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Old 15th November 2023, 08:39 PM   #81
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Originally Posted by mumblethrax View Post
Not quite the same thing as what?
Not the same thing as your friend telling you that they abused a child.

Originally Posted by mumblethrax View Post
I think I just answered this. No, it's counterproductive.
No, you answered about identifying signs of abuse in a child.
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Old 15th November 2023, 10:04 PM   #82
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Originally Posted by psionl0 View Post
Not the same thing as your friend telling you that they abused a child.

No, you answered about identifying signs of abuse in a child.
I wasn't talking merely about identifying signs of abuse, but reasons to believe that abuse is happening. Mandatory reporting laws will generally require reporting where there is something like "reasonable cause to suspect" abuse or neglect.

If a doctor asks how a child got those bruises, and a parent says "Oh, that's from where I beat him," I would think that would be sufficient to establish that there is reasonable cause to suspect abuse. If a therapist's patient tells her that he's abusing his children, and nothing in her professional experience suggests that this isn't true, this too would constitute reasonable cause to suspect.

Extending reporting requirements to everyone presents the same problem either way--you'll get people falsely reporting abuse, for reasons that range from incompetence to malice.

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Old 15th November 2023, 11:42 PM   #83
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Originally Posted by mumblethrax View Post
I wasn't talking merely about identifying signs of abuse, but reasons to believe that abuse is happening. Mandatory reporting laws will generally require reporting where there is something like "reasonable cause to suspect" abuse or neglect.
That's exactly what I am NOT talking about (and I think you know that).

I am talking about if a friend unambiguously tells you that they raped a child and not that you have to have the expertise to interpret what your friend is telling you.
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Old 16th November 2023, 12:52 AM   #84
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Tips for those that want to confess to criminal activities
1. Do not do it.
2. Make sure the person who you do confess to does not know who you are.

If people did the above the question in the OP would be irrelevant. Anyone who does not follow the above deserves to be caught.
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Old 16th November 2023, 01:54 AM   #85
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Originally Posted by JoeMorgue View Post
No.
I concur, and I would not limit it to just child abuse but to any criminality.
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Old 16th November 2023, 01:57 AM   #86
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Originally Posted by Thermal View Post
And of course I get why, but at certain extremes I think the confidentiality is overridden by public concerns. Agreed though, not here and now.
This is off topic, but you understand there is a crime/fraud exception, right?
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Old 16th November 2023, 04:05 AM   #87
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As far as I recall, the Catholic version of confession is actually different from the specific case being discussed.

If a catholic spoke in the confessional to a priest about having raped a child, but that they showed no signs of actually caring, and especially if there was every indication that the abuse would continue, the priest would not actually give absolution to the individual and would be free to report the criminal to anyone they wanted to including the police. The point o the confessional is for those who have committed a sin but wish to repent and confess their sin before god can do so, anyone who is unrepentant or going to continue to engage in the sin is not given the protection of the seal of the confessional because they haven't actually confessed and repented. Indeed, the priest in this case is (again, as I recall) encouraged to report the confession if it is criminal, and the encouragement is more emphatic the more serious the crime. If someone confesses to stealing a chocolate bar and is unrepentant the priest isn't likely to drop them in it with the police, but a murder or rape they are expected to provided that the confessor is not repentant and is obviously going to continue to commit the crime.

That said, if the priest believes the confessor is truly repentant and will not sin again in this nature they are obligated to keep the seal and not report the crime. This is where it becomes, for me, a morally questionable practice. In this sense, it's actually very similar to the concept of lawyer/client privilege in the US. If a client confesses to a lawyer that they committed a crime, the lawyer is not obligated to reveal it, and they cannot be forced into doing so legally, but if a client tells the lawyer they are continuing to commit said crime then the lawyer must report the confession of an ongoing criminal act to the police/the courts.

However that only applies to the Catholic Church, not LDS. It seems as though LDS confessionals are way, way more morally reprehensible than the Catholic one, which I find to be morally dubious personally.

I don't disagree with the argument that the priest should absolutely report any serious crime they are told in the confessional (murder, rape, child rape etc etc) but I can understand why from the point of view of the religious, the sin is between the sinner and god with the priest acting as a middle man, and therefore they should not be obligated to report said crimes. As an atheist, of course I don't think that the seal of the confessional should be given the same legal protection of lawyer/client nor should it be held sacrosanct at the expense of justice. Of course I don't. But I can see why others do, and I think it is a tricky area to get into.

