The Church and Child Abuse: An Experimental Argument

[yellowstone123]

Note: In 1977 (original version), Utah had a universal mandatory reporter law, with no exception for clergy. The Priest-Penitent privilege law barred only testimony, not disclosure. When was this changed? https://scholarsarchive.BYU.edu/cgi/vie ... 20abuse%22

Have you gone directly to the statue? Maybe you can see the change from any person to clergy exempt there.

There are other issues in testifying. For example Social Workers who, with police detained and placed a child in shelter care for physical abuse, read in criminal court months months later that their records were confidential and the minors right to privacy outweighs the courts right to know and request that they not be ordered to testify in court but if ordered to testify that it be “in camera.” The Judge was real nice and explained the issues and ordered the cps worker to testify. They then brought the jury back in. This was the west coast.

[Dr. Shades]

I think this is an example of the cover-up being worse (for the church, not the children!) than the crime. Here's my idea.

DEAR LDS CHURCH LEADERSHIP:

Do you want to make all these lawsuits go away? Do you want your church to be free of all this controversy? If so, then all you have to do is make one tiny tweak:

On the outside of every bishop's office, post a sign that says, "If you confess to committing any form of physical or sexual abuse against another, or if you report any form of physical or sexual abuse committed against yourself or another, the bishop MUST and WILL report it to the police immediately."

. . . then instruct the bishops to actually follow through.

Sure, Res Ipsa, that will be sacrificing their erstwhile religious freedom of priest-penitent confidentiality, but the church would be WILLINGLY doing this instead of the government forcing it to do so, so no legal issues. Sure, the number of confessions would dry up to near-zero, but the lawsuits and million-dollar payouts would as well. . . a huge savings for a tiny investment, no? Also, you church leaders are afraid of making your church look bad by admitting you have offenders in it--hence all your cover-ups so far--but your church would actually look BETTER if the world sees you voluntarily hanging those offenders out to dry. To simplify:

Secrecy = lawsuits.
No secrecy = no lawsuits.

LDS Church leadership, you've chosen the former so far. It's now your own fault if you fail to choose the latter.

[Res Ipsa]

Note: In 1977 (original version), Utah had a universal mandatory reporter law, with no exception for clergy. The Priest-Penitent privilege law barred only testimony, not disclosure. When was this changed? https://scholarsarchive.BYU.edu/cgi/vie ... 20abuse%22

Have you gone directly to the statue? Maybe you can see the change from any person to clergy exempt there.

Yes. To get at the version of the codes I need to look at, I need to get an account. That's the next step.

[Res Ipsa]

I think this is an example of the cover-up being worse (for the church, not the children!) than the crime. Here's my idea.

DEAR LDS CHURCH LEADERSHIP:

Do you want to make all these lawsuits go away? Do you want your church to be free of all this controversy? If so, then all you have to do is make one tiny tweak:

On the outside of every bishop's office, post a sign that says, "If you confess to committing any form of physical or sexual abuse against another, or if you report any form of physical or sexual abuse committed against yourself or another, the bishop MUST and WILL report it to the police immediately."

. . . then instruct the bishops to actually follow through.

Sure, Res Ipsa, that will be sacrificing their erstwhile religious freedom of priest-penitent confidentiality, but the church would be WILLINGLY doing this instead of the government forcing it to do so, so no legal issues. Sure, the number of confessions would dry up to near-zero, but the lawsuits and million-dollar payouts would as well. . . a huge savings for a tiny investment, no? Also, you church leaders are afraid of making your church look bad by admitting you have offenders in it--hence all your cover-ups so far--but your church would actually look BETTER if the world sees you voluntarily hanging those offenders out to dry. To simplify:

Secrecy = lawsuits.
No secrecy = no lawsuits.

LDS Church leadership, you've chosen the former so far. It's now your own fault if you fail to choose the latter.

Boss, that's where I'll end up. But, part of my argument will be that the privilege will still be intact.

[Res Ipsa]

Have you gone directly to the statue? Maybe you can see the change from any person to clergy exempt there.

There are other issues in testifying. For example Social Workers who, with police detained and placed a child in shelter care for physical abuse, read in criminal court months months later that their records were confidential and the minors right to privacy outweighs the courts right to know and request that they not be ordered to testify in court but if ordered to testify that it be “in camera.” The Judge was real nice and explained the issues and ordered the cps worker to testify. They then brought the jury back in. This was the west coast.

Thanks. I'll try to find that.

[Dr. Shades]

Boss, that's where I'll end up. But, part of my argument will be that the privilege will still be intact.

You and I both know that if the privilege remains intact, then the status quo will continue unabated.

[Res Ipsa]

Boss, that's where I'll end up. But, part of my argument will be that the privilege will still be intact.

You and I both know that if the privilege remains intact, then the status quo will continue unabated.

I'm going to label that Shades counter 1. The response gets into the technical details of what the privilege actually is and what it means.

[Marcus]

One thing that's bothered me is the idea of confidentiality in the LDS version of clergy-penitent relationship. Bishops share 'confidential' information with many others, and unless they never name names, they are also de facto sharing confessions with the social worker on the hotline. How does the LDS way of sharing information fall under the legal definition of confidential confessions to clergy when a court is considering whether the privilege holds?

