Feh. I’ve been thrown out of better clubs.
Grumman, I said *the court *is not omniscient. So, before the court he has a right to be competently represented. If you are a lawyer in private practice and he admits to you that he committed the crime, you do not have to be the one to defend him, do you?
An important consideration. Regular ecclesiastical communication is NOT subject to a sacramental seal.
Thing is, most of the well-known scandal is about the institutional leadership protecting child abusers within the institutional structure, and no breaking of the confessional seal was required to denounce the abuse. It is not about rank-and-file parishioners getting away with misconduct just by mentioning it at Confession.
I don’t think the constitutional violation relies upon the priest-penitent privilege. I think it would fall under the free exercise clause. To pass such a law, the state would be effectively overruling a major tenet of the Catholic faith. To do that, I think they’ve got to pass strict scrutiny, and I don’t think they can pass that test. I could, of course, be wrong.
From a practical point of view, I don’t see politicians being willing to write off the entire Catholic vote by sponsoring such a bill.
The article in the OP is about a proposal to create an absolute right to disclose pedophile suspicions or allegations here in Ireland, with no exemptions for anyone, and specifically no exemptions for Catholic priests.
Ireland is nominally one of the most Catholic countries in the world :- we are, however, pretty tired of the Catholic Church covering up child abuse. Opinion polls show overwhelming support for such a measure, and I have little doubt it will be enacted.
It is one thing for a priest not to disclose the confession of Joe Six Pack.
It is another thing for the confessional to be used as a systematic tool among priests to to protect and cover up each others’ crimes.
I don’t know how one would craft a law distinguishing between the two and outlawing the latter, but I would like to see some attempts made.
If it can’t be done, priests should be held to exactly the same standards that mental health professionals in their jurisdiction are. And IMO, that’s being pretty generous to priests, who are… oh, never mind Don’t get me going on priests.
My comments, rather obviously, are only relating to the prospects of such a ridiculous measure passing in the U.S., considering our First Amendment protections and present political environment.
Definitely not a nitpick: It’s not a right to disclose; it’s an obligation to disclose.
Also not a nitpick: People aren’t to be required to disclose “suspicions or allegations”; the disclosure obligation will apply to a person who himself “knows or believes” that a particular kind of offence (not limited to sexual offences, incidentally) has been committed against a child or a vulnerable adult. So your own state of mind is crucial; if somebody else tells you of an offence, but you don’t believe him, you have no reporting obligation.
And also not a nitpick: The obligation is not absolute, and it’s not right to say that there are no exceptions. First, children, vulernable adults and people who have themselves been victim of the offence are all excepted. Seocndly, failure to disclose is only an to be offence if you fail “without reasonable excuse”.
There’s no exhaustive statement as to what a “reasonable excuse” would be. There is a statement that it may include circumstances where the victim of the offence does not want it disclosed. But, beyond that, it’s going to be up to the courts to decide what a “reasonable excuse” would be, in the light of constitutional principles.
So, there is no explicit exception to cover legal professional privilege; it will be left up to the courts to rule (as they certainly will) that constitutional requirements relevant to the criminal justice process mean that legal professional privilege will be a “reasonable excuse”.
And, since there is no mention of priests, confession or anything vaguely churchy, it will also be left up to the courts to rule whether the circumstance of confessing under the confidentiality commitment associated with sacramental reconciliation also amounts to a “reasonable excuse”. This won’t happen until a priest is prosecuted for failing to disclose something confessed to him by a perpetrator, and it is very hard to see how the authorities will ever know of such a failure, or how they would assemble the evidence necessary for such a prosecution.
I am the last person to defend the train wreck which the Irish Catholic Church has made of the sex abuse crisis, but colour me unimpressed with this proposal.
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It doesn’t seem to me to do as advertised, i.e. impose a clear obligation on a priest to disclose abuse confessed to him by a perpetrator;
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There is precisely zero evidence, in any case, that non-disclosure of confessed abuse has had anything to do with the problem in Ireland;
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It seems to me to be in practice unenforceable in cases of sacramentally confessed abuse.
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It calls into question all other privileges - lawyers, therapists. We need a series of prosecutions, and convictions, and appeal on the “reasonable excuse” issue, in order to get some useful caselaw on what is a reasonable excuse, and that’s not going to happen in a hurry.
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It deprives a child or vulnerable adult victim of abuse of the assurance that there is any place or relationship within which they can discuss their experience in confidence.
This looks to me like a knee-jerk and populist reaction which is an alternative to well-thought out, well directed, practicable and effective legislation to address a problem that clearly needs to be addressed.
Pardon my cynicism, but that’s a piss-poor reason to let priests off the hook for withholding information of a crime from the the authorities. I can understand the attorney-client privelege, for without it, it would be difficult to guarantee a spirited defense – or whatever the term is.
But what the fuck is a priest going do or not do for an offender? Absolve him in the name of Christ? That doesn’t do shit for people he’s harmed. What is absolution anyway, but merely assuaging the guilt of the offender. In other words … therapy.
“There there, Mr. Penitent Child Pornographer, God fogives you. I hope you feel better now. So, you know, don’t do that anymore.”
What a load of shit.
This wouldn’t merely be an excommunicated Catholic, but an excommunicated priest. For starters he would lose his job and career.
Requiring priests to break the secret of confession would be similar to requiring lawyers to break their own confidentiality, as in both cases it’s such a basic tenet of the profession that breaking it leads to expulsion from it.
So say you.
Fortunately, you are not in charge of the laws of any state in the union, or of federal law. And more fortunately for the spiritual well-being of the majority of the nation, the priest-penitent privilege exists and protects confidential communications to a priest, minister, rabbi, imam, or other accredited religious figure in the vast majority of states.
