The Clerical Child Abuse Thread (merged)

aloyisious

EirWatchr wrote: »

That is not what was said. His quotes - correct, and in context - were about the inviolable seal of the confessional, not acts of sexual abuse.

"I believe [confession] is an absolute sacrosanct communication of a higher order that priests by nature respect"
"We are admitting a communication with God is of a higher order,” he said. “It is a sacred trust. It’s something those who are not Catholics find hard to understand but we believe it is most, most sacred and it’s very much part of us."

https://www.theguardian.com/australia-news/2017/aug/15/melbourne-archbishop-says-hed-rather-go-to-jail-than-report-child-abuse-heard-in-confession

Ta for the link. The all important part of it seem's [from my POV} to be this: But if someone were to confess they had been sexually abused or they knew of someone who had been, Hart said it would be adequate to encourage them to tell someone else outside of confession. For example, he would encourage a child to tell a teacher, who are already mandated under law to report.....

I'll take time to consider that part to see how it get's around the confessional angle because the child would possibly/probably be asked "did you tell anyone else" leading the police to the confessor-priest to see if he had relevant info or evidence towards prosecution of the offending priest..... The advice would have to be very nuanced in language to get over the confessional hurdle but still legit and understandable to the child. I know children do have a better grasp of truth and what they see due to their unadulterated minds.

It can't be very easy to be a priest with knowledge of an active serial child abuser on his mind and being unable and constrained by a religious edict [edit - OR PRACTICE] to expose the abuser to civil action and restraint, knowing that his advice to the victim will result in a visit by the police. There [IMO] should by this time be a sorted-out process in official standing within the various churches, incl the RC one, to get over that hurdle given the decades the churches have kept the offensive knowledge hidden from public view allowing offenders to keep breaking their vows to the church and their creator.

That last is what has broken the back of believers; that the church deliberately went along with the criminal actions of offending priests contrary to the best practice of protecting the innocent in this life. Plain and simple honesty was thrown away by the churches due to an over-the-ages theological thought process leading them astray from their actual duty to their god and the faithful.

It is notable that the pope can lift any automatic or church imposed sanction on any priest who reveals the identity of a sinner made known to him under the seal of confession....................................................

Seal of the Confessional in the Catholic Church
From Wikipedia, the free encyclopedia.
For the similar doctrine in other denominations of Christianity see Seal of the Confessional (disambiguation).

Canon 21 of the Fourth Council of the Lateran (1215), binding on the whole church, laid down the obligation of secrecy in the following words:

Let the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner: but if he should happen to need wiser counsel let him cautiously seek the same without any mention of person. For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office but that he shall also be sent into the confinement of a monastery to do perpetual penance.

— Hefele-Leclercq, Histoire des Conciles at the year 1215; Mansi or Harduin, "Coll. conciliorum"
Notably, neither this canon nor the law of the Decretum purports to enact for the first time the secrecy of confession.[3] The 15th century English canonist William Lyndwood speaks of two reasons why a priest is bound to keep secret a confession, the first being on account of the sacrament because it is almost (quasi) of the essence of the sacrament to keep secret the confession.[4][clarification needed]

In practice[edit]
According to Roman Catholic canon law, "The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason." The confessor is always an ordained priest, because in the Catholic Church only ordained priests can absolve sins; lay confession is not recognized. Any person who overhears a confession is likewise bound by the seal.[5]

Priests may not reveal what they have learned during confession to anyone, even under the threat of their own death or that of others. For a priest to break secrecy would lead to a latae sententiae (automatic) excommunication, the lifting of which is reserved to the Holy See – in fact, to the Pope himself.........

Peregrinus

aloyisious wrote: »

Ta for the link. The all important part of it seem's [from my POV} to be this: But if someone were to confess they had been sexually abused or they knew of someone who had been, Hart said it would be adequate to encourage them to tell someone else outside of confession. For example, he would encourage a child to tell a teacher, who are already mandated under law to report.....

I'll take time to consider that part to see how it get's around the confessional angle because the child would possibly/probably be asked "did you tell anyone else" leading the police to the confessor-priest to see if he had relevant info or evidence towards prosecution of the offending priest..... The advice would have to be very nuanced in language to get over the confessional hurdle but still legit and understandable to the child. I know children do have a better grasp of truth and what they see due to their unadulterated minds . . .

You raise an interesting point here.