In this case though, wherein the bishop must have known that the abuse was going to carry on? Hell yes, throw the bishop to the wolves.

Perhaps as a compromise the same sort of system given to lawyers should be used. If the crime is a historical incident and not ongoing or to be repeated, the seal can stay. If the crime is ongoing, and/or going to reoccur, then the priest should be obligated to report in the same way as a teacher, not merely allowed to.

It isn't a perfect compromise by any means, and it certainly relies far too much on the judgement of those who are not always the most sound thinking when it comes to these things, but it is perhaps better than the current system, and it allows for the religious to keep their sacred beliefs untarnished.

But again, it's just a layman's opinion.
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Old 16th November 2023, 10:20 AM   #88
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Originally Posted by MarkCorrigan View Post
As far as I recall, the Catholic version of confession is actually different from the specific case being discussed.
Snipped for brevity.

Thank you, this was exactly what I was thinking, and you did a much better detailed version of my thoughts than I could.

If you're not actually sorry (because you're going to just keep doing it), than it's not actually confession; it's boasting.
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Old 16th November 2023, 10:41 AM   #89
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Originally Posted by psionl0 View Post
That's exactly what I am NOT talking about (and I think you know that).

I am talking about if a friend unambiguously tells you that they raped a child and not that you have to have the expertise to interpret what your friend is telling you.
Having a friend tell you that they're abusing a child is "reasonable cause to suspect". I'm not really sure what your objection is.
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Old 17th November 2023, 02:16 AM   #90
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Originally Posted by Ziggurat View Post
Yes. Overall, I think that policy does more good than harm. This case is not actually an argument for doing away with it, because without that policy, the perp likely would have simply not confessed and continued to offend.
Based on what evidence?

Originally Posted by Darat View Post
And with that policy he continued to offend.
Exactly.
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Old 17th November 2023, 02:22 AM   #91
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Originally Posted by Ziggurat View Post
That scenario isn't under consideration.
Yes it is. The Mormons are declaring that their religous beliefs are superior to the law and the good of the people.

Originally Posted by Ziggurat View Post
You've got a weirdly expansive definition of "support".

Refusing to act to prevent the sexual abuse of children doesn't support that abuse?
Pathetic.
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Old 17th November 2023, 02:24 AM   #92
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Originally Posted by ahhell View Post
As an atheist, no of course not. Should confessors legally be required to report crimes confessed to them? IDK, as bad as this was, if the bishop had to report the crime, the only real difference is that the crime wouldn't have been confessed to anyone.

If I knew my priest had the obligation to report me for murder, I sure as hell wouldn't confess to murder to him.

Edit: to the best of my knowledge, its only the Catholics that really have the confessional requirement, even so, A catholic priest would be morally culpable for letting such a crime continue even if he isn't legally.
Which rather negates the supposed religous importance of confession.
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Old 17th November 2023, 09:35 AM   #93
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I don't think it can be stressed enough that this isn't a theological issue. Both priests felt their moral duty was clear, to break the seal of confession and report the crime to the authorities. They were convinced otherwise, not by spiritual arguments from the Mormon Pope or Metatron or what have you, but by the church's lawyers using the established principle of the confessional to absolve the church of any responsibility in the matter. This is a legal issue, serving money, not god, and as such the best we can hope for is that the ensuing lawsuits leave the church at least as ****** as those kids were.

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Old 17th November 2023, 10:14 AM   #94
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Originally Posted by Beelzebuddy View Post
I don't think it can be stressed enough that this isn't a theological issue. Both priests felt their moral duty was clear, to break the seal of confession and report the crime to the authorities. They were convinced otherwise, not by spiritual arguments from the Mormon Pope or Metatron or what have you, but by the church's lawyers using the established principle of the confessional to absolve the church of any responsibility in the matter. This is a legal issue, serving money, not god, and as such the best we can hope for is that the ensuing lawsuits leave the church at least as ****** as those kids were.
While I think that's mainly true, I can't but think that the priests who forsook their moral duty in favor of the church's arguments hitched their wagon to the wrong star. If I were in their position I'd at least be wondering if a church with that big a hole in its moral fabric is actually the thing I thought I was working for.
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Old 17th November 2023, 01:40 PM   #95
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I don't see a huge benefit to maintaining the sanctity of the confessional in this type of incident. At best you can say that it makes the confessor feel a little better. Against which you have the gigantic harm against the victims. Now that said, it doesn't mean that your local priest should turn into a narc; there has to be some sort of level of criminality (petty theft for example) that gets excused. But severe crimes like murder, rape and child sexual abuse should be reported to the authorities promptly.
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Old 17th November 2023, 11:21 PM   #96
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Originally Posted by MarkCorrigan View Post
As far as I recall, the Catholic version of confession is actually different from the specific case being discussed.

