The Psychology of the Confessional

Since the national breaking story about the Church’s abuse hotline and an Arizona bishop providing cover for a father to continue to sexually abuse his daughters, film it and distribute it for over seven years, there’s been quite a bit of online discussion about whether the Church really has priest-penitent privilege. The Church is asserting that it does. Some members are saying “Does it, though?”

If you’ve ever been in a Ward Council meeting, you have probably received information about various ward members and their needs, sometimes temporal, sometimes spiritual, discussed with those who are in roles that can provide some kind of assistance. Additionally, if a Church member is subject to a disciplinary council, there are now a dozen men who are privy to that member’s confessed sins.

Beyond all that, there is the question of BYU. When I attended BYU, back in the late 80s, there was no requirement that professors be current temple recommend holders (also not a requirement for callings), but now there is. Since bishops, who may not be associated with their congregants’ university employer directly, are the ones who decline to give someone a temple recommend, usually based on a confessed sin (compelled by a specific set of questions that are asked), they are sharing supposedly confidential information with the employer of the person confessing. Once you link employment to “worthiness,” you no longer have confidentiality. This is also the case for students who attend BYU, which is again, a change from when I attended there when an ecclesiastical endorsement was required to enter but not re-evaluated ongoing by a local student bishop whose opinions of “worthiness” might differ from one’s home bishop.

We talk about leader roulette, and for those working at the BYUs, the roulette is real and has direct financial and academic consequences. If you want to teach students and faculty to lie and to view bishops with distrust, this is the recipe. Only the hopelessly naive and the opinionated will suffer consequences. The end result is a church full of cynics and cowards, at least at BYU.

As a youth, I remember being taught that “sexual sins,” including petting and beyond, required confession to a bishop to become “worthy” again. Sex was basically the only sin outlined as requiring this type of spontaneous confession, not theft or assault or vandalism or domestic abuse. When we were teens, a friend of mine claimed he was confessing to the branch president (he wasn’t) to encourage his friend to confess (he did). Was this process effective, from a Church standpoint? Probably not. The former is still involved with the Church; the latter hasn’t been to Church since high school, and despite confessing did not really make any lasting changes or increase his commitment to the Church. Another friend who confessed something when we were in high school endured embarrassment when the branch president told his wife about it while her parents waited in the next room for their annual tithing settlement, overhearing the whole thing.

When I was a teen, confession had to be spontaneous because we weren’t subject to regular worthiness interviews like adults and BYU students and faculty are. Worthiness interviews are designed in a specific way to prevent someone whose behavior or beliefs are not acceptable from participating fully in specific Church rituals or from holding an influential position at Church. Worthiness interviews are simply not the same thing as a confessional, regardless of what the Church might believe. They might enable confession, but they probe and prompt members in a guided process. And maybe that’s OK, if that’s how the Church prefers to run things, and if Church members are OK with that. Caveat emptor. There’s a reason we are told to give “yes” or “no” answers to the questions without elaboration, and leaders are instructed not to “freelance” on the questions asked. After all, our scriptures (looking at you, Doctrine & Covenants) refer to confession of sins as a public matter, something one does in front of the rest of the congregation to demonstrate true repentance and to obtain community forgiveness. This view of repentance points to a completely different type of confession, one that is about building a spiritually pure Zion society, not about individual remorse and obtaining forgiveness from divinity with “fear and trembling.” Repentance in our scripture is a private matter; confession is public.

When we think about confessional privilege, we always think of the Catholic Church because in Catholicism, regular confession is a sacrament, something spiritually required to unburden the soul and improve one’s discipleship, but these confessions are sacrosanct and completely private between the penitent and the priest. The priest who hears a confession is prohibited from sharing it with any other soul. Not their superiors, not other priests. Nobody can ever hear what the penitent said to them. The priest will be excommunicatd if he breaks the “sacred seal of confession,” even if the person confesses to heinous crimes like murder or pedophilia. We simply do not have anything like this in the Church. But we do assert that things confessed to a bishop are “confidential.” We seem to mean this in the more colloquial sense, e.g. what is confessed at Church stays within the Church. How could we do otherwise when our bishops are temporary, only under the mantle of the calling for 5-7 years?

Catholic-style confession is a completely different matter than Mormon-style confession. The ring of Gyges is a myth about a magical ring that rendered the wearer invisible. The one who possessed it could do all sorts of mischief without detection. Catholic confession reveals one’s dark deeds to someone who is inside of that ring of Gyges; the secrets remain secret. There is still no detection and no community awareness of the crimes one has committed or the secret thoughts and beliefs in one’s heart. Confessing without consequence is an unburdening indeed, relieving oneself of the negative feelings associated with error without fear of punishment or retribution. This is one reason that mafia movies present such a cozy relationship between Cardinals and mob bosses. The Cardinals can keep a secret, and the screenwriters can use this effective device to tell the audience what crimes were committed and what the mobster’s internal state is.

It’s also one reason that a lot of people, since the social media age, have felt solace in confessing their mistakes, sins, and feelings in anonymous boards. There is an inate human need at play. Secrets fester and create a canker on the soul, whether they are sins or not. Telling a secret is psychologically powerful. It unburdens the soul. It takes the power out of the secret in one’s life. One feels lighter, freer.

