing and future criminal behavior.

I don't think that is how Catholics (or others who want to keep the priest-penitent privilege) would see it.  I think they believe that keeping the confessional sacramental does prevent ongoing and future criminal behavior.

[pogi]

1 hour ago, webbles said:

I don't think that is how Catholics (or others who want to keep the priest-penitent privilege) would see it.  I think they believe that keeping the confessional sacramental does prevent ongoing and future criminal behavior.

You are right that they probably would argue that point and I think it can make sense in theory, but in practice I don't think there is good evidence for that argument.  On the contrary, there is plenty of evidence to suggest that religions can't be trusted to deal with these things internally and in secrecy.  It seems that change/prevention/protection of children/apologies only became priority due to public exposure of the systemic and historic problem.    Trust has been shattered. 

 

[smac97]

This article on this story has an interesting bit:

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According to police, Gooden and the victim “had disclosed the sexual assault’ to Hintze as early as October 2020. Under Pennsylvania’s Child Protective Services Law, Hintze’s role as a stake president, which includes counseling other church officials, made him a mandated reporter, one of many categories of people — like social workers and school employees — who “are required to report suspected child abuse if they have reasonable cause to suspect that a child is a victim of child abuse,” according to the Pennsylvania Department of Human Services.

Hintze allegedly failed to report the abuse the proper authorities.

"Gooden and the victim 'had disclosed the sexual assault' to Hintze."

I think communications from Gooden regarding the abuse would be axiomatically covered under 42 Pa.C.S. § 5943, but what about communications from the victim?  Here's the statutory language about the privilege: "No {clergyman} ... who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled...to disclose that information in any legal proceeding, trial or investigation before any government unit."

So did the purported victim communicate the allegation of abuse to the stake president "secretly and in confidence?"  Or did the purported victim have an expectation that the Stake President would report the allegation to law enforcement?  I suppose we'll need to wait and see.

Thanks,

-Smac

[Pyreaux]

19 hours ago, Calm said:

A lot of pastors work with youth and could pick up on signs of abuse simply by observing. 

My sister worked for a very short time at some day care. She said she didn't like it, one thing she said was she could tell when children were abused at home, such as the ones that hit other children, etc.

[Teancum]

12 hours ago, webbles said:

He apparently has other charges in Pennsylvania that haven't yet been dealt with.  And he was not a bishop during the time.  He appears to have been a bishop around 2020.

So he was called to be a bishop in 2020 yet he was a child abuser in the past. So much for discernment.

[smac97]

4 hours ago, Benjamin McGuire said:

Except for the first statement, none of this is actually true.

Silence is only a civil right with regards to your right not to incriminate yourself.

Well, not quite.  You are speaking here of the Fifth Amendment.  There is ample case law regarding the First Amendment and "compelled speech."  How this concept applies to mandatory reporting laws is, I think, presently somewhat unsettled.  This 2018 article lays things out fairly well: Do Laws Requiring People to Report Crimes Violate the First Amendment?

Some excerpts:

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Generally speaking, Americans don't have a legal duty to report crimes they witness or learn about. We must generally testify when subpoenaed, but we need not ourselves alert the authorities. But some states have enacted statutes requiring such reporting (at least as to certain serious crimes); still more require certain job categories (such as teachers, whether in public or private schools) to report certain crimes.

Do these laws violate the First Amendment protection against compelled speech?

It's a fair question.

Quote

The Supreme Court has generally said that requiring people to say certain things is presumptively unconstitutional; and it has also held, in some contexts, that "compelled statements of 'fact'" are generally treated the same as "compelled statements of opinion." But requirements to convey facts to the government — in tax returns, census questionnaires, draft registrations, and a vast range of other contexts, federal and state—are so commonplace that it's not clear that the Supreme Court means to cast them all in doubt. (Recall that if something is treated as a presumptively unconstitutional speech compulsion, the government may rebut that presumption only by showing that the compulsion is the least burdensome means of serving a compelling government interest; even if there is a compelling interest in collecting federal and state taxes, conducting the census, and so on, courts have never required a showing that the laws are the least burdensome means.)