If a catholic spoke in the confessional to a priest about having raped a child, but that they showed no signs of actually caring, and especially if there was every indication that the abuse would continue, the priest would not actually give absolution to the individual and would be free to report the criminal to anyone they wanted to including the police. The point o the confessional is for those who have committed a sin but wish to repent and confess their sin before god can do so, anyone who is unrepentant or going to continue to engage in the sin is not given the protection of the seal of the confessional because they haven't actually confessed and repented. Indeed, the priest in this case is (again, as I recall) encouraged to report the confession if it is criminal, and the encouragement is more emphatic the more serious the crime. If someone confesses to stealing a chocolate bar and is unrepentant the priest isn't likely to drop them in it with the police, but a murder or rape they are expected to provided that the confessor is not repentant and is obviously going to continue to commit the crime.

That said, if the priest believes the confessor is truly repentant and will not sin again in this nature they are obligated to keep the seal and not report the crime. This is where it becomes, for me, a morally questionable practice. In this sense, it's actually very similar to the concept of lawyer/client privilege in the US. If a client confesses to a lawyer that they committed a crime, the lawyer is not obligated to reveal it, and they cannot be forced into doing so legally, but if a client tells the lawyer they are continuing to commit said crime then the lawyer must report the confession of an ongoing criminal act to the police/the courts.

However that only applies to the Catholic Church, not LDS. It seems as though LDS confessionals are way, way more morally reprehensible than the Catholic one, which I find to be morally dubious personally.
Yeah, this all makes sense to me. If confession is for the repentant, then confessing to a crime that is ongoing doesn't make much sense, and it doesn't seem like a problem to turn in those who continue to commit the crimes to which they supposedly confess: they are already making a mockery of the idea of the confessional.

Quote:
Perhaps as a compromise the same sort of system given to lawyers should be used. If the crime is a historical incident and not ongoing or to be repeated, the seal can stay. If the crime is ongoing, and/or going to reoccur, then the priest should be obligated to report in the same way as a teacher, not merely allowed to.
That does seem reasonable.


On the other hand I do think Myriad has a point that it doesn't make sense for the confessor to have a greater obligation to report crimes that do other citizens. But, at least as a moral policy within the church, rather than a legal obligation, I like your framework.
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Old 19th November 2023, 08:32 AM   #97
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Originally Posted by mumblethrax View Post
Having a friend tell you that they're abusing a child is "reasonable cause to suspect". I'm not really sure what your objection is.
"Reasonable cause to suspect" covers a much wider range than must your friend telling you directly. I don't know why you don't want to answer this specific question - unless the answer is that you shouldn't contact the authorities even if your friend tells you directly that you abused a child.
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Old 19th November 2023, 09:14 AM   #98
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Originally Posted by psionl0 View Post
"Reasonable cause to suspect" covers a much wider range than must your friend telling you directly.
Well, sure, but so what? It covers a wide ground that includes the case of a friend telling on himself. I'm still unclear on why you consider this an important distinction from the perspective of the law.

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I don't know why you don't want to answer this specific question - unless the answer is that you shouldn't contact the authorities even if your friend tells you directly that you abused a child.
I did answer it.

And the question isn't what you should do if your friend tells you he's raping his five-year-old daughter (the answer here is, I hope, fairly obvious), but what we ought to be legally obligated to do.
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Old 19th November 2023, 06:20 PM   #99
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Originally Posted by mumblethrax View Post
Well, sure, but so what? It covers a wide ground that includes the case of a friend telling on himself. I'm still unclear on why you consider this an important distinction from the perspective of the law.
You've put "your friend telling you he's raping his child" into a broad category. Yes, it fits into that category. But why are we using that particular category? We could use a broader one, "Your friend tells you something" for instance. It fits into that category as well. Should the law treat all examples that fit into that category the same?