The closest situation I can think of, If I recall correctly, is the protection afforded to confessions made in AA.

I ask because the Catholic definition of this is pretty clear:

...According to Roman Catholic canon law, "The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason." The confessor is always an ordained priest, because in the Catholic Church only ordained priests can absolve sins; lay confession is not recognized. Any person who overhears a confession is likewise bound by the seal.[17]

Priests may not reveal what they have learned during confession to anyone...
Wiki

But I don't know how courts handle it--is it not a problem that a bishop may tell many people a confession, but then still have the LDS church argue in court that he is not obligated to report it to the police due to confidentiality?

Or more directly, Does a bishop's disclosure of a confession to other people matter in terms of determining whether he has an obligation to report?

When you say it that way, it does point out that the penitent's right to confidentiality should not be damaged by actions they can't control (i.e. sharing with ward council), but, wouldn't knowing that bishops do that be known by those who confess?

[Res Ipsa]

One thing that's bothered me is the idea of confidentiality in the LDS version of clergy-penitent relationship. Bishops share 'confidential' information with many others, and unless they never name names, they are also de facto sharing confessions with the social worker on the hotline. How does the LDS way of sharing information fall under the legal definition of confidential confessions to clergy when a court is considering whether the privilege holds?

The closest situation I can think of, If I recall correctly, is the protection afforded to confessions made in AA.

I ask because the Catholic definition of this is pretty clear:

...According to Roman Catholic canon law, "The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason." The confessor is always an ordained priest, because in the Catholic Church only ordained priests can absolve sins; lay confession is not recognized. Any person who overhears a confession is likewise bound by the seal.[17]

Priests may not reveal what they have learned during confession to anyone...
Wiki

But I don't know how courts handle it--is it not a problem that a bishop may tell many people a confession, but then still have the LDS church argue in court that he is not obligated to report it to the police due to confidentiality?

Or more directly, Does a bishop's disclosure of a confession to other people matter in terms of determining whether he has an obligation to report?

When you say it that way, it does point out that the penitent's right to confidentiality should not be damaged by actions they can't control (i.e. sharing with ward council), but, wouldn't knowing that bishops do that be known by those who confess?

Those are great questions, Marcus. Your question is right at the intersection of several legal issues that I'm still working my way through to make sure I understand them correctly. In the most general terms, the issues are:

1. Breach of contract or promise to keep designated information confidential. This is generally governed by the common law of contracts, which means it is created by judges.

2. The Priest-Penitent privilege, which generally prevents confessions to an ecclesiastical authority from being used as evidence in a legal proceeding. Although arguments are made that the privilege has First Amendment implications, it is determined by state statue.

3. The Church Authority Doctrine, which is a judicial abstention doctrine. What it means in practice is that a court will not define a church's doctrine or adjudicate matters of church governance. This is wholly created by judges.

4. Mandatory Reporting Laws. These are state laws, which were adopted because of a requirement in federal law. Federal law doesn't specify the type of law that must be enacted, so they vary from state to state. Some specify classes of persons that are mandatory reporters (Washington, e.g.). Others define everyone as mandatory reporters, with specific exceptions (Utah, e.g.). Some include an exception that roughly parallels the priest-penitent privilege. I think there are some that do not -- that's something I haver to pin down.

You're absolutely correct that applying the priest-penitent privilege is crystal clear when it comes to Catholicism. It's much less clear when applied to Mormonism. Basically, the courts generally apply the PPP both to communications in the nature of a confession and the use of those communications in church discipline. Under the Church Authority doctrine, the church will get to tell the court what those communications are and who in the chain is part of the disciplinary procedure. But, a key part of the privilege is that only the parishioner can waive the privilege. So, even if the bishop reports the content of the confession to someone outside of the confidential disciplinary process, the accused abuser can invoke the privilege to exclude evidence of the confessional statement from his trial.

When it comes to mandatory reporter statutes, I've not seen one in which the act of disclosure changes someone's status from a non-reporter to a mandatory reporter. If clergy aren't in the class of mandatory reporter, the statute simple doesn't apply. And if they fall within an exception to a universal mandatory reporter statute, the law doesn't apply. Nothing in the laws I've seen makes anything contingent on keeping the information confidential.

Once one cuts through the complexity, there is no law that requires a bishop to refrain from reporting child abuse. The priest-penitent privilege doesn't forbid disclosure -- it simply prevents evidence of the confession from being introduced in a legal proceeding. Mandatory reporting statutes don't forbid disclosure -- they simply require specified parties to report. The only legal downside of reporting abuse is a suit for breach of promise/contract by the alleged abuser. And the church has 100% control over the terms of the promise it makes to its members.

[Marcus]

...The priest-penitent privilege doesn't forbid disclosure -- it simply prevents evidence of the confession from being introduced in a legal proceeding...

To make sure I understand this, let me make an example.
1) a bishop discloses abuse to authorities.
2) bishop's report is used to acquire warrants
3) on the basis of warrants, evidence is collected and used to charge a person
4) in legal proceedings, the evidence collected in 3 is sufficient to find person guilty.
5) no reference is made to bishop's disclosure (?is this possible)

I apologize if I have not used the terms correctly, hopefully you can see my question. Does my example shown in 1-5 constitute a case where disclosure can be made without the confession being introduced in a legal proceeding?