This is a solid point.  Even if mandatory reporting laws are presumptively unconstitutional, can the State characterize them as "the least burdensome means of serving a compelling government interest"?  

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And indeed, when mandatory crime reporting laws have been challenged, state courts have upheld them, generally concluding that compelled reporting of facts to the government doesn't really trigger the compelled speech doctrine. See State v. Grover (Minn. 1989) ("The statute [which requires reporting of suspected child abuse] does not compel the dissemination of an 'ideological point of view,' but only mandates the reporting of information—a requirement not altogether dissimilar from that imposed by the Internal Revenue Code."); White v. State (Tex. Ct. App. 2001) (taking the same view).

But in May of this year, the Second Circuit handed down a decision, Burns v. Martuscello, that suggests the laws are unconstitutional after all. In Burns, prison guards placed Burns in involuntary protective custody because he refused to agree to report on future misbehavior by other prisoners. And this penalty, the court held, violated the First Amendment right not to be compelled to speak, even taking into account prisoners' sharply reduced First Amendment rights:

The right not to speak derives largely from the notion, central to our system of government, that the individual's right to "freedom of mind" must be jealously guarded. Preserving the "freedom to think as you will and to speak as you think" is both an inherent good, and an abiding goal of our democracy. In service of this core component of liberty, our jurisprudence recognizes a "sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."

In our view, compelled speech presents a unique affront to personal dignity. The decision to withhold speech depends on views and calculations known only to the individual. And since the individual seeks to refrain from speaking, those motivations are all the more obscure, and privately held. Accordingly, the right not to speak may be abrogated only under carefully policed circumstances. As the Supreme Court has explained, between compelled silence and compelled speech, compelled speech is the more serious incursion on the First Amendment: "It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence." …

The court went on to note that "the protections of the First Amendment are hardly confined to political speech," and concluded that "the speech that we recognize today as protected by the First Amendment fits well within a broader frame of constitutional protection from the government's ability to compel participation in investigative measures."

I wonder if anyone has attempted to challenge the holdings in White and Grover, at least as to mandatory reporting laws, by citing Burns.

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This logic, it seems to me, would likewise forbid the government from threatening otherwise law-abiding citizens with jail time if they refuse to report crimes that they observe. After all, the First Amendment rights of nonprisoners are much more strongly protected than those of prisoners. And both scenarios involve the government "compel[ling] participation in investigative measures," by requiring people to proactively report crimes that they observe.

This is a fair point.

Quote

Now there are indeed some practical differences between the guards' actions in Burns and laws requiring people to report certain crimes. Burns was, as the court pointed out, facing a huge risk of violence if he were known to be working with the guards; citizens required to report crimes (especially crimes such as child abuse) often don't face such a risk (and some laws that require more general reporting have exceptions when reporting creates a strong risk of retaliation). That argument is relevant to the fairness and wisdom of requiring inmates to report, and perhaps even to whether the guards would be liable under a Due Process Clause "state-created danger" theory if Burns had reported and was then attacked by fellow inmates.

But I don't see how this difference can affect the First Amendment analysis. If requiring people to report crimes interferes with "freedom of mind" and "presents a unique affront to personal dignity," that's so regardless of the physical danger stemming from the reporting.

Yep.  Mandatory reporting laws, I think, need more analysis under the First Amendment.

Quote

Now I'm not sure what the right First Amendment answer is here, because I'm still trying to figure out how the First Amendment should play out when it comes to our many obligations to convey facts to the government. But the Burns decision is something that any litigators (and scholars) dealing with duty-to-report laws should consider.

He's quite right here.  

An interesting bit from the "Comments" to the above article:

Quote

In Haynes v. United States, the 7-1 majority ruled that the Fifth Amendment shielded Haynes (a convicted felon) from criminal penalties for failing to register a firearm under the NFA, since registering a firearm would be an open admission to the government that he had committed a crime (felon in possession of a firearm). If the requirement to provide information to a government entity threatens to incriminate the reporter, the reporter can’t be compelled to provide that information. Of course, courts have come to the entirely different conclusion when it comes to taxes and income reporting, because a stable budget supercedes human rights concerns.

