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Posted by: GNPE ( )
Date: April 12, 2023 03:43PM

All these laws need to be changed - away from protecting the abusers TO getting protection For the past & possible future victims.

WAKE UP LEGISLATORS !!!!!

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Posted by: deacondenny (nli) ( )
Date: April 12, 2023 04:35PM

It's a losing battle and likely one that would do little good. Any state that tried to enforce it would have to spend millions fighting the catholic church. In the end, abusers would simply stop confessing and no one would end up being protected any more than they are now.

At least lds doctrine doesn't teach that absolution is offered by the clergy on the merits of confession alone. One of the few relative good points.

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Posted by: Lot's Wife ( )
Date: April 12, 2023 04:45PM

Untrue.

These privileges are defined by the states. Many states limit them to exclude from protection evidence of ongoing crimes of the sort that the LDS church has concealed. If a psychiatrist, for example, learns that someone is an imminent threat to others and does not report the danger, s/he is professionally and legally liable. So too a doctor, so too a member of the clergy.

What the church does--burying records of abuse in one ward, then letting the perpetrator go on to another ward and do it again--is criminal in much of the United States. This is what happened in that Virginia case, which resulted in a major public humiliation. It is also what drives so many of the church's confidential settlements.

There is nothing inevitable, or morally laudable, in what the AZ court has decided.



Edited 1 time(s). Last edit at 04/12/2023 07:10PM by Lot's Wife.

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Posted by: Boyd KKK ( )
Date: April 12, 2023 07:51PM

If one is protected and moves to another Ward/Stake and is protected there maybe an enterprising Prosecutor can go after them for an ongoing Criminal Enterprise?

Much like some States make conspiring to commit a misdemeanor a Felony?

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Posted by: Lot's Wife ( )
Date: April 12, 2023 08:09PM

RICO? I'm not sure the statute has been used for child abuse yet.

The law, as I understand it, says you need a conspiracy to commit a crime and a step towards the commission of that crime. I'm pretty sure RICO could used against child traffickers, since there is a conspiracy and a concrete action in its furtherance, but in the church's situation I don't know that anyone affirmatively tries to promote the abuse.

There's also a question about scienter: did the church intend to commit, or know that it was committing, a crime? Since the church does not encourage and support child abuse, is there a conspiracy at all? Or did it just conceal evidence of past crimes in the plausible belief that there was no obligation to report the information to the authorities?

Again, I don't know.

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Posted by: deacondenny (nli) ( )
Date: April 12, 2023 05:55PM

In all sincerity, can you cite any court case in which the catholic church was forced to break the seal of confession? I understand that the laws are on the books that are designed to do so, but enforcing them will be very costly, since it remains a "non-negotiable" for the catholic church. The lds church will hide behind that.

This Arizona case was specifically about the seal of confession, which is what I was addressing. I don't believe that that came into play in the Virginia case. The folks who would have been in a position to take a confession were informed themselves by law enforcement. That one was a bunch of family members using their church influence to pretend that he was not a sick twisted pervert. I could be wrong, but I never read that confession came into play.

I didn't say that the decision was morally laudable, but I do believe that it is inevitable (concerning the "seal of confession") for the time being. The seal of confession is a core feature of catholic doctrine. It goes to the belief that Christ gave his apostles the power to absolve sin as he did. Catholic priests aren't allowed to even require some sort of "outside" penitence like "go to counseling", because that would suggest that the power to absolve sin is somehow conditional upon a force outside of the confessional relationship. I obviously don't believe that, but it's a pretty hardcore belief and any challenge to it would get into some heavy freedom of religion territory.

I believe that a major factor in many of the settlements the lds church has done is that it recognizes that actions of other members not involved in confession, or those who do take confessions have done things inconsistent with church policy that would highlight the fact that some dentist who is called as bishop for 5 years may not stand up to some court's scrutiny of what qualifies as "clergy". I think they stand on the wall and fight when there's a clear path to the protection of "clergy" like was the case in this AZ decision. Makes them feel legitimate.

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Posted by: Lot's Wife ( )
Date: April 12, 2023 06:24PM

I'm surprised at your narrow focus on Catholicism, which is a small part of the picture. There's no need to produce precedents about that religion because we have them about the LDS church itself.

1) LDS bishops are indeed clergy. The only standard is that the person in question is recognized by the religion and its followers as clergy, which is assuredly the case for Mormon bishops. There are no shades of legal responsibility based on education, qualification, or competence.

2) The clerical privilege differs from state to state and is determined by legislation and by common law. It generally includes not just confessions but all confidential information received in the performance of clerical duties--anywhere, in other words, where the expectation of confidentiality obtains.