We just don’t really have that in the Church. You can confide something to your bishop if you want, but if he tells other leaders, there is no consequence to him. If he tells his wife, nothing happens. We tell bishops that confidentiality is important, but our actions tell them it’s not the only important thing or even the most important thing. Things that are more important include helping those in poverty, reaching out to those who are struggling with a hand of fellowship, and yes, policing the actions and beliefs of Church members who are both members of and, in many cases, running our congregations (and attending and teaching at our universities). Bishops typically share information when they subjectively decide that sharing it is to the benefit of the individual or community. Those who have confessed may disagree with their assessment. With 31,315 bishops (and branch presidents) worldwide, they can’t all be winners.

Being open about that is important because it means that there is no such thing as a true confessional in the Church. That’s OK if community purity (of not just action, but also belief) is more important to us than providing spiritual succor. Members can go elsewhere if they want pastoral care; that’s not really in our wheelhouse. Save your confessions for Post Secret or a truly trusted friend. My own preference, which doesn’t matter, would be that we change our priorities, but its been decades since we started down this path, and I don’t see it changing any time soon, if at all. Am I a coward or a cynic? Perhaps both, but I don’t owe anyone a window into my soul. I don’t inherently trust a bishop to do the right thing, even if I think that is their intention, even if I support them and hope they are worthy of the trust members place in them. I open the kimono for doctors, not dentists.

Discuss.

Comments

  1. Regarding your opening paragraph, it’s highly inflammatory. The church was not providing cover for the man to rape and film and distribute his content. We are not even sure what had happened (in the confessional), what it knew, when it knew it, how it acted or didn’t act, etc. We have allegations made public by one side in a lawsuit. We have no idea what was confessed, when the confession was made and what he was eventually excommunicated for. It detracts from the rest of the article, but I guess you wanted to get it off your chest and take some shots.

    To the main point:

    “By this ye may know if a man repenteth of his sins—behold, he will confess them and forsake them.”

    I find it odd that as a faith we have this clear directive from the Savior and we don’t actually have a real doctrine and policy for confession. According to what the Savior said, there is no repentance without confession. Now, we could confess our sins in private to the Lord and forsake them. That could still constitute repentance according to the Lord’s definition.

    However, there seems to be some weight at least on someone actually knowing if someone has repented in the first part of the sentence. Who would that be if not the bishop. Surely, we’d rather have it be the bishop in private than the congregation on Fast Sunday.

    So the Lord calls for confession as part of repentance, and the church has no formal means of accomplishing that, probably because it would look too Catholic.

  2. Who would that be if not the bishop?

    I’ve always read this to be the person who was sinned against. So if I stole something, the confession is to the owner of the property. If I cheated on a spouse, confession is to the spouse and the rest of the family affected, etc. Since Bishop’s didn’t exist in Christ’s time, I don’t know how he could possibly have been speaking of them (or any other leader of an organized congregation, since those didn’t exist either.)

  3. Sute: I didn’t mean that to be inflammatory beyond what the reporting showed (which itself was pretty inflammatory), and I referred to the bishop’s inaction (whatever the root cause), not the Church specifically. Regardless, I appreciate that you looked past my opening paraphrase of the news story to the substance of the post. I found your comments helpful, and yes, I agree wholeheartedly with you that public confession would suck. Can you even imagine? Whenever I have read about that in the D&C I think it sounds like the Puritanical pillory more than anything we would recognize today.

    RetX: Yes, there’s definitely scripture, modern scripture, that says you need to tell the person you harmed what you did, but it doesn’t mention the bishop as intermediary (or substitution? It’s not a foregone conclusion that confessing to the one you harmed is going to be recommended by the bishop either). Honestly, though, while the idea of confessing to the one you harmed sounds progressive, and is part of the Twelve Steps AA uses, I’m mixed on whether it’s a net positive psychologically. The one you harmed may be further harmed by your confession. It probably depends on what you did and what they need to know. Sometimes a person confesses to make oneself feel better, but it makes things worse for the other person, not better.

  4. Of course confession takes a different form among Latter-day Saints than it does among Catholics. However, knowing that isn’t very helpful to determine whether communications with a bishop qualify for the clergy privilege because the legal privilege does not exist solely to protect the Catholic version of confession. The only question, from a legal standpoint, is do the parties expect the communication to be confidential, and I think almost all confessions to bishops, branch presidents, etc. carry an expectation of confidentiality.

    The exceptions to confidentiality noted in the post are just that—exceptions. A bishop’s certification of a member’s status for church employment purposes does not break the expectation of confidentiality regarding the content of the communication. The question that BYU or any other Church entity asks requires a yes or a no. The bishop doesn’t explain why the member does not have a current recommend.

    Examples of people carelessly violating confidentiality are exceptions that prove the rule. If I confessed something to my bishop, I expect that the bishop might inform his counselors of some general instruction about eligibility for callings, but I certainly would not expect the bishop to discuss the details with anyone other than the Stake President. If a disciplinary council formed, then the council members (bishopric or High Council) would also know. But all of that would take place in a formal process according to Church policies, which is consistent with assertion of the privilege in American law. The fact that more than two people are involved doesn’t change the nature of the privilege, just as the attorney client privilege woulld include potentially dozens of lawyers, paralegals, and assistants who might be involved in a legal matter.