I think there are good arguments that this does do something for the people he’s harmed, by encouraging him to publicly confess, as I pointed out earlier. Your cogent rebuttal to this point appears to center around ignoring it.
But perhaps your next spirited response will be to deny it.
That’s fine. You understand nothing of the concept, and so naturally will deny it. As I say, since you have essentially zero influence on the state of the law, and the law doesn’t share your ignorance on this topic, I’m happy with things as they stand.
No, I think villa has a point here. The priest-penitent privilege is a creature of statute, not common law, and I can’t find a single instance where it’s been upheld or interpreted in light of First Amendment principles. For example, the holder of the privilege is typically the penitent, but in some states it’s the priest; a First Amendment grounding would at least suggest it should consistently be the priest, or in any event that it should be uniform.
Fuck this. I stand by my sentiment. I don’t give a shit about the Catholic church thinking that they’re more important that the general population. Spiritual well-being of the nation? Give me a break.
The ‘preist-penitent privelege’ is a horseshit concept that lets priests off the hook, as other therapists are not, when their loyal, tithe-paying, lemmings admit crimes to them.
You can wrap spirituality around it as much as you like – it’s a disservice, if not an outright slap in the face, to victims of poor, poor penitent Catholic assholes.
And how about the Episcopal priests, ministers, rabbis, imams, and other accredited religious figures? Are they also slaps in the face, or do you simply hate Catholics?
It seems likely, since your vitriol is Catholic specific, but the law protects confidential communications in religious contexts across the board.
Laws that affect religion don’t necessarily have to pass strict scrutiny. Employment Division v. Smith is clear on that. It’s going to come down to whether the law is one of general application or not. Hence a law removing the privilege is (I think) definitively NOT unconstitutional under FE. That’s because it is removing a bonus religion receives, rather than placing an extra burden on religion. Similarly not giving a religious exemption to churches to give alcohol to under-21s in the form of communion wine would not be unconstitutional, or indeed a law refusing to give an exemption to a church to permit plural marriage.
Now, when we are talking about a law mandating reporting, as I mentioned, it is tougher. But such a law isn’t a CLEAR violation of the Constitution. Depending on how it is written, it could go either way. If defending such a law, I would argue that it isn’t placing a special burden on priests, it is extending an existing burden on a certain group (including doctors, social workers etc). As such it may well pass the Smith test.
Now that is a very different question. I think such a law would have major political implications - religion is very much a third rail. I’ve heard many people argue, for example, that his opinion in Smith cost Scalia the chance of becoming Chief. I don’t think a mandatory reporting law is as damaging as you maintain, though the Catholic Church (and other churches - not trying to Catholic bash here) would certainly attempt to portray it that way. The overwhelming majority of Catholics I have spoken to are angry and ashamed at the way the hierarchy has handled the child abuse scandal.
Absolutely. Same friggin’ boat. Although, I might add since it seems to be open season on assumptions, that your blind loyalty to Catholicism prevents you from seeing things as they are. The only reason priests (or any clergy for that matter) gets the benefit of this confidentiality bullshit, is because of the fiction that God is sitting up there okaying the whole thing.
Lawyers get a pass from me because it is their job to address the legal ramifications of the crimes at issue.
Religion … whatever religion … is in the business of making their followers feel good. And I don’t care about that.
If you’re wondering why I was addressing Catholicism in specific, I’d remind you to take a look at the thread title.
I would argue that placing an affirmative duty on a priest to report knowledge of a crime received in his role as confessor (not sure that’s the right word, but you know what I mean) does constitute placing an extra burden on religion. As Bricker mentioned above, a lay citizen has no such duty. Essentially, such a law would prevent a priest from freely exercising one of the basic tenets of his faith–that the privacy of the confessional is inviolate.
Fortunately, I doubt we’ll ever see a SCOTUS opinion on point, as I see no chance of such a measure becoming law in this country.
Some lay citizens (as I mentioned) do have such an affirmative duty, though. Including doctors, social workers and I believe teachers. My argument defending such a law would be that it is simply adding another group to an existing burden - the purpose isn’t because they are religious, it is because they, like those in the group already, are in a position where they are more likely to be in possession of such information.
You’re wrong.
A therapist only has a duty to disclose ongoing crimes or potential future crimes, not completed crimes in the past.
Washington state’s law on the matter came up first, I will use it:
I have also checked 8 other states so far and they all have the same requirements. While there may be states that do not follow this pattern, I am not going to check all fifty, in light of the fact that so far all have this privilege.
If a patient sees their therapist in a professional capacity and says, “I killed John Smith 25 years ago,” the therapist has to keep quiet. If, on the other hand, the patient tells the therapist, " I am so mad at John Smith, I am going to go kill him as soon as I leave," the therapist may report this to police.
here the privilege it is described from the therapist’s point of view, the same principle is found.
I note that, without saying his source, this Ph.D seems to believe that therapist/patient privilege comes from the common law. I don’t know whether this is true or not.
An attorney also has a duty to report a threatened crime in the future in order to prevent it. At least thirteen states have modeled their therapist/patient privilege exactly after attorney client privilege.
Sine the article linked to in the Op pertains to Australia, it is probably worth pointing out that in all Australian jusrisdictions the “average schlub” is indeed required to report a crime.
Failing to report a serious crime such as rape or sexual abuse is a crime in itself under various “misprision of felony” and “falure to report a crime” laws. Exactly what you need to do varies with jurisdiction but, in NSW at least, you can be convicted simply for knowing that a crime has been committed and failing to notify the police.
And you’d be a worthy opponent if we were to litigate the issue. Think it could go either way.