Leave aside child sexual abuse for a moment. In general, if a priest in confession hears somebody confess to committing a crime, or talk about being the victim of one, he’s aware that there may be a police investigation at some point, and it’s possible in that context that the police might come to him, and (obviously) he’ll decline to say anything.

That’s not a problem at the moment, since the priest (just like everybody else) is not obliged to assist the police with their enquiries. Except in very limited circumstances, everybody is free to decline to answer police questions about anything.

But, if there’s a reporting obligation imposed on the priest, the dynamic changes. Now, if there’s a police investigation and the police come to him, he’s in a sticky position, legally. In fact, he’s in a sticky position even if the police don’t come to him; he’s supposed to go to them.

In other words, by making this change in the law, despite our good intentions we’re actually altering the incentives so that if a priest hears about this in confession, for his own good he would be better off if there were no police investigation. Might this make him less likely to tell or encourage the penitent to go to the police?

I’d hope not. I’d hope the priest would advise the pentitent without regard to his own interest or well-being. Still, the law change does make it slightly more difficult for him to do that. And we have to ask whether this is likely to make children safer.

And this opens up a wider question, which is the role and usefulness of mandatory reporting requirements in the first place. There’s some evidence that widely-drawn reporting requirements are either of no value, or positively harmful, when it comes to effective protection of children. Which means the first question we have to ask of any proposed reporting requirement is - what good will it do in practice?

To put this in context, the reason the whole question of priest/penitent privilege comes up is because the Australian Royal Commission into Institutional Responses to Child Sexual Abuse has recommended that people associated with institutions - directors, staff, volunteers - should have a legal obligation to report child abuse within the institution - currently, they mostly don’t - and there should be no priest/penitent privilege exemption to that obligation. This seems like quite a tightly-drawn reporting requirement; it only covers cases of institutional sexual abuse, and it only applies to people connected with the institution. (And the proposed reporting obligation is limited in other ways too, but never mind that.) I think this means that if a priest is attending at the institution for the purpose of ministering to people there, and in that capacity he hears confessions and is told of sexual abuse, he will be obliged to report it. But if a priest is hearing confessions in a city centre church, and he hears of child sexual abuse in an institutional context, he won’t be obliged to report it; he’s not someone connected with the institution.

(Note that so far all we have are recommendations of the Royal Commission. The government hasn’t responded to the recommendations yet, and we’re a long way from having any draft legislation published. So the shape of this proposal could yet be changed or clarified.)

aloyisious

Peregrinus wrote: »

You raise an interesting point here.

Leave aside child sexual abuse for a moment. In general, if a priest in confession hears somebody confess to committing a crime, or talk about being the victim of one, he’s aware that there may be a police investigation at some point, and it’s possible in that context that the police might come to him, and (obviously) he’ll decline to say anything.

That’s not a problem at the moment, since the priest (just like everybody else) is not obliged to assist the police with their enquiries. Except in very limited circumstances, everybody is free to decline to answer police questions about anything.

But, if there’s a reporting obligation imposed on the priest, the dynamic changes. Now, if there’s a police investigation and the police come to him, he’s in a sticky position, legally. In fact, he’s in a sticky position even if the police don’t come to him; he’s supposed to go to them.

In other words, by making this change in the law, despite our good intentions we’re actually altering the incentives so that if a priest hears about this in confession, for his own good he would be better off if there were no police investigation. Might this make him less likely to tell or encourage the penitent to go to the police?

I’d hope not. I’d hope the priest would advise the pentitent without regard to his own interest or well-being. Still, the law change does make it slightly more difficult for him to do that. And we have to ask whether this is likely to make children safer.

And this opens up a wider question, which is the role and usefulness of mandatory reporting requirements in the first place. There’s some evidence that widely-drawn reporting requirements are either of no value, or positively harmful, when it comes to effective protection of children. Which means the first question we have to ask of any proposed reporting requirement is - what good will it do in practice?

To put this in context, the reason the whole question of priest/penitent privilege comes up is because the Australian Royal Commission into Institutional Responses to Child Sexual Abuse has recommended that people associated with institutions - directors, staff, volunteers - should have a legal obligation to report child abuse within the institution - currently, they mostly don’t - and there should be no priest/penitent privilege exemption to that obligation. This seems like quite a tightly-drawn reporting requirement; it only covers cases of institutional sexual abuse, and it only applies to people connected with the institution. (And the proposed reporting obligation is limited in other ways too, but never mind that.) I think this means that if a priest is attending at the institution for the purpose of ministering to people there, and in that capacity he hears confessions and is told of sexual abuse, he will be obliged to report it. But if a priest is hearing confessions in a city centre church, and he hears of child sexual abuse in an institutional context, he won’t be obliged to report it; he’s not someone connected with the institution.