3) The Virginia case was precisely about clerical privilege. The key was that the bishops and mission and stake presidents with the relevant information did not convey the information to other church authorities or to the police. If it had just been a question of a prominent family, as you suggest, the priest-penitent privilege would never have arisen. But it did, and the church lost.

4) Again, in most states the privilege--doctor-patient, attorney-client, priest-penitent--does not cover ongoing or future crimes. If you know or strongly suspect that a person will abuse a child, you are obligated to report it. Period.

I do not know Arizona well, but a quick internet search indicates that priests too are required to report.

"State law spells out which people are obligated to report:

. . .
Peace officers, child-welfare investigators, child-safety workers, members of the clergy, priests or Christian Science practitioners.
. . ."

https://www.azcentral.com/story/news/local/arizona-child-welfare/2018/04/11/understand-system-these-people-reporting-child-abuse-mandatory/495688002/

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Posted by: deacondenny (nli) ( )
Date: April 12, 2023 07:57PM

My focus on Catholicism is because the genesis of this thread is a case about seal of confession protection for clergy. Catholicism is the gold standard for both caring about it and will indeed be the biggest hurdle for any legislation to be enforced that requires that seal to be broken. And to my knowledge, although there are a handful of states that have passed laws requiring it, no case has successfully forced a it to be broken. Louisiana came close. I'm not defending the position, but rather defending my position that it is a zero sum game. Such a law would have to defeat the Catholic position to be fully enforced. And that's not happening any time soon.

1) I agree that lds bishops are clergy. However, the church has already faced laws internationally that have rejected missionaries as clergy and they are probably cautious. That's supposition on my part though. If I were personally going after seal of confession laws, I'd certainly attack untrained clergy first.
2) While I know that laws differ from state to state, I'm not aware of any successful challenge to the seal of confession.
3) I was unaware that there was any recognition that Jensen ever confessed. I'm not defending the church, but my understanding is that there weren't any allegations of failure to report from a confessional standpoint. The key point was that the mother was the RS President and kept suggesting that her son could babysit.
He was arrested in Utah, but never convicted. I'm pretty sure the church could effectively defend not passing along accusations that never resulted in convictions. The reason the church "lost" was because you had a High Council member and a Relief society leader, who definitely qualify as "church leaders", but don't take confession.
4) Again, I'm that no law, even regarding ongoing or future crime has been enforced against the seal of confession. Mandatory reporting laws are usually about finding out from the abused about abuse. In the Virginia case, the bishop actually handed the abuse victims' parents the phone number for the police and called to make sure that the report had been made. It's a different scenario.

Again, I'm not defending the church or abusers, but this Arizona case was decided specifically about confessional seal legality and it is not going anywhere soon.

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Posted by: Lot's Wife ( )
Date: April 12, 2023 08:24PM

"New Hampshire, North Carolina, Oklahoma, Rhode Island, Texas, West Virginia, and Guam disallow the use of the clergy-
penitent privilege as grounds for failing to report suspected child abuse or neglect."

There you have it. In those states priest-penitent privilege does not cover child abuse.

https://www.childwelfare.gov/pubPDFs/manda.pdf, footnote 22.

The same is true of North Carolina, Oklahoma,Rhode Island, and Texas, states which deny ALL confidentiality privileges--doctor-patient, attorney-client, priest-penitent, and spousal--in the case of child abuse.

https://www.childwelfare.gov/pubPDFs/clergymandated.pdf, p. 2.



Edited 2 time(s). Last edit at 04/12/2023 08:25PM by Lot's Wife.

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Posted by: deacondenny (nli) ( )
Date: April 12, 2023 11:42PM

This is a bit circular. I know what the laws say, but none have them have been enforced and tested in a court yet (specifically against a catholic or lutheran priest - that would be world changing news).

My response was specifically in reaction to the call for legislators to wake up in response to the specific case cited (which you agreed was limited in scope). I'm not a big fan of my legislators taking action in a cause that is unproven, likely to be expensive to prove, and won't help much. This particular case isn't the rallying cry. That's all.

There have been cases where the penitent privilege was argued against baptist ministers, helped by the fact that their doctrine does not support the role of clergy as a representative of Christ in a confession. I'm not aware of any cases where it has caused a break of confessional seal in a Catholic, Lutheran or other religion that does believe in confession.

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Posted by: Lot's Wife ( )
Date: April 13, 2023 12:11AM

You asserted that no case has ever tested those laws. It's up to you to prove your proposition, isn't it? If your argument is true, there will be legal articles stating so. Can you refer us to such publications?

Conversely, if the states who are mandating reporting are mistaken and in fact cannot constitutionally or otherwise do that, there must be cases in which reporters spoke to the police and/or courts and defendants challenged them for violating the privilege and prevailed. Do you have any such evidence?