The specific reason you gave earlier that the law shouldn't feature an obligation to report child abuse from non-experts is that they are not good at examining the evidence, and this obligation to report would turn up too many false positives for the system to handle. But that objection, while it may hold for the category in general, doesn't apply to the specific case of "friend directly confesses to horrible crime". In that case, even the non-expert can be expected to judge, and we wouldn't expect then number of false positives to be overwhelming.

This doesn't necessarily mean that we should have such an obligation to report: maybe there are other good reasons not to (I think there are), but it does suggest that there's reason to examine this issue separate from the general case of friends seeing evidence of child abuse.
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Old 19th November 2023, 11:03 PM   #100
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Originally Posted by Roboramma View Post
You've put "your friend telling you he's raping his child" into a broad category. Yes, it fits into that category. But why are we using that particular category?
Because that's the category that exists in most of the US under the law as it currently stands. It's the category we have some experience with, and thus some evidence about. It's the category that doesn't lead to especially perverse outcomes.

Quote:
But that objection, while it may hold for the category in general, doesn't apply to the specific case of "friend directly confesses to horrible crime".
Yes, it does. Not every confession will be to a real crime, nor will every report of a confession by a friend (or frenemy) be genuine, and the state has no easy way of distinguishing between such reports.

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This doesn't necessarily mean that we should have such an obligation to report: maybe there are other good reasons not to (I think there are), but it does suggest that there's reason to examine this issue separate from the general case of friends seeing evidence of child abuse.
If I see my friend sexually abusing his children, that's at least as good a reason to report as a confession. I just don't see a good reason to treat these separately, nor to try to create different criteria of obligation for different classes of people. People are making a mess of exploding obligations rather than apply a simple fix: just make the clergy mandated reporters.

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Old 20th November 2023, 08:33 AM   #101
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Originally Posted by mumblethrax View Post
People are making a mess of exploding obligations rather than apply a simple fix: just make the clergy mandated reporters.
What makes you think that a priest will have the "relevant training" to "correctly identify abuse or neglect"? Wouldn't they be burdening CPS workers with "huge backloads of bogus or mistaken reports to deal with" just like friends would?
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Old 20th November 2023, 02:11 PM   #102
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Originally Posted by psionl0 View Post
What makes you think that a priest will have the "relevant training" to "correctly identify abuse or neglect"? Wouldn't they be burdening CPS workers with "huge backloads of bogus or mistaken reports to deal with" just like friends would?
Because it's possible to require that professional mandatory reporters receive relevant training. That's not really an option with the public at large.

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Old 20th November 2023, 02:48 PM   #103
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Define "sacred".
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Old 20th November 2023, 04:55 PM   #104
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Originally Posted by mumblethrax View Post
Because it's possible to require that professional mandatory reporters receive relevant training. That's not really an option with the public at large.
I'm pretty sure that this would violate the 1st amendment.
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Old 20th November 2023, 08:31 PM   #105
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Originally Posted by psionl0 View Post
I'm pretty sure that this would violate the 1st amendment.
It doesn't.
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Old 20th November 2023, 10:16 PM   #106
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Originally Posted by mumblethrax View Post
It doesn't.
It does. The government cannot require training in order to practice religion. The first amendment isn't only about speech.
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Old 20th November 2023, 11:15 PM   #107
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Originally Posted by Ziggurat View Post
It does. The government cannot require training in order to practice religion. The first amendment isn't only about speech.
I would have to agree. I think it would count as a law respecting an establishment of religion. You can clearly make some laws concerning what can and can't be done in the name of religion (like you can't perform ritual human sacrifices, or claim your religion requires you to burn down houses), and a case might be made for mandatory reporting as it is for other actions when they occur, but I don't think you can specify qualifications for a religious function. Requiring training would, I think, fall under the same heading as government licensure, which clearly strays over the boundary of establishment.
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Old 21st November 2023, 07:03 AM   #108
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Originally Posted by Ziggurat View Post
It does. The government cannot require training in order to practice religion. The first amendment isn't only about speech.
And? This isn't "training in order to practice religion".

Originally Posted by bruto View Post
I would have to agree. I think it would count as a law respecting an establishment of religion.
In my view, this is backwards. Let's face it--sacramental confession is a feature of one religion (and not even every sect of that religion), and privileging such confessions is a product of that religion's historical interactions with the state in the west.

It just looks like people unwittingly arguing for Shariah law to me. Church law ought to supersede secular law in this area, and if it doesn't, that violates freedom of religion.