(Note that so far all we have are recommendations of the Royal Commission. The government hasn’t responded to the recommendations yet, and we’re a long way from having any draft legislation published. So the shape of this proposal could yet be changed or clarified.)

The situation you've posited ref reporting or not reporting knowledge [post or ante] of a crime becoming a civil statutory obligation would probably lead a confessor-priest into a more cautioned approach to advice to the person telling him of an offence done to him/her.

I don't know if any priest would feel more burdened by the additional sanction likelyhood, seeing as how the priest might or does have the same belief as the archbishop regarding canon law on confession being of a higher authority than civil [man-made] law.

One thing I was vexed at in his statement was the bit about non-catholics not understanding confession, sic; in the RC church:....... Most of the lapsed RC christians who lost faith in or walked away from the RC religion [as fashioned by the curia in the Vatican and senior churchmen] did [and do] understand that version of confession. In the light of that part of the archbishop's statement, it [IMO] is worth to keep in mind that canon law, despite its antecedent, is a man-made structure, the same way that civil law is man-made with antecedent, both built on perception and understanding of their antecedents. Confessional canon law has been the item of discussion at conferences over the millennia since the christian religion was founded and has been altered by conference decision.

Ref the situation any priest hears a confession in, I imagine that the canon law strictures apply no matter where or what the location or establishment the confession took place at, relative to a connection a priest might or might not have there at the time of the confession, hospital as against parish church. Others looking at this discussion with practical application experience might be able to help giving chapter and verse; but without breaking sanctity please

Peregrinus

aloyisious wrote: »

The situation you've posited ref reporting or not reporting knowledge [post or ante] of a crime becoming a civil statutory obligation would probably lead a confessor-priest into a more cautioned approach to advice to the person telling him of an offence done to him/her.

I don't know if any priest would feel more burdened by the additional sanction likelyhood, seeing as how the priest might or does have the same belief as the archbishop regarding canon law on confession being of a higher authority than civil [man-made] law.

My initial feeling here is that a law requiring priests to report what they hear in confession will be largely ignored by those to whom it applies, and will be all but unenforceable.

As a corollary to that, I doubt that it will significantly influence the counsel offered by confessors.

(As a second corollary, I question the wisdom of introducing such a law in the first place.)

aloyisious wrote: »

Ref the situation any priest hears a confession in, I imagine that the canon law strictures apply no matter where or what the location or establishment the confession took place at, relative to a connection a priest might or might not have there at the time of the confession, hospital as against parish church. Others looking at this discussion with practical application experience might be able to help giving chapter and verse; but without breaking sanctity please

Yes, the canon law rule is uniform; absolute assurance of total confidentiality, regardless of the circumstances in which the confession is heard. It’s the civil law disclosure requirement which will apply (if I read the recommendations correctly) in some circumstances but not in others.

You’re right to point out that canon law can be changed but, in this particular respect, I doubt that it will be. While there’s no general requirement to report a crime, there used to be a general requirement to report a felony (and there may still be this or a similar requirement in many countries). Canon law (which in this respect is decided centrally and applies uniformly throughout the church) has never provided an exception to the seal of the confessional to accommodate any reporting requirement imposed by civil law, and I don’t imagine that an exception will be created here.

aloyisious

Peregrinus wrote: »

My initial feeling here is that a law requiring priests to report what they hear in confession will be largely ignored by those to whom it applies, and will be all but unenforceable.

As a corollary to that, I doubt that it will significantly influence the counsel offered by confessors.

(As a second corollary, I question the wisdom of introducing such a law in the first place.)


Yes, the canon law rule is uniform; absolute assurance of total confidentiality, regardless of the circumstances in which the confession is heard. It’s the civil law disclosure requirement which will apply (if I read the recommendations correctly) in some circumstances but not in others.

You’re right to point out that canon law can be changed but, in this particular respect, I doubt that it will be. While there’s no general requirement to report a crime, there used to be a general requirement to report a felony (and there may still be this or a similar requirement in many countries). Canon law (which in this respect is decided centrally and applies uniformly throughout the church) has never provided an exception to the seal of the confessional to accommodate any reporting requirement imposed by civil law, and I don’t imagine that an exception will be created here.