Edited 2 time(s). Last edit at 04/13/2023 01:04AM by Lot's Wife.

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Posted by: deacondenny (nli) ( )
Date: April 13, 2023 10:39AM

There's a strong "evidence of absence" in this case. The most prominent case in the last 20 years is probably a case in Louisiana, where a lower court ordered a Catholic Priest to break the seal of confession, because the victim herself had agreed to break it. However, the priest refused based on Catholic belief regarding the sanctity of confession. A higher court then reversed the decision. The Louisiana supreme court then decided in 2014 that he did in fact have to break the seal. He still refused to testify and the diocese filed an appeal to the US supreme court. They referred the case back to the 5th US District court. Before it was tried there, the Louisiana supreme court made a decision in 2016 to clarify that he did not have to break the seal.

https://www.theadvocate.com/baton_rouge/news/courts/priests-cant-legally-be-forced-to-reveal-whats-heard-in-confessional-louisiana-supreme-court-rules/article_54c7bc3c-9d5b-11e6-bd7e-e3457316f1e4.html

This isn't a perfect example, because the court made the final decision based on the fact that the legislation did not specifically remove the protection for clergy. In none of the states that have specifically suspended that right in legislation, have there been court cases where a priest has been put in the position of being ordered to break the seal. Believe me, there would be a paper trail of that ever happening. The catholic legal community keeps tabs on things like this and were all abuzz about the Louisiana case.

What this case is a good indicator of is the lengths to which the Catholic church will go to defend this important belief. The abuse victim had given permission for the seal to be broken and the abuser was already dead, but the Catholic church still fought to defend the seal and the priest was willing to go to jail rather than break it. That is good evidence that no such case would be kept quiet and swept under the rug.

So, while it is notoriously difficult to "prove a negative", there's a strong case for "evidence of absence", rather than "absence of evidence".

Given the lack of cases and the tenacity of the Catholic church either the the evidence of absence indicates that no one has dared fight that fight, or that occasion to fight it is so rare that it would make little difference, which is another of my propositions.

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Posted by: Lot's Wife ( )
Date: April 13, 2023 02:06PM

I read the case differently.

First, I think you are giving too much attention to the Catholic Church. It is not that politically influential in most US states and the question is about religion in general, not about a specific faith or a specific state.

That said, your case is from Louisiana, which is probably the state in which the Catholic Church is most powerful and also one that does not use the legal system that the rest of the US does. The system there is "civil law," as opposed to "common law," and stems from the Roman tradition rather than the English. There is no other state in the union like that.

Judging from your article, furthermore, "the Supreme Court on Friday conceded that it never 'conclusively determined' whether a priest, in administering sacramental confession, is a mandatory reporter of child abuse under provisions of the Louisiana Children's Code." That sentence, if it is a fair recapitulation, indicates that the question isn't about the privilege but about whether the law makes clergy mandatory reporters for whom the privilege must be pierced. Pointedly, the court did NOT say that priest-penitent privilege is immune to legal reporting laws.

The court adds that "a review of the legislative history 'provides further proof the Legislature never intended to impose such mandatory reporter status on priests'" in those circumstances. That again indicates that the legislature could, if it wanted, impose mandatory reporting requirements on clergy notwithstanding the traditional confessional privilege.

That is obiter dictum but indicates preliminarily that the the priest-penitent privilege does not have constitutional status.

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Posted by: Lot's Wife ( )
Date: April 12, 2023 06:40PM

The issue in the case you describe was about a narrow issue: whether subsequent acknowledgement of having committed child abuse constituted a waiver of his priest-penitent privilege that would have required the church to produce its records. The court decided that it did not.

What the decision did not do was overturn the law requiring clergy to report ongoing abuse and/or the high likelihood of future abuse. The privilege and its limitations were not implicated. The case was about the waiver.



Edited 1 time(s). Last edit at 04/12/2023 06:56PM by Lot's Wife.

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Posted by: Soft Machine ( )
Date: April 13, 2023 02:18PM

It is a great visual. The decision stinks, however. More perp protection, indeed. I get the idea from my reading that your varied and highly politicized legal system (at least in some areas of law and in some states), often intertwined with religious and business interests, is well on the way to becoming a monster.

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Posted by: dagny ( )
Date: April 13, 2023 06:59PM

I'm feeling especially cynical today. I suspect some LDS money got nicely classified and donated so that it was discretely funneled to people who pretend not to take bribes in the AZ court and political system.

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Posted by: Lot's Wife ( )
Date: April 13, 2023 07:01PM

Those officials had better be careful not to get caught taking bribes.

It's not as if they are Supreme Court justices.

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Posted by: dagny ( )
Date: April 13, 2023 07:14PM

They learned some tips from Sinema.

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