Quote:
Requiring training would, I think, fall under the same heading as government licensure, which clearly strays over the boundary of establishment.
It's already commonplace to require training of church employees (including clergy). Training of a religious character might be a problem, but it would be a problem for everyone. It's also not obvious to me how licensure of clergy would necessarily establish a particular religion, although I'm sure the states would prefer to avoid that can of worms.

Last edited by mumblethrax; 21st November 2023 at 08:31 AM.
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Old 21st November 2023, 07:09 AM   #109
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Originally Posted by arthwollipot View Post
Define "sacred".
sacred - connected with God (or the gods) or dedicated to a religious purpose and so deserving veneration. Google dictionary

In other words - like a USA citizen saying "can't do X because of the 1st amendment" as if the constitution is sacred and not just something humans made up and can be changed at any time....
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Old 21st November 2023, 10:00 AM   #110
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Originally Posted by mumblethrax View Post
And? This isn't "training in order to practice religion".
Yes it is. Let me remind you:

Originally Posted by mumblethrax View Post
Originally Posted by psionl0 View Post
What makes you think that a priest will have the "relevant training" to "correctly identify abuse or neglect"? Wouldn't they be burdening CPS workers with "huge backloads of bogus or mistaken reports to deal with" just like friends would?
Because it's possible to require that professional mandatory reporters receive relevant training. That's not really an option with the public at large.
You are suggesting the government require people to receive training in order to engage in the profession of priesthood. That is absolutely requiring training in order to practice religion.

Quote:
It's already commonplace to require training of church employees.
It's common to require training in the performance of non-religious activities that the church may hire people to perform. We do not require training of anyone in the performance of religious activities. It's not enough that the training itself isn't religious, you're still requiring it as a precondition of practicing religion. That's not OK.

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It's also not obvious to me how licensure of clergy would necessarily establish a particular religion.
It doesn't establish a religion. It prohibits "the free exercise thereof". Did you forget that's part of the first amendment too?
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Old 21st November 2023, 10:19 AM   #111
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Originally Posted by mumblethrax View Post
And? This isn't "training in order to practice religion".


In my view, this is backwards. Let's face it--sacramental confession is a feature of one religion (and not even every sect of that religion), and privileging such confessions is a product of that religion's historical interactions with the state in the west.

It just looks like people unwittingly arguing for Shariah law to me. Church law ought to supersede secular law in this area, and if it doesn't, that violates freedom of religion.


It's already commonplace to require training of church employees (including clergy). Training of a religious character might be a problem, but it would be a problem for everyone. It's also not obvious to me how licensure of clergy would necessarily establish a particular religion, although I'm sure the states would prefer to avoid that can of worms.
It's fine for a church to require training of employees, of course. But licensure seems to me exactly to be training in order to practice a religion insofar as the mechanism of confession is a part of that religion, if you must be licensed to practice it.

But I am not arguing for church law superseding secular law. I believe the mistake is privileging confession in the first place. If it is true that there is a constitutional protection for religion, in the sense that government cannot regulate the internal rules of a religion, then it would be logical to presume then that practices inconsistent with fundamental secular principles simply not be allowed. We do not generally allow religious principle to override certain public interests, such as child marriage, slavery, mutilation, blood sacrifice, and so forth. We can't regulate what those religions believe, or who believes it, and we can't require that practitioners undergo training to teach them that those things are wrong. We simply say "you can't do that." If privileged confession is deemed contrary to the proper functioning of civil society, we can't demand that confessors be trained to some secular standard, but making a church's principle of privilege a public law seems like the church making secular law, which is generally considered a no-no.

I would contend that if licensure imposes some prior condition on religious practice, or selects who may or may not be licensed, it would respect establishment in an unconstitutional way. You can regulate what anyone, religious or otherwise, does in a secular society, but I don't think that means you can set conditions of religious qualification beforehand.
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Old 21st November 2023, 01:56 PM   #112
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Originally Posted by bruto View Post
It's fine for a church to require training of employees, of course. But licensure seems to me exactly to be training in order to practice a religion insofar as the mechanism of confession is a part of that religion, if you must be licensed to practice it.
The requirement here would be the training--whether or not your religion involves confession is kind of immaterial. All clergy would be similarly burdened by the training itself. The requirement to report child abuse, confessional privilege be damned, would be the aspect of the law that would conceivably burden religious practitioners, so objecting to a training requirement (but not the reporting requirement) for clergy strikes me as odd.