Just an oddball [as it were] thought, I suppose a priest who has heard a confession in which a victim has related an incident or incidents of abuse to him/her might be able to formulate and discuss a purely hypothetical situation with the abuser to drop a hint on a "no names, no packdrill" basis, with a subtle warning of what could happen if anything further was to happen. There'd be nothing against any law in that or offering advice to a fellow parishioner.

Peregrinus

I doubt that a priest would do that. This risks identifying the victim who has spoken to him - there may be only one victim (every abuser must have a first victim) or only one victim who might plausibly have spoken to the priest. And this of course would breach the seal of the confessional and put the victim in potential danger. Plus, if what we are told about the nature of paedophilia is true, speaking the abuser is not going to change his behaviour, unless perhaps he changes it to make detection less likely.

volchitsa

IMUIC the problem is not victims confessing their abuse so much as abusers who, sometimes repeatedly, confess their sins (crimes), get absolution and are "good to go" again.

Peregrinus

That may be the problem, but the solution recommended by the Royal Commission doesn't distinguish between information obtained in confessions by abusers, information obtained in confessions by victims or information obtained in confessions by third parties who have come to know of or suspect abuse.

If only because each abuser appears to have many victims, you'd expect that a priest is more likely to hear such things from victims than from abusers, though of course we don't really know how often such things come up. And if the issue is the protection of victims, it's hard to see why the reporting obligation should depend on who the confessor hears it from.

In other professions on which child abuse reporting obligations have been imposed either by law or by professional requirements, I think the reporting obligations apply equally whether the professional hears it from a client who is a perpetrator, a victim or a third party. I wouldn't expect any legal requirement applying to priests to be different in that regard.

aloyisious

I'd be ever so hopeful that a priest might advise the victim to tell his/her parents of the incident/s and say that he would like them to call on him if they so chose. The priest would make it plain at any such meeting that he could not break the seal or sanctity of what was actually said during the confession but he could make it clear that he had no reason to disbelieve what the victim said.

The way would be clear for the parents, and victim, to go to the police with a fresh face. The priest could only provide a form of corroboration on what the victim may have told the police he/she told him. It wouldn't be direct 1st hand evidence [I actually saw the alleged incident] and being from a source or form that the courts have in the past given privilege to, following a long set precedent, a court could feel free to follow that precedent.

It'd be interesting to see if a law was passed in which it was made clear to any adult informed of a sexual assault claim that he/she was under a legal obligation to report the allegation to the police for investigation. That would be making it clear to religious law-setting authority that civil law would take precedent in civil court over canon law. I'd imagine that during the debate process in parliament the religious would have their civil agents there making sure the religious interest was promoted to the fullest legal extent possible.

Peregrinus

aloyisious wrote: »

I'd be ever so hopeful that a priest might advise the victim to tell his/her parents of the incident/s and say that he would like them to call on him if they so chose. The priest would make it plain at any such meeting that he could not break the seal or sanctity of what was actually said during the confession but he could make it clear that he had no reason to disbelieve what the victim said.

The way would be clear for the parents, and victim, to go to the police with a fresh face. The priest could only provide a form of corroboration on what the victim may have told the police he/she told him. It wouldn't be direct 1st hand evidence [I actually saw the alleged incident] and being from a source or form that the courts have in the past given privilege to, following a long set precedent, a court could feel free to follow that precedent.

What the priest has been told in confession generally wouldn't be admissible evidence in a criminal trial. It's hearsay. The point of a reporting obligation isn't to assist (directly) in the conviction of child abusers, but in their detection.

aloyisious wrote: »

It'd be interesting to see if a law was passed in which it was made clear to any adult informed of a sexual assault claim that he/she was under a legal obligation to report the allegation to the police for investigation. That would be making it clear to religious law-setting authority that civil law would take precedent in civil court over canon law. I'd imagine that during the debate process in parliament the religious would have their civil agents there making sure the religious interest was promoted to the fullest legal extent possible.

The problem with a very widely drawn reporting obligation - everybody must report everything they hear - is that experience has shown that, in terms of child protection, it's useless, or even counterproductive. The authorities are deluged with a flood of reports in which the ones they need to take seriously are hard to discern, and they either lack the resources to process them properly or, if they have the resources, they could be deployed more effectively in other ways. Meanwhile people who have made reports feel they have done what they should and it's all in the hands of the authorities now, and they often don't take any further action that might provide more effective protection to children.