Yeah, nobody can get in between the State and taxes.  

4 hours ago, Benjamin McGuire said:

Silence isn't inherently evil. Why? Because speech (or its absence) is always contextual. There is a relatively well known quote attributed to Bonhoeffer: "Silence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act." And this means that silence isn't inherently good either. Speech isn't evil or good - it's what you do with it. And so silence can be good or evil depending on the context. Silence is not always evil. But sometimes it is.

Good points, these.

4 hours ago, Benjamin McGuire said:

And let's face it. We are better off as a society for many of the conditions in which we compel speech. ... It is good that we (as a society) require that child abuse be reported to the proper authorities.

I question that.  There seem to be plenty of adverse consequences arising from mandatory reporting laws, perhaps enough to make them create more problems than they solve.

4 hours ago, Benjamin McGuire said:

It is good that we find that there is a problem with people who lie through silence. Let's not forget James 4:17 in the New Testament: "Therefore to him that knoweth to do good, and doeth it not, to him it is sin." I suspect that this is part of the root of the problem. We struggle with the issue of clergymen because we have a problem where different parts of our society value the goods differently.

Nobody seems to have a problem with the Attorney-Client and Doctor-Patient privileges, which result in "silence" (that is, immunity from punitive compulsion to speak by the State).  I wonder why that is.

4 hours ago, Benjamin McGuire said:

Catholics, for example, believe that the good of keeping confession sacramental outweighs the good of preventing ongoing and future criminal behavior. Non-religious parts of our society believe that the good of preventing the criminal behavior ought to outweigh the clergy-penitent privilege. But however we look at this particular issue, it is a far less difficult decision in our society as a whole to determine the greater good in other contexts - and so we have no problem compelling speech in many of these other contexts. And there is nothing Orwellian about this.

I like what you say about context.  Sometimes compulsory speech might be "Orwellian," and sometimes not.

Thanks,

-Smac

[pogi]

44 minutes ago, smac97 said:

Nobody seems to have a problem with the Attorney-Client and Doctor-Patient privileges, which result in "silence" (that is, immunity from punitive compulsion to speak by the State).  I wonder why that is.

Correct me if I am wrong but aren't there exceptions to these privileges in the case of child abuse?  I know that is the case with doctors and health care providers who are required in all states to report any suspected child abuse. 

[rpn]

22 hours ago, smac97 said:

Gooden would have been 22 to 25 years old, almost certainly too young to have been serving as a bishop

Could very well have been a Branch President (even as a missionary) or bishop of a YSA ward (although I can't see large enough population in Lebanon for the latter).

Edited February 1, 2024 by rpn

[smac97]

21 minutes ago, pogi said:

Quote

Nobody seems to have a problem with the Attorney-Client and Doctor-Patient privileges, which result in "silence" (that is, immunity from punitive compulsion to speak by the State).  I wonder why that is.

Correct me if I am wrong but aren't there exceptions to these privileges in the case of child abuse? 

The form and scope of the privilege varies a lot by jurisdiction, by statutory language, and other factors.

The Attorney-Client Privilege is perhaps the broadest and most potent one.  For example, in Utah, it applies to any information an attorney obtains which "arises from the representation of a client."  So if I as an attorney witness my neighbor committing abuse, I am obligated to report it.  But if I come by the information while I am acting as an attorney representing a client, I cannot (or, rather, I am not obligated to).  Rule 1.6 of the Utah Rules of Professional Conduct gives the attorney discretion to report or not ("A lawyer may reveal information...").

The same statute exempts clergy in Utah where the clergy A) receives a confession, B) "while functioning in the ministerial capacity," C) "the perpetrator made the confession directly to the member of the clergy," and D) "the member of the clergy is, under canon law or church doctrine or practice, bound to maintain the confidentiality of the confession."  If the clergy receives the information about abuse from any other source, "{he} is required to report the information even if the member of the clergy also received information about the abuse or neglect from the confession of the perpetrator."