  5. When bishops are ordained to that office the stake president is supposed to ordain them as a common judge in Israel, specifically using that language. To me that sounds like someone might hear a confession and dictate the consequences, such as not taking the sacrament, losing your recommend, or 10 Hail Mary’s.

    On the other hand RS Presidents and EQ Presidents are explicitly told to help the bishop in helping the sinner. I’ve heard a Q15 say that EQ or RS presidents can help people overcome pornography (presumably a sexual sin). This is a reason LDS may not have a true private confession.

    Ultimately it seems like a legal issue if a confession has to be 100% private to meet the definition of a confession and qualifying for the priest-penitent privilege. I’m not sure secrecy is the defining attribute of whether someone merits the priest-penitent privilege. I could be totally wrong about this.

    From an optics point of view it seems like a no brainer to abandon the priest-penitent privilege for sexual crimes (and all crimes). The church would carry much less risk and shift it almost completely to a third party (the local bishop).

  6. Old Woman says:

    My husband and I were group leaders for the LDS addiction recovery program for our stake. The first step, admitting powerlessness and that life has become unmanageable, is the hardest. Confessing to oneself is the biggest challenge because it requires facing one’s own shame. To me, this is what the Savior meant by confession. It is a major stride in humility. At the time we served, participants were not required to reveal their particular problem. Very few did. To me, they had not come to terms yet with the humility necessary to bring about lasting change, Some may have already confessed to their Bishop, and some not. Confessing to another person can help remove some of that shame along with an understanding of the atonement. I believe there is a necessary place for confession in the church, but I don’t deny that the current practice is fraught with difficulties. The church needs to fix this!

  7. When I was younger (1970s and 1980s), during Sunday priesthood meetings the bishop would announce church disciplinary actions taken against members, and the reasons for those actions, to the assembled priesthood holders. Being a girl, I never got to hear this personally, but I remember my father telling me about it. That changed at some point obviously but an interesting memory as I read this post.

  8. Larry the Cable-Guy says:

    One small correction, and it’s not to your central concern, but I’ve seen the issue repeated in nearly every write-up in the past two weeks —

    While historically, and at the time the Bisbee case took place, the high council was fully involved in disciplinary councils, that is no longer the case. While the HC may become involved in rare instances (at the request of the member involved, or if the council is being held for one of the Stake Presidency, ect.), it seems that in recent years we’ve had revisions that will cast a smaller circle of awareness — though certainly still extending beyond one (the bishop).

  9. As far as bishops recommending that the sinner confess to the sinned against, I have heard it directly from a bishop that their handbook recommends NOT confessing to an adult that the confessor abused as a child because the adult may not remember and it would hurt them more to be told.

    But the problem that I saw many times as a therapist working with those adults was that the damage was there even if they did not remember the specific abuse. Finding out that they were abused gives them the clue the need to get into therapy and start the healing process. I had clients who were told of their abuse by an older sibling, mother, or cousin who saw it. It could also be told to them by a fellow victim who told them that their behavior was consistent with childhood sexual abuse. Some even found out from medical records that they were treated for a sexually transmitted disease. A few had their perpetrator confess to them. But knowing why they are cutting their arms, sexually acting out, or suicidal is really a big favor whether they remember being abused or not.

    According to the Bible, you are supposed to confess to the person you hurt, then to God. The Bible says nothing about clergy, Jewish, Catholic, or Mormon. Even our LDS scripture says nothing about your bishop.

    I do agree with Angela that confessing makes the sinner feel better. The problem is that confessing alone does not change the behavior. Only if the person is really repentant and willing to take full consequences and has confessed to the sinned against, does confessing help to change behavior. Example, I used to volunteer for suicide prevention hot lines. This was back in the days before caller ID or anything that told the number being called from. Twice I had guys (different guys) who called on a regular basis, confessing to child sexual abuse, and telling me that they were once again alone with the child and “couldn’t stop themselves from abusing again. The confession was purely to help them feel better, without suffering any consequences. These callers called for over a year and I was not the only volunteer they were talking to.

  10. You bring up some excellent point and have given me a lot to think about.
    We can’t use a rule/law only when it suits us. If the Church is going to view these interactions as confidential confessional then all acts associated with that need to follow the confessional narrative. If they won’t do that, then it’s not confessional and not protected as such. They can’t have their cake and eat it, too.
    Thank you for this article and the time and thought you put into it.

  11. seniorhalf says:

    A second hand story (true) but a good one –
    On a Fast Sunday, a new member gets up in Testimony meeting and confesses that he had a dream about having a sexual relationship with the RS President. I still think about that story almost every Fast Sunday.

  12. At worst the Bishop errored. But he certainly didn’t provide cover for a pervert father to molest his daughter!

  13. The Other Brother Jones says:

    Referring to Toad and Kara’s comments: I would love to see some analysis of the legal side, and the legal history of confessional secrecy. I imagine that the legal framework is based on the Catholic doctrines, and clearly we are not that. I am told there are 30 states that make clergy mandated reporters. I am not sure how that reconciles.

