If the answer is, “Because he’s a religious counselor, and learned the information in the course of a private, privileged conversation,” then surely you can understand that the reason he learned it is because the abuser shared it voluntarily, confident of secrecy.
And if that framework changes – if the religious counselor is permitted to breach the confidence – then why would the abuser share it in the first place?
No need of the condescending tone Bricker, I’m not four.
Confident of a secrecy that is absolute to a degree not seen in any other area? I do not think that is acceptable. A religious body should not be given that leeway when we don’t give it in any other area. I believe it is permissible even for a lawyer to disclose if his client is going to commit a crime, why not also for a priest?
The question of whether it gets shared in the first place is irrelevant.
But we actually do give more leeway to others than I think you realize. First, you’ve confused me a bit. Are you talking about 1) the priest/minister/rabbi reporting that the penitent is planning to commit a future crime or 2) about the communication being privileged and therefore the priest/minister/rabbi not testifying about the plans at the trial after the crime occurs?
If you are talking about the first situation, lots of people are not compelled to report crimes, even horrific, ongoing child abuse. I am a mandated reporter in my state, so you would think that I am required to report child abuse or neglect. And I am - but only in situations that come before me in my professional role. If my neighbor tells me he is abusing a child or children, I have no obligation to report it. *Your state may be different- but lots of states are like mine, where there is no general duty to report any crime.
If you are talking about the second situation, where the crime has already occurred and you are looking for someone to testify at the trial , there are other privileged relationships. There’s the spousal communications privilege which means that one spouse cannot be forced to testify against the other about marital communications (and in some cases means the spouse cannot testify even if he or she wants to ). There are exceptions, but those exceptions generally apply to cases where one spouse has committed a crime against the other spouse or against a child of the other spouse or where the two spouses acted jointly in the commission of a crime. Therefore, if my husband told me he had abused some other child (not mine), he might be able to prevent me from testifying even if I want to. There’s doctor -patient privilege and therapist -client privilege. Some places have parent-child privilege and some even have accountant-client privilege. Sure, they all have exceptions- but so does the priest- penitent privilege. It doesn’t simply cover any conversation a person might have with a priest/minister/rabbi.
Of course I would- but what I would do is an entirely different question from what the law requires me to do.
This has been bugging me, so I’m going to ask- What was the point of wanting the priest to testify about the confession? I means presumably, the girl testified about what she said, and if the priest refuses to testify about the confession, then her testimony is the only testimony about what was said.
I don’t know how old you are but I see that you still aren’t seeing the point.
If “Bad Communication X,” is subject to an exception, and the priest can reveal it, then the penitent won’t convey “Bad Communication X.” So the policy won’t result in the disclosure of X, regardless of whether it’s an exception or not.
You also don’t quite correctly summarize the crime/fraud exception for lawyers, but we’ll leave that for another time to avoid muddying the issue.
The reason: the suit alleged that the priest negligently failed to report the abuse to law enforcement.
The defense argued that the penitent’s testimony was not relevant, because the priest was not a mandated reporter, so he couldn’t breach a duty to report that didn’t exist. And the courts agreed: a priest who learns information under the seal of confession is not a mandated reporter.
In other words, her testimony would be offered for the purpose of proving she communicated the abuse to him. But since he can’t be sued for failing to report it, there’s no issue of fact that her testimony helps to make clear.
It is a courtroom situation, and the hearsay doctrine applies.
But the hearsay doctrine’s application is: this testimony is not hearsay.
I know it sounds like it would be hearsay. But “hearsay” can be a tricky concept. It doesn’t just mean testimony about a statement that was originally uttered outside court.
“Hearsay” means that there was a statement made by someone outside court, and now someone wants to testify in court about what was said, AND the reason they want to do that is so the jury will believe that the out of court statement is the truth.
It’s the second part, past the “…AND…” that gets confusing. In this case, someone wants to testify about a statement, but not to prove that the statement’s claims were true. Instead, they just want to prove that the statement was actually said.
In fact, the court INITIALLY ruled as I described above. The Louisiana Supreme Court ultimately reversed, saying both that the priest could not be compelled to testify, and that since there was no duty to breach, the girl could not testify either.
My age is irrelevant as to whether I get the point or not. I suspect I’m older than you.
And you don’t need to repeat yourself, I understood your point the first time. So by your logic we should not expect to see any confessions by anyone to any third party where there is not an absolute guarantee of secrecy under all conditions?
It is enough to say that a lawyer and a doctor and a psychiatrist and a counsellor etc. are all able to report things said to them in confidence under certain circumstances when they relate to serious crime. I am challenging the unthinking exception that priests should not be expected to do the same. i.e. that there is something special about the discussion between priest and confessor that is not present in any other communication.