The trend with mandatory reporting obligations now is to frame them carefully and target them specifically, based on rigorous thought about what will actually be effective in enhancing child protection.

As for the relative priorities of civil and canon law, all priests are perfectly aware that, if civil law imposes a reporting requirement on them, it will be no defence in the civil courts to say that canon law forbade them from making a report. They'll have to make a conscientious decision about which obligation to obey. This isn't a novel idea to them. It must already be the case that priests hear things in confession that they would dearly like to take action about, and they must feel a tension between the requirements of conscience and the demands of canon law. I seriously doubt that, in relation to child abuse, this near-unenforceable civil law reporting obligation is going to make very much difference to the tensions and dilemmas priests already experience.

There are already countries which have mandatory reporting obligations with no exemption for confessional situations. (Ireland is one of them.) So what the Australians are considering, while different in some details, is not unprecedented. I don't get the impression that experience in those other countries suggest that the introduction of such obligations leads to many reports from confessors.

MrPudding

Peregrinus wrote: »

What the priest has been told in confession generally wouldn't be admissible evidence in a criminal trial. It's hearsay. The point of a reporting obligation isn't to assist (directly) in the conviction of child abusers, but in their detection.

Are you sure? The priest would be testifying as to what he heard, not what someone told him they had heard... The confessor is the perpetrator, not a witness, so surely that is not hearsay?

Hearsay is a bit of a minefield, but there are exceptions (if this even was hearsay, which I don't think it is...).

MrP

Peregrinus

MrPudding wrote: »

Are you sure? The priest would be testifying as to what he heard, not what someone told him they had heard... The confessor is the perpetrator, not a witness, so surely that is not hearsay?

Hearsay is a bit of a minefield, but there are exceptions (if this even was hearsay, which I don't think it is...).

MrP

The priest's evidence as to what what he heard in the confessional is hearsay. "I saw Mr Pudding take a right turn" would be direct evidence that Mr Pudding took a right turn. "Mr Pudding told me that he took a right turn" or "Peregrinus told me that Mr Pudding took a right turn" would both be hearsay evidence on the same point.

As you say, hearsay is a bit of a minefield, and there are plenty of exceptions to the hearsay rule, one of which covers confessions/admissions against interest, so you could probably have a ding-dong legal row about the admissibility of evidence from Fr X that Mr Y confessed to him that he, Mr Y, had sexually abused a child. But evidence from a priest that a child had told him that Mr Y had abused him, the child, would certainly not be admissible.

But, as I say, I don't think that mandatory reporting requirements are all about assembling admissible evidence to use in prosecutions. They're about identifying abusers to the authorities so that action can be taken, investigations launched, evidence assembled, etc.

MrPudding

Peregrinus wrote: »

The priest's evidence as to what what he heard in the confessional is hearsay. "I saw Mr Pudding take a right turn" would be direct evidence that Mr Pudding took a right turn. "Mr Pudding told me that he took a right turn" or "Peregrinus told me that Mr Pudding took a right turn" would both be hearsay evidence on the same point.

As you say, hearsay is a bit of a minefield, and there are plenty of exceptions to the hearsay rule, one of which covers confessions/admissions against interest, so you could probably have a ding-dong legal row about the admissibility of evidence from Fr X that Mr Y confessed to him that he, Mr Y, had sexually abused a child. But evidence from a priest that a child had told him that Mr Y had abused him, the child, would certainly not be admissible.

But, as I say, I don't think that mandatory reporting requirements are all about assembling admissible evidence to use in prosecutions. They're about identifying abusers to the authorities so that action can be taken, investigations launched, evidence assembled, etc.

OK, I am pretty sure you are wrong here, though I am coming from an English law perspective, not Irish, but I believe they are similar…

As I alluded to in my previous post, hearsay does not apply to testimony of things said by the accused from the person they said those things to. It can be defined broadly as evidence of what someone not present at trial said*. So, as an example. Let’s say we had a priest that had a bit of a loose tongue. He hears a confession from someone telling him they have committed a crime, and the priest tells his housekeeper about it. The housekeeper is horrified and tells the police, and is subsequently called as a witness. If the priest is not there to be cross examined then what the housekeeper says will be hearsay.