  14. Now I Know says:

    Another “clergy/penitent” disqualifier for LDS is the element of the diluted priesthood in LDS religion, really means something very different than the legal intent. Every 11 – 101 yr old male in this religion has their priesthood, considered at Priest at age 15. So the usage of “clergy” in LDS is far different than Catholics, for example, who have one or two priests per congregation.
    And that LDS “bishops” are just a temporary calling like teaching Sunday School, there is no legitimate training for clergy/penitent other than contact LDS law firm asap.
    I would say, having lived under both Catholic & Mormon umbrellas, the confidentiality is not equal, the training is not equal, the duration of authority is not equal. What an unfair burden to place on a dentist but to have to remain silent about a man sexually abusing his infant dau & 6 yr old daughter and making CSA porn. That dentist will immediately break confidentiality and call his Stk Pres, who will say call the law firm hotline. So penitent privilege does not exist == CALL the POLICE.

  15. The law of the clergy-penitent privilege is somewhat tangential to Angela’s fascinating post, but it has drawn some comments. I understand why many people want to know legal details about the privilege. It is an interesting topic. I don’t discourage anyone from looking at it.

    However, in one important sense, the legalities of the privilege are irrelevant to the current controversy. The issue is whether the Church has made morally correct choices in the way it deals with child abuse. Whether or not the Church acted within the bounds of the law has no bearing on the morality of choosing not to stop a person from abusing children.

    So if you want to know more about the clergy-penitent privilege, have at it. Just don’t make the mistake of assuming that the legal facts determine the moral realities.

  16. Anna: I somewhat agree with you when a person is confessing abuse that some kind of restitution and protection of victims is absolutely an integral part of the repentance process (although clearly was not done in the Bisbee case). The problem I see is when every sin requires a victim in the mind of the bishop, that they believe to be a “sin,” especially a sexual sin (which is probably 99% of spontaneous confessions) someone had to be harmed. In reality, some sins have “victims,” and some do not.

    Consider for example a teen girl confessing that after immense pressure, she had sex with her boyfriend (who was already sexually active with other partners and who is not a member of the church). The bishop may frame this as her needing to apologize to him for hurting his to someday join the church. A young person who looks at nudes may be asked to apologize to the person whose images they viewed, even if the person who sent the nudes was deliberate, and the recipient was alarmed and didn’t want to see them, but now feels dirty about it.

    The problem with all this is that most actual abusers do not confess, spontaneously or otherwise. They justify their acts in their own mind. They convince themselves that they are only compelled by circumstances or that they are the victim or that the other person deserves it (more common in domestic abuse).

    What is fairly common, though, is for an abused or sexually coerced person to confess to sexual sin without claiming that they are abused (or even understanding that they were), and in these cases, bishops will generally assume they have sinned. Even apostles are telling people who are rape victims to search their soul to see if they share some of the guilt, for crying out loud! (E. Scott) E. Cook referred to rape as “non-consensual immorality,” which is putting the label “immoral” on the person whose agency was violated.

    I know I’m preaching to the choir here. I just think that confessing to a bishop is fraught, and it’s far more likely that the ones who confess are not the ones who should. The ones who should typically won’t. That’s something I wish bishops understood. These are (mostly) impressionable teens, taking their religion seriously, not yet realizing that sometimes trusted leaders just don’t really have the ability to see these situations accurately.

  17. I’m not a lawyer, but it seems to me that the bishop gave up his priest-penitent defense when he divulged the information to the new bishop who replaced him. And since the man was excommunicated, I’m assuming the information was divulged to the stake presidency and the high council. Therefore, claiming that divulging it to legal authorities would break priest-penitent privilege seems a little silly.

  18. Yikes, there’s a lot of legal speculation that completely misses the mark here. The legal doctrine of clergy-communicant privilege has its roots in the sacrament of confession, but it has adapted to other applications over time. It is now governed almost exclusively by statute and varies quite a bit from state to state, but generally something doesn’t have to mimic Catholic practices to fall under the privilege, in part because the legal reasoning for the privilege doesn’t map directly to the Catholic reasoning.

    The clergy-communicant privilege (also known by several other names) is justified both by the Free Exercise Clause and the general belief that people are more likely to seek help when they have assurances of confidentiality. Again, although the rule varies often quite significantly from state to state, the analysis usually involves answering these questions: Was the communication between a person and their spiritual/religious adviser? Was the adviser acting in their capacity as a spiritual/religious adviser (and not, for example, as a friend or neighbor)? Did the communicant have a reasonable expectation that the communication would remain confidential? A communication remains confidential if it is shared with others within the religious organization to the extent necessary under the rules of the religious organization. (Again, this is a general summary, individual states can and do have different factors that come into play.)

    As has been pointed out, the application of privilege in the Arizona matter is secondary to other considerations. I want to further point out that privileged and confidential do not mean the same thing. It may be good policy to maintain evidentiary privilege under different circumstances than allowing or requiring someone to keep information confidential.

  19. When I was a Bishop and got the phone call about temple recommend status for a church employee or potential church employee, they were very careful to elicit only a yes/no answer. Even so, I still didn’t like being put in that sort of power over a person’s employment status (also applies to student status of church schools). That is one of several things I would change about church administration if I could.