As you can see, this is a far narrower privilege than the one granted to attorneys.  And yet it gets all sorts of guff.

Healthcare folks have all sorts of stuff to deal with (see, e.g., here, here, here).

Thanks,

-Smac

[rpn]

22 hours ago, smac97 said:

IOW, if the Stake President learned of the purported abuse from some way other than a confidential communication, he is a "mandatory reporter."

But aren't bishops/branch presidents the only ones that have ecclesiastical authority in our faith to hear confessions?   If he heard it from a bishop (which he absolutely might as they discuss the need for membership councils), then isn't this a problem in our membership council practice? 

[helix]

6 hours ago, Benjamin McGuire said:

Silence can be a crime.

Show me where in the US Constitution the government grants itself the right to jail people for not reporting crimes overheard while walking down the street. Show me where in the First Amendment the government gives itself the right to jail a Catholic priest for taking a vow of silence and then overhears a confession in church.

This is black and white stuff. Child abuse is this wedge that persuades society to throw out the window long accepted freedoms, civil rights, and Constitutionality, in hopes we can satisfy getting our pound of flesh and serve the "greater good", as you put it.

Edited February 1, 2024 by helix

[helix]

1 hour ago, pogi said:

Correct me if I am wrong but aren't there exceptions to these privileges in the case of child abuse?

It's a hodge podge across all 50 states.

Some make it voluntary

Many make it mandatory for certain professions

Some regulate churches and state clergy must report to the government, but give carve outs for confessions

Some say that even confessions aren't an exception, so they knowingly will throw a Catholic priest in jail for holding to his religious vow of silence.

Some states make every person a mandatory reporter. So you are forced to snitch on your neighbor if he spanked his child and you overheard it while walking down your street.

And some states even explicitly state no privilege prevents reporting. So even attorney-client privilege is gone. So if you worry your past action was a gray area, and you want to consult your lawyer to know more, your own lawyer would be forced to report you to the state and possibly testify against you in court.

Edited February 1, 2024 by helix

[helix]

1 hour ago, smac97 said:

There seem to be plenty of adverse consequences arising from mandatory reporting laws, perhaps enough to make them create more problems than they solve.

And you aren't alone in thinking this. Many academic researchers are coming to the same conclusion. From researcher Mical Raz, MD, PhD who has delved deep into this issue “Reporting has been our one response to concerns about child abuse,” said Dr. Mical Raz, a physician and professor of history at the University of Rochester who has studied the impact of mandatory child abuse reporting. “Now we have quite a bit of data that shows that more reporting doesn’t result in better identification of children at risk and is not associated with better outcomes for children, and in some cases may cause harm to families and communities."

Also: "Of those abused children who are identified by mandatory reports? Does the intervention make their situations better? Another study asked this question.  Of abuse survivors, only 18% said reporting made things better, while 62% said it made things worse. That includes 3% who said it made things much better and 50% who said it made things much worse."

Edited February 1, 2024 by helix

[smac97]

16 minutes ago, rpn said:

But aren't bishops/branch presidents the only ones that have ecclesiastical authority in our faith to hear confessions? 

No, I think SPs are covered.  

16 minutes ago, rpn said:

If he heard it from a bishop (which he absolutely might as they discuss the need for membership councils), then isn't this a problem in our membership council practice? 

The Attorney-Client Privilege extends to people who work in the office and have access to the confidential communications.  I think the same principle would apply to stake presidents, bishopric members, high council members, stake clerks, etc.  I could be wrong, tho.

Thanks,

-Smac

[Calm]

2 hours ago, smac97 said:

There seem to be plenty of adverse consequences arising from mandatory reporting laws, perhaps enough to make them create more problems than they solve.

How many are because there is not enough funding though so that there are sufficient well trained and decent social workers given enough time for responding to reports as well as enough quality foster care placements? …iow, how many adverse consequences are not a problem with the laws, but problems in other areas that mess up enforcement.