If someone is testifying as to what the accused told them, then that is not hearsay, whether or not the accused is present. So, using the same example, if the priest was called as a witness and actually testified and was available for cross-examination, then the priest’s testimony would not be hearsay as he is testifying to what the accused said to him, not what another party not present at the proceedings told him the accused said (I expect most of you have also worked out that if the priest attended court then the housekeeper’s testimony would then not be hearsay either, though it might be pointless).

The priest – penitent relationship does not attract (non-cannon law) legal privilege, so there is no reason in law why a priest could not testify to what he was told in confession and I would expect that a jury would give considerable weight to such testimony.

MrP



* There is another element, that such evidence is adduced for the truth of the contents, but people often have trouble grasping that concept, though it would apply in the example.

Peregrinus

Hearsay is a statement not made in oral evidence in the proceedings that is offered as evidence of the matter stated.

The hearsay rule, basically, is: hearsay is not admissible as evidence. There are many exceptions, but the default is that hearsay is not admissible.

So, take an easy case first: Priest says that Parishioner told him that he was aware that Defendant was abusing Victim. This is not admissible evidence that Defendant was abusing Victim. Parishioner’s statement has not been made in oral evidence in the proceedings.

So if, under a reporting obligation, Priest comes to police and says as above, the police don’t yet have a case against Defendant that will stand up in court. The value to police of this information is not that they can now prosecute Defendant; it’s that they can go and talk to Parishioner and to Victim (and, eventually, to Defendant) to see if they can find evidence that Defendant has abused Victim. The evidence that will want to put to the court is direct testimony by Victim that he was abused by Defendant, or an admission by Defendant that he abused Victim or (ideally) both. Either way, they won’t be calling Priest as a witness and, if they do, his evidence on as to what was said to him by Parishioner will be held inadmissible.

Case 2: Priest says that Victim told him that Defendant was abusing Victim. This is again not admissible evidence that Defendant was abusing Victim. Victim’s statement has not been made in oral evidence in the proceedings. So, once again, what the prosecution have to do is to is investigate to see if they can get either Victim or Defendant to testify as to the abuse (or find other, admissible evidence).

Right. The fact that the proposed reporting obligation is drafted so as to apply to both these cases tells us that it’s not primarily aimed at getting evidence of abuse for use in prosecutions; it’s aimed at getting information about abuse for use in investigations, and in child protection work.

But now let’s consider case 3: Priest says that Defendant told him that Defendant was abusing Victim. Is this admissible?

It is hearsay. Defendant’s statement to Priest was not made in oral evidence. So on a strict application of the hearsay rule it’s not admissible as evidence to prove that Defendant abused Victim. The ideal evidence on this point would again be direct testimony from Defendant or Victim as to the abuse.

But hold on, I hear you cry! People often make confessions under interview by the police, don’t they? And they get convicted on the basis of those confessions! It happens all the time on television!

Yes, it does, and it also happens in real life. It’s one of the exceptions to the hearsay rule. A statement made by the accused which is contrary to his own interest may be offered to prove the matter stated. But this exception is itself attended with all kinds of qualifications and limitations - the police, as we know again from television, have to jump through all kinds of procedural and substantial hoops to ensure that what suspects say to them in interviews will be admissible evidence.

So, will evidence from a Priest that the Defendant admitted to a crime in the context of sacramental confession be admissible? If I were the prosecution I’d have a bloody good go at getting it in, but if I were the defence I’d have a bloody good go at keeping it out, and there are a lot of angles to this, even leaving aside the hearsay rule. These include:

- Can the priest be compelled to testify? He certainly won’t want to testify. There’s a reporting obligation, but an obligation to report to the police is not the same as an obligation to give evidence to the court, and the priest may argue that there’s a privilege attaching to the context of sacramental confession.

- Or, the defendant can argue that the context gives rise to a privilege for him, and the priest can’t testify unless the defendant waives the privilege.

- If we get past this, and the priest testifies, then the hearsay rule comes into play. Is this admissible as a confession, bearing in mind that it’s not attended with the protections that would apply to a confession made to police. Was it obtained by any threat (of punishment) or inducement (of remission of punishment) for example? Or by an oppressive exercise of authority, if e.g. the defendant was directed to make confession by his religious superiors?

- Constitutional and ECHR guarantees of freedom of religion and of right to privacy come into play. SFAIK they have never been tested in this context before.