  20. We ask bishops to provide pastoral care, to hear confessions, to maintain confidences, to administer church programs, to lead up the young men’s program, to conduct a myriad of interviews and report out in one way or another the results of those interviews, to report to authorities sometimes and not others, to manage the day-to-day and Sunday only temporal affairs of the ward, to respond to the stake president however he directs, and more. We expect him to be a magic man with a continual stream of revelation to know what to do and what to say in every situation. These responsibilities conflict in several ways. It is an impossible job. It does not work. I have suggestions for reform, but so long as we ask all these things of bishops the pieces of the puzzle will not fit. My advice to adult members (WIP, for real) is to leave the bishop alone, almost always almost everywhere.

  21. “Even apostles are telling people who are rape victims to search their soul to see if they share some of the guilt, for crying out loud! (E. Scott)”

    Except that isn’t what Elder Scott said in his talk that everyone cites when they make this accusation. You can read the talk for yourself here: https://www.churchofjesuschrist.org/study/general-conference/1992/04/healing-the-tragic-scars-of-abuse?lang=eng

    Specifically, he says “At some point in time, however, the Lord may prompt a victim to recognize a degree of responsibility for abuse. Your priesthood leader will help assess your responsibility so that, if needed, it can be addressed. Otherwise the seeds of guilt will remain and sprout into bitter fruit. Yet no matter what degree of responsibility, from absolutely none to increasing consent, the healing power of the atonement of Jesus Christ can provide a complete cure.”

    As a survivor of spousal abuse myself, this exactly describes some of what I went through. I spend a lot of time blaming myself for the abuse my ex-wife heaped upon me, and revisited everything in my head over and over again to identify everything I did to contribute to or cause her actions.

    It took me years to accept the fact that I wasn’t responsible for her choices and actions. What ultimately helped me was a kind bishop who pointed me at Elder Scott’s talk and reminded me that the Atonement isn’t only for repenting. It covers all of the pains and sorrows we experience in mortality. Reading Elder Scott’s talk in that context helped me to focus on applying the Atonement to heal my wounds and helped me to stop blaming myself for her actions. And if you read the whole talk, that is clearly the context in which he intended it to be taken.

  22. This is the problem: “from absolutely none to increasing consent”

    No one consents to abuse, and to suggest that they do in some degree shows a misunderstanding of what abuse is.

  23. A Turtle Named Mack says:

    What might still be underappreciated is the context for these confessions in a Bishop’s office. It’s generally more complex than a member simply going to the Bishop to tell him about something they did. In many instances, people are not going to their Bishop to confess a sin in order to receive absolution. This may be a critical feature of a Catholic confession but doesn’t apply in LDS settings. Bishops don’t absolve people from sin (don’t give me the “Judges in Israel” garbage, that’s not how it works). Many times, people divulge their sinful behavior while counseling with their Bishop as part of a process of repentance rather than a hope of gaining quick forgiveness (that seems like a flippant shot at the Catholic confessional – but that’s not my intent). Essentially, if you’re doing something you shouldn’t and are struggling to stop, or to manage the associated guilt, you go see your Bishop for help. That’s because we’ve turned our Bishops into counselors. They are woefully untrained for this (not undertrained, absolutely untrained!). Bishops simply have no business being counselors. But professional help is hard to come by, and can be quite expensive, and many (most?) members do not have the resources to acquire competent help. Bishops will tell you that they get it all – spiritual problems, sexual problems, financial problems, emotional problems, marital problems, substance use problems, physical health problems, career problems, legal problems (I’m sure Christian, and others, can add to that list). Bishops are free help to those who can’t access professional help, and they really shouldn’t be an option for any of those, other than spiritual problems. We should start being honest about the limitations of counseling with your Bishop – they mostly don’t know what they’re doing.

  24. A Turtle Named Mack says:

    Also, in the Bisbee case, I’m confident that if someone had gone to him and confessed that they were running an illegal financial scheme and that multiple adult members of the Ward were currently involved and being victimized, the Bishop would have reported him to the authorities or, at the very least, would have advised those members to avoid further financial dealings with that person. The Bishop would not have simply continued to counsel with that Brother while allowing him to continue to defraud Ward members.

  25. Loursat – I completely agree that the morality of the issue is the most important consideration from a ethical / moral standpoint. However, I believe that the legality of the issue is at the heart of this discussion. The church is has been hiding behind the law and ignoring the moral aspect. Otherwise they’d simply do away with the privilege and tell bishops to call the police.

  26. “I have heard it directly from a bishop that their handbook recommends NOT confessing to an adult that the confessor abused as a child because the adult may not remember and it would hurt them more to be told.”

    Please don’t make things up, it’s leaked and online if you really want to see.

  27. ianthomson says:

    Loursat makes one of the salient points in my mind. The frustrating thing for me has been listening to people defend a moral position, by somehow invoking the floor established by some rule or law. Just because it is legal, has never made it ethical or moral. Our concern, when it comes to religion especially, should almost always be the latter–really irrespective of the former.

