New state law requires clergy to report confessed child abuse offenses, but it conflicts with the First Amendment and may not do much to curb the problem
I disagree on this one. The primary reason I think priests should have to report is that the victim is a child, not someone who can necessarily help themselves. I have never been a fan of religious beliefs overruling common sense. This isn’t the same as a robbery; a sexually abused child is damaged for life.
Ed Putka here. As a former judge and criminal defense lawyer, I read your piece with interest. I agree it's an intrusion into First Amendment rights, but what struck me the most is how wide a net it cast. It could have been narrowly written to mandate disclosure when necessary "to prevent substantial bodily harm." (If, for example the confessor says, "I think I'm sick and can't stop and will surely do it again.") That would comport with what we, as lawyers, are allowed to do but would still protect the general privilege. I had a case once as a criminal defense lawyer where, at my first meeting with my client in the jail, he told me he had a shiv hidden under his bunk and was going to get the snitch that got him arrested. I knew the lawyer-client privilege rule but was unsure of the interpretation. I went from the jail to the presiding judge, and he told me, in his opinion, it was subject to disclosure, whereupon I told the Sheriff. They searched but never found a knife and I withdrew from the case.
The other thoughts that came to mind were that a confession isn't necessary to get a criminal conviction, and, conversely, a confession alone isn't enough for a criminal conviction. As such, the law is not a cure-all. Sex-abuse cases rarely involve confessions but rely on extrinsic evidence from victims or their parents. And if all the prosecutor has is the perpetrator's statement made in confession, the case lacks the corpus delicti (independent evidence of a crime) to sustain a conviction.
Anyway, good article and thanks for your thoughtful exploration of the subject.
Great article! You brought up more to think about on the issue than most of us would have considered. It changed my mind about the new law I think. It is a complicated matter for sure. Although I suppose that a priest, if they had heard a confession regarding child abuse, could just not pass the information along to authorities. Would anyone know that they had not done so??
I believe Washington was one of the last states to include clergy people as mandatory reporters. Many states include phrasing that include "any person" as being a mandatory reporter, which encompass a member of the clergy, although not explicitly. I found this article (which includes a link to information on privilege laws in the US under the underlined text of "one of the few states") to be really interesting.
I disagree on this one. The primary reason I think priests should have to report is that the victim is a child, not someone who can necessarily help themselves. I have never been a fan of religious beliefs overruling common sense. This isn’t the same as a robbery; a sexually abused child is damaged for life.
Thanks for your comment Gina. This is a tough call. I may have concluded otherwise had I felt like the legislation would make a major difference.
It could make a difference if the child told the priest during his/her confession.
Ed Putka here. As a former judge and criminal defense lawyer, I read your piece with interest. I agree it's an intrusion into First Amendment rights, but what struck me the most is how wide a net it cast. It could have been narrowly written to mandate disclosure when necessary "to prevent substantial bodily harm." (If, for example the confessor says, "I think I'm sick and can't stop and will surely do it again.") That would comport with what we, as lawyers, are allowed to do but would still protect the general privilege. I had a case once as a criminal defense lawyer where, at my first meeting with my client in the jail, he told me he had a shiv hidden under his bunk and was going to get the snitch that got him arrested. I knew the lawyer-client privilege rule but was unsure of the interpretation. I went from the jail to the presiding judge, and he told me, in his opinion, it was subject to disclosure, whereupon I told the Sheriff. They searched but never found a knife and I withdrew from the case.
The other thoughts that came to mind were that a confession isn't necessary to get a criminal conviction, and, conversely, a confession alone isn't enough for a criminal conviction. As such, the law is not a cure-all. Sex-abuse cases rarely involve confessions but rely on extrinsic evidence from victims or their parents. And if all the prosecutor has is the perpetrator's statement made in confession, the case lacks the corpus delicti (independent evidence of a crime) to sustain a conviction.
Anyway, good article and thanks for your thoughtful exploration of the subject.
Great article! You brought up more to think about on the issue than most of us would have considered. It changed my mind about the new law I think. It is a complicated matter for sure. Although I suppose that a priest, if they had heard a confession regarding child abuse, could just not pass the information along to authorities. Would anyone know that they had not done so??
What a terrible quandary. There is no easy answer but maybe at the discretion of the individual church representative rather that a blanket edict.
I believe Washington was one of the last states to include clergy people as mandatory reporters. Many states include phrasing that include "any person" as being a mandatory reporter, which encompass a member of the clergy, although not explicitly. I found this article (which includes a link to information on privilege laws in the US under the underlined text of "one of the few states") to be really interesting.
https://www.investigatewest.org/investigatewest-reports/washington-legislature-passes-bill-to-make-clergy-mandatory-reporters-of-child-abuse-17864136
Thanks for sharing this..