Depending on the circumstances, I think there’s a fair prospect that the prosecution would succeed in getting the evidence in, but there’s a lot of unanswered questions - unanswered mainly because they haven’t arisen, because evidence of this kind has not been offered up to now. And I think if the authorities were hoping to make use of sacramental-confession evidence in prosecutions, they wouldn’t just be legislating a reporting obligation; they’d be legislating on some of the as-yet-unanswered questions about the compellability of witnesses, the nature/extent of any privilege, the relevance/admissibility of the evidence, etc.

In short, I think there’s real questions over how much actual, admissible evidence will be elicited by a reporting obligation of this kind, and I don’t think the main purpose of the obligation is to provide evidence for use in prosecutions.

MrPudding

Peregrinus wrote: »

Hearsay is a statement not made in oral evidence in the proceedings that is offered as evidence of the matter stated.

The hearsay rule, basically, is: hearsay is not admissible as evidence. There are many exceptions, but the default is that hearsay is not admissible.

So, take an easy case first: Priest says that Parishioner told him that he was aware that Defendant was abusing Victim. This is not admissible evidence that Defendant was abusing Victim. Parishioner’s statement has not been made in oral evidence in the proceedings.

So if, under a reporting obligation, Priest comes to police and says as above, the police don’t yet have a case against Defendant that will stand up in court. The value to police of this information is not that they can now prosecute Defendant; it’s that they can go and talk to Parishioner and to Victim (and, eventually, to Defendant) to see if they can find evidence that Defendant has abused Victim. The evidence that will want to put to the court is direct testimony by Victim that he was abused by Defendant, or an admission by Defendant that he abused Victim or (ideally) both. Either way, they won’t be calling Priest as a witness and, if they do, his evidence on as to what was said to him by Parishioner will be held inadmissible.

Case 2: Priest says that Victim told him that Defendant was abusing Victim. This is again not admissible evidence that Defendant was abusing Victim. Victim’s statement has not been made in oral evidence in the proceedings. So, once again, what the prosecution have to do is to is investigate to see if they can get either Victim or Defendant to testify as to the abuse (or find other, admissible evidence).

Right. The fact that the proposed reporting obligation is drafted so as to apply to both these cases tells us that it’s not primarily aimed at getting evidence of abuse for use in prosecutions; it’s aimed at getting information about abuse for use in investigations, and in child protection work.

But now let’s consider case 3: Priest says that Defendant told him that Defendant was abusing Victim. Is this admissible?

It is hearsay. Defendant’s statement to Priest was not made in oral evidence. So on a strict application of the hearsay rule it’s not admissible as evidence to prove that Defendant abused Victim. The ideal evidence on this point would again be direct testimony from Defendant or Victim as to the abuse.

But hold on, I hear you cry! People often make confessions under interview by the police, don’t they? And they get convicted on the basis of those confessions! It happens all the time on television!

Yes, it does, and it also happens in real life. It’s one of the exceptions to the hearsay rule. A statement made by the accused which is contrary to his own interest may be offered to prove the matter stated. But this exception is itself attended with all kinds of qualifications and limitations - the police, as we know again from television, have to jump through all kinds of procedural and substantial hoops to ensure that what suspects say to them in interviews will be admissible evidence.

So, will evidence from a Priest that the Defendant admitted to a crime in the context of sacramental confession be admissible? If I were the prosecution I’d have a bloody good go at getting it in, but if I were the defence I’d have a bloody good go at keeping it out, and there are a lot of angles to this, even leaving aside the hearsay rule. These include:

- Can the priest be compelled to testify? He certainly won’t want to testify. There’s a reporting obligation, but an obligation to report to the police is not the same as an obligation to give evidence to the court, and the priest may argue that there’s a privilege attaching to the context of sacramental confession.

- Or, the defendant can argue that the context gives rise to a privilege for him, and the priest can’t testify unless the defendant waives the privilege.

- If we get past this, and the priest testifies, then the hearsay rule comes into play. Is this admissible as a confession, bearing in mind that it’s not attended with the protections that would apply to a confession made to police. Was it obtained by any threat (of punishment) or inducement (of remission of punishment) for example? Or by an oppressive exercise of authority, if e.g. the defendant was directed to make confession by his religious superiors?

- Constitutional and ECHR guarantees of freedom of religion and of right to privacy come into play. SFAIK they have never been tested in this context before.