The priest should be free to do either and should be compelled to do either when the case is serious enough.
Not in the UK.
All the above have exceptions, if you are saying that priest-penitent privilege also has exceptions then great, that’s exactly what I’m saying should happen. It should be on exactly the same level as those others you mention and subject to the same expectation and be compelled in the same way to report under certain circumstances.
What exceptions does that priest-penitent relationship have? My understanding was that the catholic church sees it as absolute.
Quite, if you didn’t report it you’d be terrible human being, if a priest doesn’t report something similar then they too are a terrible human being.
You keep claiming you do, and then proving you don’t almost immediately:
No. By my logic, though, we’d expect disclosures made with the expectation that they are legally privileged to stop when the legal privilege was removed.
Challenge away. Each of those privileges exists for a specific public policy reason, and its exceptions are tailored to support that reason. There IS something special about the discussion between priest and penitent, and that sui generis aspect is recognized at law.
I get that you don’t like the current state of affairs in this regard. That’s a shame for you, but a benefit for society.
I have a question for Bricker (from a Protestant to a Catholic) that may be slightly off-topic. Aside from legalities, what is the Church’s Biblical rationale for the seal of confession? I’m not talking about the act of confession itself, because even though I disagree that it’s required, it’s clear that there several places where it’s said that confessing sins to others can be a good thing.
But secrecy? I’ve seen the question asked many times in various places, but I have never seen an answer that showed any Biblical basis. It’s always “well, it’s obvious that…” or a quote from canon law. For instance, this article on the subject goes on for over 20 printed pages worth, and has absolutely zero scripture references.
But try as I might, I can see nothing in the Old or New Testament that even allows, let alone requires clergy to keep confessions that could harm others secret.
Okay, thanks, I think I’ve got a handle on it. My confusion was in thinking the girl’s testimony would have been against the man who allegedly molested her.
I still have a bad taste in my mouth about the seal of the confessional being a shield to the benefit of a third party who didn’t confess to nothin’. I would be in favor of relaxing the law’s deference to the seal to the extent that if a priest hears a confession of having been victimized, he is a mandatory reporter, just as Sister Mary Catherine would be if the little girl had come to her instead.
On a bit of a tangent, what do the rules of evidence have to say about the admissibility of testimony from a confessor who has chosen to violate the seal of the confessional?
I think my responses to you clearly acknowledges the claim you are making. There’s nothing that I say that should make you think I don’t understand. I don’t* accept* your assertion that confessions would stop and perhaps that is confusing you.
All of them? Nobody will ever again unburden themselves to a priest?
I’m saying hold the priests to the same standard and exceptions as others but the OP is saying that priests are special in that there can be no exceptions and there should never be any disclosure. Do you agree with that?
I do not see the societal benefit in allowing a specific class of priest to be above the standards we apply to all other groups. You are right, I don’t like it.
The privilege typically belongs to the priest, or to both the priest and the penitent jointly. Every state has slightly different rules concerning the issue, and I cannot summarize a general rule for the country; at least one state analyzes these communications by assuming two privileges simultaneously.
So, if you’re in a state where the privilege belongs to the priest, then he may disregard the confidentiality requirement and testify against the penitent.
For example, see Nestle v. Commonwealth, 22 Va.App. 336, 229 (1996):
You’ve said sentences like, “So in the state of Virginia (in the example you give in your next post) we should never see any such confessions to catholic priests?”
The answer is, of course, no, and it’s an answer entirely clear to almost anyone who understands the issue.
We would still expect to see confessions to Catholic priests in Virginia that might expose the penitent to criminal liability, because he knows the Catholic priest cannot break the seal of confession, even if Virginia law would let him do so, because canon law does not, and he would regard that as binding on the priest.
“Absolute privilege?” I have no idea what that phrase means. The existence of a privilege implies a holder of the privilege - someone who can waive it. You seem to be using the phrase “absolute privilege” to suggest some state of affairs contrary to Virginia’s. I’d say Virginia rests absolute privilege in the priest. Can youo explain what you mean by “absolute privilege?”
No we shouldn’t see those confessions? or no, it isn’t correct to say that and we should still see such confessions?
If your quote is correct then Virginia law does let him do so. It seems to be right there in the section you quoted. Is that not correct? And if it is correct, and the priest is legally able to divulge such information on serious crimes then he is indeed an arsehole for not doing so.
Yes, very simply. By absolute I mean that nothing is to be disclosed under any circumstances (i.e. a priest), for all the other professionals you mentioned that privilege is limited and exceptions apply. A priest should belong in the latter group rather than in a group by themselves with an expectation of “absolute” privilege.