    However, I have to keep making this point in my conversations and it is evident in the comments like Dsc makes above, because it appears to be lost on almost everyone. If something is deemed legally privileged, it has absolutely no effect outside of court. Period. Privilege is a legal fiction created and established to protect or prevent only what can be disclosed, relied upon, or revealed during court proceedings. There are no “privilege” laws that ever prevent someone from doing something outside of court. If they choose to disclose something outside of court, however, they should know that it will never be permitted to be used in court as evidence. Privileges are evidentiary rules, nothing more. A judge may be able to prevent someone from saying something within their courtroom because a privilege has been invoked, but the court’s power there does not extend beyond the walls of their courtroom. Confidentiality is another matter. Some professions (like law or medicine) will have ethical rules that govern their behavior even outside of court (eg. attorney’s rules of professional responsibility), or actual statutes (eg. HIPAA) that will prevent people from sharing or disclosing certain information without permissions. That is never what we are dealing with in this scenario. We neither license nor police our lay clergy in the Church. As a result, there is nothing the Church could do to a bishop for “violating” confidentiality other than release them and chastise them. That’s it. Legal privileges are court rules, not real world rules. Confidentiality is most often a social and cultural norm or convention. That’s it. Can we break norms and conventions when the circumstances call for it? Absolutely. We should be careful, but notions of confidentiality are nothing more than a call for caution.

  28. I think the comments from Ian and Dsc are useful in evaluating the statement the Church released last night. In a roundabout way, the statement also confirms Toad’s idea that the legal part of this is important to understand.

    Like the previous statement, the new one is crafted to kick up a lot of self-righteous dust while distracting us from the key question that the Church is not answering.

    (It hurts to write that sentence. I hate that Church spokespersons are acting this way. At every step, the Church is responding as if litigation attorneys are in charge and their highest priority is to run up the billable hours. Deny, fight, accuse. It’s doing so much damage.)

    There are many things in the Church’s new statement that need to be parsed, but the key question is whether Arizona law prohibited the bishops from reporting. The Church’s statement makes two claims: 1) the abuser refused to report himself to the police and refused to give the bishop permission to make a report; and 2) reporting a confession of abuse can be “prohibited by law because the confession is ‘owned’ by the confessor.”

    The clear implication is that the Arizona bishops did not report the abuser because the law prohibited reporting. But here is where the Church’s statement gets really slippery. The statement implies that the bishop was legally constrained, but it doesn’t come out and say it. It only says that in the Arizona case the abuser did not give the bishop permission to report, and that in some unspecified situations the law might prohibit a bishop from reporting without the abuser’s permission.

    So what’s the bottom line? As far as I can see, Ian’s general explanation is correct in Arizona. No Arizona statutes create an evidentiary privilege or an obligation of confidentiality that would prevent a bishop from reporting a confession of child abuse. The confessor’s “permission” is legally irrelevant. If the bishop chose not to report, that’s his decision and he needs to own it. If the Church told the bishop not to report, that was the Church’s decision and the Church needs to own it.

    If I have missed something in the Arizona statutes, I’d be grateful to anyone who could show me.

  29. Kristine: ‘This is the problem: “from absolutely none to increasing consent”

    No one consents to abuse, and to suggest that they do in some degree shows a misunderstanding of what abuse is.’

    Except Elder Scott doesn’t say that a person consented to the abuse. He talks about the person feeling guilty for actions that may have been consensual leading up to the abuse.

    From my own, personal experience, I know that it’s far more complicated than “No one consents to abuse”. Elder Scott was speaking about how the abused individual may see themselves as partially responsible for their abuse. I know I did. With time and healing I recognize that I made mistakes in my marriage, but that those mistakes didn’t justify my ex-wife’s abuse. But it was a hard and painful process to get to that point, and for a lot of that process I blamed myself for a lot of her actions and choices.

    As I looked back, I could see warning signs that I missed about her. After my divorce, I had several friends tell me that they thought I was making a mistake marrying her (though none of them thought to tell me that before the wedding). For a good long while, I felt like I couldn’t trust myself anymore, let alone anyone else. I constantly beat myself up over my perceived mistakes and flaws.

    It was through resources like Elder Scott’s talk and the support of my Bishop that I was able to work through those feelings and allow my pain and guilt to be swallowed up in the Atonement. It allowed me to find healing, and that healing prepared me to meet the woman with whom I now have an amazing family, and a much stronger marriage. Through that process, I was able to accept my own flaws and work to improve without blaming myself for or being held back by my ex-wife’s actions, which has made me a much better husband and father today.

  30. Chilly Gravy says:

    Trial lawyer here (who has also had to work out, with the state bar where I practice, whether an admission of abuse could be reported, or whether the attorney/penitent privilege required me to stay silent). The priest/penitent privilege (like all privileges) has several technical requirements that must be satisfied for the privilege to apply and prevent disclosure. It is held by the penitent, and only the penitent can waive it. So, if a bishop decides to blab without permission from the penitent, that doesn’t waive the privilege. However, if the penitent understands that what he shares with his bishop WILL be disclosed to third parties (a la, BYU worthiness malarky) then the communications won’t be privileged because there is no expectation of privacy.

    However, the presence of ANY third parties in the communication will also mean that the privilege does not apply. Thus, in the Arizona case, where the pedophile discussed his abuse with his bishop while the wife was present (which seems to have happened on multiple occasions), there is no privilege and the bishop(s) should have RUN to the phone and reported it. If the Kirton|McConkie lawyers said anything to the contrary to the bishop, they committed malpractice and should be fired.

    Legal privileges hide the truth, which has a societal cost, so they should only apply where the expectation of privacy outweighs the cost of truth hiding. In Mormonism, I think it’s an open question whether the priest/penitent privilege serves much of a purpose where, as noted above, anyone who thinks the confessional seal has much weight in Mormonism, is either naive or sorely mistaken. Their sins will be discussed with stake presidents, mission presidents, hinted at in ward counsel, and put on full display when the sacrament is passed, so it is unclear what the purpose of the privilege really is.

