In my view, there should be no privilege for criminal acts. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton
On Dec 7, 2013, at 12:12 PM, Richard Dougherty <dou...@udallas.edu> wrote: > 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 > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
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