Quote:
But I am not arguing for church law superseding secular law. I believe the mistake is privileging confession in the first place.
Then I apologize for misunderstanding you.

I agree that that's the source of the problem here, and I think on any disinterested read of the law, clergy-penitent privilege laws should be understood as violating the establishment clause.

Someone might argue that requiring clergy to break the confidence of confession burdens their free expression of religion--the problem with that argument will be that the state can do so where it has a compelling interest. It shouldn't be that difficult to establish that protecting children from being raped by their parents, or preventing churches from covering up such abuse, counts as a compelling state interest.

Quote:
I would contend that if licensure imposes some prior condition on religious practice, or selects who may or may not be licensed, it would respect establishment in an unconstitutional way. You can regulate what anyone, religious or otherwise, does in a secular society, but I don't think that means you can set conditions of religious qualification beforehand.
It's going to be necessary in a secular society to consider who counts as clergy for various purposes. We can imagine a system of licensure that works in the same way these tests already do--to get your clerical ID card, you just need to present paperwork from your own religion's ordinating body (or from your congregation, if you belong to an unaffiliated religion) that establishes that you are, in fact, a member of the clergy. I don't think it's obvious why this would fall on the wrong side of the establishment clause.

But requiring mandatory reporting training wouldn't amount to a ministerial qualification in any case. If a Catholic priest refused to take a required mandatory reporting training, he wouldn't stop being a Catholic priest, in the eyes of the state or the church. He (or his diocese) would probably be looking at a fine.
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Old 21st November 2023, 02:07 PM   #113
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Originally Posted by Darat View Post
sacred - connected with God (or the gods) or dedicated to a religious purpose and so deserving veneration. Google dictionary
Then, by definition, the confessional is "sacred".

The question is whether priests should disclose crimes confessed to them. That has nothing at all to do with "sacredness".

Sorry, I know what you mean. I'm just nitpicking. Obviously, priests should be subject to mandatory disclosure, just like everybody else in a position of authority.
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Old 21st November 2023, 02:20 PM   #114
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Originally Posted by Ziggurat View Post
You are suggesting the government require people to receive training in order to engage in the profession of priesthood.
No, I'm not. See above.

Quote:
It doesn't establish a religion. It prohibits "the free exercise thereof". Did you forget that's part of the first amendment too?
Again, see above.
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Old 21st November 2023, 03:26 PM   #115
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The only clergy-penitent privilege enshrined in U.S. law is that the clergy has the privilege of refusing to answer questions whose answers might incriminate a penitent in their confidence, during e.g. police investigations or criminal trials. That privilege does seem to violate separation of church and state. It is a privilege that someone's friend or spouse or bartender doesn't have (though their lawyer does, and each person has regarding themselves) and appears to exist only due to religious traditions.

However, as I keep pointing out, eliminating that privilege would not have made any difference in the case described in the OP, where no one was investigating or asking questions.

A reporting requirement for clergy, which could in principle have protected the victim or facilitated justice in the OP case, is a different thing. That would amount to the government saying that practicing religion in a particular way (i.e. taking confession) obligates you to meet an additional legal requirement that's not applied to the general public. That would be completely unconstitutional. Might as well institute a prayer tax while you're at it, because it would all be struck down anyhow.
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Old 21st November 2023, 03:39 PM   #116
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Originally Posted by mumblethrax View Post
The requirement here would be the training--whether or not your religion involves confession is kind of immaterial. All clergy would be similarly burdened by the training itself.
That's a restriction on the free exercise of religion. It's obviously unconstitutional, it's not even close.

Quote:
The requirement to report child abuse, confessional privilege be damned, would be the aspect of the law that would conceivably burden religious practitioners
It's a burden if only applied to religious practitioners. It's not if it applies to everyone, but there's a reason we don't apply that to everyone. It's a bad idea.

Quote:
so objecting to a training requirement (but not the reporting requirement) for clergy strikes me as odd.
Because you obviously don't understand the constitutional issue here.

Quote:
Someone might argue that requiring clergy to break the confidence of confession burdens their free expression of religion
It does if that requirement is because of their expression of religion, obviously.

Quote:
the problem with that argument will be that the state can do so where it has a compelling interest.
But not an interest that can't be met in less burdensome or discriminatory ways.