Edited February 1, 2024 by Calm

[helix]

1 hour ago, smac97 said:

Yeah, nobody can get in between the State and taxes.  

Of course. It's important to note that the government explicitly gives itself some rights relative to speech. Compelling testimony in the courtroom (if the Fifth isn't/can't be invoked), taxes, census, and regulating business are a few examples.

What it doesn't give, and what the Supreme Court has routinely ruled against, is compelling speech and action in all other day-to-day activities of life. Especially religious speech and action.

And this is for several very good reasons. One example is that the Constitution has no provision in which the government gives itself the right to force deputize all adults. Because if it granted itself that right, then a government could enable itself to require reporting an expansive list of felonies and misdemeanors. And history demonstrates why that should never be considered.

[helix]

18 minutes ago, smac97 said:

No, I think SPs are covered. 

I'm pretty sure (but could be wrong), that in the Arizona case it applied to anyone in a disciplinary/membership council. That makes our church a bit weird because don't just have one clergy running a congregation.

[smac97]

3 minutes ago, Calm said:

Quote

There seem to be plenty of adverse consequences arising from mandatory reporting laws, perhaps enough to make them create more problems than they solve.

How many are because there is not enough funding though so that there are sufficient well trained and decent social workers given enough time for responding to reports? …iow, how many adverse consequences are not a problem with the laws, but problems in other areas that mess up enforcement.

It's hard to say, I think.  Mandatory reporting laws inflate reports, which either A) wastes valuable resources, or else B) requires spiraling increases in funding, or C) both.

I previously summarized my thoughts on this issue here:

Quote

The vast majority of mandatory reporters are not percipient witnesses to abuse.  Do we really want everyone everywhere reporting, for fear of severe legal repercussions, what usually amounts to guesswork and suspicion?

Per this article, 

• Expanding "mandatory reporting" laws results in "flooded" reporting hotlines, "excessive waiting times, unanswered calls, spurious calls, and unnecessary reports, leading to the inability to pursue many of these reports."
• There is no indication or competent evidence that expanding mandatory reporting improves detection of abuse, and some evidence that it detracts from such efforts.
• Expanding mandatory reporting is politically easy (what politician or child welfare expert wants to oppose it?), yet there are no "useful indicators of the efficacy of this approach, and no data exist to demonstrate that incremental increases in reporting have contributed to child safety."
• Expanding mandatory reporting by the lay public "is more likely to result in spurious reports."
• Expanding mandatory reporting "depletes resources that are already spread thin and diverts attention away from children who need it the most."
• Expanding mandatory reporting will almost certainly disproportionately, and adversely, affect lower-income families.
• Sometimes the cure (getting CPS involved, which can be both heavy-handed and callously indifferent at the same time) can be worse that the disease.
• Inquiries about abuse can themselves be traumatic for kids.
• "Fear of reporting may prevent families from seeking help, whereas assurance of confidentiality has been shown to increase help-seeking behaviors."

I think we need to give these things some serious consideration.  

We also need to give the constitutional implications some real consideration.
...
{A}bsent some sort of sure-fire way to identify pedophiles, expanding mandatory reporting by people with no training and no percipient observations (again, most reporters merely suspect abuse) will lead to a lot of wasted, spurious reports.  Not only do these deplete already limited investigative resources, they are incredibly damaging to the lives, reputations, relationships, livelihoods, etc. of people who are falsely accused (or overcharged).

Thanks,

-Smac

[Calm]

From Smac’s link…

Quote

According to police, Gooden and the victim “had disclosed the sexual assault’ to Hintze as early as October 2020.Under Pennsylvania’s Child Protective Services Law, Hintze’s role as a stake president, which includes counseling other church officials, made him a mandated reporter, one of many categories of people — like social workers and school employees — who “are required to report suspected child abuse if they have reasonable cause to suspect that a child is a victim of child abuse,” 

This doesn’t make sense to me since the victim in this case is no longer a child.  The victim would have been an adult by 2020 if it occurred in the 90s.  If there has been no indications there were other victims, why would it be mandatory?

Edited February 1, 2024 by Calm