  31. Chilly, you’re wrong on several counts. First, in most states, the privilege is held by the penitent, but in some it is held by the clergy. In Arizona, where this incident occurred, it is held by the penitent.

    Second, the presence of a third person doesn’t nullify privilege, but the presence of a foreign third party does. Arizona case law explicitly holds that a man confessing to a Latter-day Saint bishop in the presence of his wife does not nullify the privilege because the wife’s presence was necessary to further the purpose of the communication.

    Maybe don’t be so quick to decide whether an attorney committed malpractice…

    Loursat, maybe disclosure to police was the best approach in this case, but I don’t think that you can categorically assume that. I think the following counterfactual is plausible enough to warrant thought: Let’s say that the bishop under these circumstances immediately reported to police. The bishop has heard a confession of impropriety regarding a child, but that confession is vague and involves past conduct. The bishop reports that information to law enforcement, who go check in on the family. The parents deny any impropriety, and the police, with only evidence that cannot be used in court due to privilege, have no choice but to close the investigation. The parents cease all communication with the bishop and continue to abuse/allow abuse to continue. Abusive parent takes out his rage and fear at being suspected on the child and ramps up efforts to cultivate fear as a method of keeping the abuse secret.

    Now, it’s not guaranteed that that’s how things would play out, but the tendency to believe this was an obvious call relies on hindsight and information that the bishop did not possess at the time. It’s possible that the bishop and/or the helpline made huge mistakes, but that’s not clear based on the facts that we know.

  32. senatorgravett says:

    Wife’s presence was necessary to the confession and therefore didn’t destroy the privilege? Color me skeptical I wanna see the Pacific Reporter cite on THAT one.

  33. Observer,
    As someone who has had a superficially similar issues, I just want to tell you that everyone makes mistakes. Most marriages handle it without abuse. And no, in spite of your mistakes, you did not consent to abuse. However, I also want to tell you that it is hard to get out and that you did is really wonderful. I get the feeling that we don’t usually agree on much, but I want you to know that I’m proud of you for getting out of an abusive situation. It ain’t easy.

  34. State v Archibeque, 223 Ariz. 231 (Ariz. App.1 2009)

  35. senatorgravett says:

    Well, I’ll be d****d, you learn something new every day. I stand corrected. But….I specifically asked for the Pacific Reporter, sir/ma’am.

  36. As I mentioned on another post both my wife and I are abuse survivors and have spent years dealing with the effects, emotionally and spiritually. At the risk of derailing this thread I have to respond to previous comments.

    There is so much that is wrong in Scott’s talk. It should not be used as a guide for survivors. Due to time limitations, and my own well being, I will have to limit my comments to a few points.

    “Talk to your bishop in confidence.”

    This thread and other recent posts on BCC indicate there’s not a whole lot of confidentiality in church leadership.

    “I solemnly testify that when another’s acts of violence, perversion, or incest hurt you terribly, against your will, you are not responsible and you must not feel guilty.”

    Sounds good but then he says:

    “The victim must do all in his or her power to stop the abuse.”

    Imagine an adult trying to come to terms with being sexually abused as a teenager. A child has no power. How does a survivor of any age determine they have done in everything their power to stop the abuse?

    “Most often, the victim is innocent because of being disabled by fear or the power or authority of the offender. At some point in time, however, the Lord may prompt a victim to recognize a degree of responsibility for abuse.”

    This statement is horrific. Abuse is *always* about a power differential. Most often? That implies there are some situations where the survivor bears some responsibility for being abused. To say this heaps guilt and shame on the survivor. The survivor *never* bears responsibility for being abused. No one deserves to be abused, no one asks to be abused. This is akin to saying someone deserved to be raped because of what they were wearing.

    “Leave the handling of the offender to civil and Church authorities.”

    Yet here we are, discussing whether bishops should/can report abuse to civil authorities. In addition, many survivors can’t report abuse because of age or their abuser has threated them with things such as the family breaking up, additional physical harm, or worse if the abuse is reported.

    This talk should be tossed in a garbage can, right next to Miracle of Forgiveness.

  37. Observer,

    I’m really glad you were able to read the talk that way, and that your bishop was supportive as you worked through those questions. It’s very common for victims of abuse to blame themselves, and, to the extent that Elder Scott’s talk can be read as urging them to interrogate those feelings of guilt, then I suppose it could be useful.

    However, I do not think that is the only, or even the most obvious interpretation of that text. As Greg J. points out, it can easily be read in a terribly destructive way, as well, and I therefore tend to agree with him that we’d be better off throwing it out and trying for something that more clearly assigns responsibility for abuse where it belongs.

  38. “However, I do not think that is the only, or even the most obvious interpretation of that text. As Greg J. points out, it can easily be read in a terribly destructive way, as well, and I therefore tend to agree with him that we’d be better off throwing it out and trying for something that more clearly assigns responsibility for abuse where it belongs.”

    The problem with this approach is that you can take almost any talk or text (even the words of Christ himself in the scriptures) and read it “in a terribly destructive way”. That is especially true when you zero in on one part of a text without looking at the context provided by the rest of the text.