Quote:
It's going to be necessary in a secular society to consider who counts as clergy for various purposes. We can imagine a system of licensure that works in the same way these tests already do
We can imagine that, but it's still absolutely a first amendment free exercise violation.

Quote:
I don't think it's obvious why this would fall on the wrong side of the establishment clause.
Because you don't know what you're talking about. It's not a violation of the establishment clause, it's a violation of the free exercise clause. The government cannot act as a gatekeeper to religious practice.

Quote:
But requiring mandatory reporting training wouldn't amount to a ministerial qualification in any case. If a Catholic priest refused to take a required mandatory reporting training, he wouldn't stop being a Catholic priest, in the eyes of the state or the church. He (or his diocese) would probably be looking at a fine.
And if he doesn't pay the fine? What then? Are you going to imprison him?

There's a reason poll taxes are unconstitutional. Putting a financial burden on something prevents its free exercise.
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Old 21st November 2023, 03:51 PM   #117
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Originally Posted by Myriad View Post
The only clergy-penitent privilege enshrined in U.S. law is that the clergy has the privilege of refusing to answer questions whose answers might incriminate a penitent in their confidence, during e.g. police investigations or criminal trials. That privilege does seem to violate separation of church and state. It is a privilege that someone's friend or spouse or bartender doesn't have (though their lawyer does, and each person has regarding themselves) and appears to exist only due to religious traditions.
This is incorrect. This confidentiality privilege absolutely is extended to spouses. Your spouse cannot be compelled to disclose information you told them in confidence. Hell, it's even more extensive than just confidentiality, because you can actually prevent your spouse from testifying against you even if the matter being testified to isn't confidential.

And psychologists and medical doctors have confidentiality privilege as well.

Quote:
A reporting requirement for clergy, which could in principle have protected the victim or facilitated justice in the OP case, is a different thing. That would amount to the government saying that practicing religion in a particular way (i.e. taking confession) obligates you to meet an additional legal requirement that's not applied to the general public. That would be completely unconstitutional. Might as well institute a prayer tax while you're at it, because it would all be struck down anyhow.
This is correct. The only constitutional way to do it would be to impose such a reporting requirement on everyone. But as has been mentioned before, that's a bad idea, we don't do that for a reason.
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Old 21st November 2023, 04:06 PM   #118
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The actual law varies by state. From childwelfare.gov:
Quote:
Every State, the District of Columbia, American
Samoa, Guam, the Northern Mariana Islands,
Puerto Rico, and the U.S. Virgin Islands
have statutes that identify persons who are
required to report child maltreatment under
specific circumstances.1 Approximately 28
States and Guam currently include members
of the clergy among those professionals
specifically mandated by law to report known
or suspected instances of child abuse or
neglect
.2

and...
Quote:
... among the States that list clergy as mandated reporters, Guam, New
Hampshire, and West Virginia deny the clergy-penitent privilege in cases of child abuse or neglect.
Four of the States that enumerate "any person" as a mandated reporter (North Carolina, Oklahoma,
Rhode Island, and Texas) also deny clergy-penitent privilege in child abuse cases.
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Old 21st November 2023, 04:08 PM   #119
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Originally Posted by Ziggurat View Post
This is incorrect. This confidentiality privilege absolutely is extended to spouses. Your spouse cannot be compelled to disclose information you told them in confidence. Hell, it's even more extensive than just confidentiality, because you can actually prevent your spouse from testifying against you even if the matter being testified to isn't confidential.

You're correct, of course, and I got that wrong. I recalled having read that spousal immunity is not applicable in all countries, and I forgot that the USA is one of the countries where it does apply.

Quote:
And psychologists and medical doctors have confidentiality privilege as well.

They do, but in the U.S. they also have reporting requirements for specific exceptional circumstances. That would probably be an ideal compromise approach to confessional privilege as well, for cases such as the one this thread's about. But the Constitution doesn't say "Congress shall make no law... prohibiting the free exercise of... medicine." It does re religion. That's the crucial difference, as you've also noted.
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Old 21st November 2023, 04:56 PM   #120
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I'd just add that I work in social services and am a mandated reporter. The training is not that extensive. In my state, it's literally a 3 hour video that's mostly common sense, a lot of repetition, and the conclusion that if you suspect abuse for any reason whatsoever and don't report it, you and your agency can be held liable, or words to that effect.

I am by no means some kind of forensic psychological expert, or madly skilled detective. That's not what the training is.
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