I much appreciate Marci's comments. From the point of view of the free exercise of religion, the question for the believer, in my view, is what the effect of the revelation of confidential information is on the soul of the penitent, not what the legal consequences might be. Obviously the state has other concerns, but they need not clash, except at the margins (though that's what really counts). I agree that the fall-out of the abuse crisis in the Catholic Church has seen some try to claim privilege where no legitimate claim of privilege seems to be at stake. The dangers of doing so are multiple -- most importantly, more people are put at risk of future abuse, but it also undermines legitimate claims of privilege, as those entrusted with making judgments about its legitimacy find it harder to distinguish the genuine from the spurious. I'm not convinced that discussions in diocesan chanceries about how to avoid losses in court are part of the free exercise of religion.
The abuse crisis in contemporary America (not, of course, confined to the Catholic Church) is painful for what it has done to so many who have suffered, and it has been devastating for the Church. Almost all of what I have seen has nothing to do with Confession or free exercise of religion, though, and here I support Marci's strong view of holding responsible those who have enabled abusers; while this would likely prevent subsequent abuse -- the most important consequence -- it would have the side effect of calling Catholics to abide by their own beliefs. Richard Dougherty University of Dallas On Sat, Dec 7, 2013 at 7:45 AM, Marci Hamilton <hamilto...@aol.com> wrote: > Richard's point is fair so let me provide some more context that perhaps > would be helpful. > > Privileges are concoctions of positive law dealing w what information can > be excluded in the judicial process. The confessional privilege is no > different than the attorney client privilege or the spousal privilege on > that score. Every faith invokes it or tries to to avoid disclosing legally > damaging evidence in the judicial process. The RCC and LDS are the most > active in lobbying to expand it in the state legislatures. > > It is always invoked in clergy sex abuse cases and to avoid mandatory > reporting of child sex abuse. Courts have had to struggle w the > distinction between counseling and confession for salvation purposes, > because when laws are violated, the exclusion of relevant evidence is to be > avoided. The privilege, depending on the state, belongs to the confessor > or confessee and always can be waived but how differs state to state. It > is routinely waived if the content is disclosed outside the one-on-one > confession. > > It is also routinely invoked to conceal information that was obtained > outside the confessional. > > It is my view that there should be an exception to it that parallels the > attorney client exception for future crimes or fraud. And that it should > not be an exception to mandatory reporting of child sex abuse. The > privilege is a permissive accommodation that we have learned has a > corrosive effect on children, families, churches, and society. Under > Smith it is not required and under a RFRA analysis it should not overcome > the needs of the judicial process or mandatory reporting laws. > > I offer these examples to contextualize the discussion. It only matters > when it is alleged a law has been broken so that law should be the > starting point for discourse. > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > >
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