    It’s important to look beyond how a text could be read, and ask yourself how the author or speaker intended it to be read. When there are two competing interpretations, you should also show charity towards the author and not assume that they intended a harmful interpretation, unless there is clear evidence that was their intent.

    As an example from Elder Scott’s talk, he spoke about the need to forgive your abuser. You could interpret that in two ways: either letting them off the hook for their abuse, or letting go of feelings like anger or hatred towards them. Elder Scott clearly intends the latter interpretation, but you can focus on individual statements that would support the former. It’s not fair to Elder Scott to criticize him for the former interpretation when his intent was the latter one.

    When dealing with any talk, especially on a sensitive subject like this, it’s best to remember the words Abraham Lincoln used in his second inaugural address: “With malice toward none; with charity for all”.

  39. it's a series of tubes says:

    Well, I’ll be d****d, you learn something new every day. I stand corrected. But….I specifically asked for the Pacific Reporter, sir/ma’am.

    221 P.3d 1045

    :)

  40. senatorgravett says:

    I just read that the judge ruled the privilege waived when the pedophile posted his acts on the internet. I would need to read the minute order but, honestly, unless he posted to the internet the specific acts he also made his confession about, I kind of think the ruling will be reversed if the CoA is willing to consider the intermin appeal the church will absolutely take up.

    Although, again, I seriously wonder why the church is fighting this particular fight. The PR cost to the church (whether rightfully or wrongfully so) is guaranteed to be higher than whatever the settlement value of the specific cases at hand are and, maybe I’m too credulous, but it seems unlikely that there’s a pipeline of thousands of un-litigated child abuse cases (a la Catholic church scandal) worth billions of dollars that they’re worried about. It seems like buying their peace would make the most sense and that this appetite for litigation may be an unintended, and unfortunate consequence of having so many attorneys (inc. numerous K|M alumni) in the high ranks of church leadership.

  41. Senatorgravett, as a legal matter, I would also be very surprised if the waiver finding is upheld because it just seems to so clearly conflict with longstanding precedent on privilege generally (not just clergy privilege). You don’t waive privilege by communicating something that you also happened to communicate in a privileged communication—you waive it by discussing the actual privileged communication with a foreign third party.

    As for the Church’s appetite to litigate it, it’s important to remember that the Church’s lawyers (both internally and at KM) in some respects see themselves as protecters of religious liberty and issues affecting religious associations generally. Somewhere, I’m certain that the Church’s attorneys are having a discussion about how they can help shape the law both for the Church as an institution and for all religious organizations. Ultimately, I think this holding delays settlement because the Church would otherwise want to settle this to avoid litigation costs.

  42. Dsc, that was my initial take, too. But it looks like Arizona courts have, for a long time, viewed any communication about the privileged conduct as a waiver of privilege. https://casetext.com/case/church-of-jesus-christ-v-superior-court

  43. Observer,

    I printed the talk (it came out to 6 pages) and gave it to my wife to read. On the first page alone she flagged 4 problems. Due time, space, and our sanity she could not go further. I don’t think this is the time and place to get into the nitty gritty.

    Yes, there are some good thoughts in the talk, and it would have been acceptable, even and helpful if about half of it were redacted. In our experience with abuse, and decades of therapy, there is little overall we can find charitable, especially with even hinting of blaming the victim and sharing any responsibility for being abused.

    Some survivors my find something in it useful. We did not. We set boundaries for ourselves and this talked crossed them. We would not recommend it for reading or discussion in any setting by survivors. My wife said if she would have read it years ago, she would have killed herself.

    I will now bow out of discussing Scott’s talk.

    Carry on all.

  44. senatorgravett says:

    I agree, the church’s lawyers absolutely see themselves as defenders of religious liberty. I guess I think it would be more prudential, in lawsuits actually involving the church, and which have a detrimental effect on the church’s image and reputation, not to die on the hill of religious practices primarily from other churches, or that are fairly tangential to the LDS church’s actual religious practices and beliefs. As noted above, the LDS church’s views/practices regarding the confessional really is that it’s confidential, not inviolate, and has kind of a squishy place in the atonement theory any way (is it just for sexual and WoW sins, or isn’t it?).

    Until bishops/stake presidents who blab to their wives, counselors, and the ward counsel start getting excommunicated for doing so, and until the outward consequences of confession (i.e. sacrament restrictions and temple restrictions) are eliminated, it seems like, for the LDS church, the secrecy of priest/penitent privilege is much more important in the courtroom than it is in the Bishop’s office. That being the case, let’s let the Catholics fight this fight, and the Mormons can focus on nuclear/hetero family and land zoning discrimination issues.

  45. Sam, I see the language where you could get that conclusion, but I’m not sure it goes as far as that. The court noted, “Ray revealed to the police not only the fact, but the substance of his communications with Standage, Bailey, and Taylor.” The revelation in that case wasn’t just the facts that he also happened to discuss with the police; he actually told the police who he had talked to and at least some of the content of what he had said in those conversations.

  46. Yeah, Dsc, I’m absolutely not an expert in AZ law, and I could be interpreting it wrong. But at the very least, the case provides support for the judge’s ruling–it’s not unreasonable to read it as saying disclosure to third parties eliminates the privilege.

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