Depending on the circumstances, I think there’s a fair prospect that the prosecution would succeed in getting the evidence in, but there’s a lot of unanswered questions - unanswered mainly because they haven’t arisen, because evidence of this kind has not been offered up to now. And I think if the authorities were hoping to make use of sacramental-confession evidence in prosecutions, they wouldn’t just be legislating a reporting obligation; they’d be legislating on some of the as-yet-unanswered questions about the compellability of witnesses, the nature/extent of any privilege, the relevance/admissibility of the evidence, etc.

In short, I think there’s real questions over how much actual, admissible evidence will be elicited by a reporting obligation of this kind, and I don’t think the main purpose of the obligation is to provide evidence for use in prosecutions.

Sorry. No. Case 1 and 2 you are correct, they are hearsay, as I pointed out in my post. Case three is not hearsay, because the hearsay rule does not apply to the accused. Testifying to what you say the accused told you is no different to testifying to what you say you saw the accused doing.

There is no reason in law why a confession made to a priest, by the person that carry out the crime, could not be used in the prosecution of that person.

The whole point of the hearsay rule is that the accused has the opportunity to cross examine witnesses against him or her. If a witness is testifying as to what someone else told them, and that person is not at trial, then the accused does not have an opportunity to cross examine that someone else. This obviously does not apply to what the accused themselves says to someone.

MrP

aloyisious

It was interesting to hear that the head of TUSLA, and TUSLA itself, object to a statutory obligation being placed on people to report child sex abuse incidents here because he and it believe it would cause problems in regard to caring for persons who then came to their attention for care and treatment, as TUSLA does not have the resource capability to cover such an outcome.

The reason given for the stance reportedly taken is different to the reason posited by another poster a few pages back on the decision by the Royal Commission in Australia to push for mandatory reporting [that it could cause a reduction in reporting] but an equal backfiring due to reporting being made mandatory.

Peregrinus

aloyisious wrote: »

It was interesting to hear that the head of TUSLA, and TUSLA itself, object to a statutory obligation being placed on people to report child sex abuse incidents here because he and it believe it would cause problems in regard to caring for persons who then came to their attention for care and treatment, as TUSLA does not have the resource capability to cover such an outcome.

The reason given for the stance reportedly taken is different to the reason posited by another poster a few pages back on the decision by the Royal Commission in Australia to push for mandatory reporting [that it could cause a reduction in reporting] but an equal backfiring due to reporting being made mandatory.

The concern about a reporting obligation is not that it causes a drop in reporting; it's that it causes a drop in other, possibly more effective, action that people might take.

Once a teacher, neighbour, GP, whatever, has phoned the confidential hotline and reported their suspicions that a child is being abused, they tend to feel that they have done what they need to do, that that matter in with the experts now, etc, etc, and to make no further intervention.

In the meantime, the call has been logged, and placed in a vast database of similar calls for review, analysis and action.

At this point nothing has actually been done to protect the child, and nothing will be done unless considerable resources are devoted to analysing, assessing, investigating and if appropriate actioning the reports received. But since a large proportion of the reports come to nothing, this isn't necessarily the most effective way to deploy limited child protection resources.

The final result is not a good outcome in terms of child protection.

That' not to say that mandatory reporting doesn't have a place in child protection. But the best reporting regimes are tightly focussed, with a limited class of people, mostly professionals, being mandated to report in specified circumstances.

I don't fundamentally object to a reporting obligation aimed at clerics. But I do think it has to be based on rigorous thinking about what it will actually do to protect children and, if it's not going to protect children, it shouldn't be introduced. And I think an obligation aimed at the confessional, which will be widely ignored and almost impossible to enforce, is probably not effective at protecting children.

Peregrinus

MrPudding wrote: »

Sorry. No. Case 1 and 2 you are correct, they are hearsay, as I pointed out in my post. Case three is not hearsay, because the hearsay rule does not apply to the accused. Testifying to what you say the accused told you is no different to testifying to what you say you saw the accused doing.

There is no reason in law why a confession made to a priest, by the person that carry out the crime, could not be used in the prosecution of that person.

The whole point of the hearsay rule is that the accused has the opportunity to cross examine witnesses against him or her. If a witness is testifying as to what someone else told them, and that person is not at trial, then the accused does not have an opportunity to cross examine that someone else. This obviously does not apply to what the accused themselves says to someone.

MrP

The rule against hearsay certainly does apply to the accused. If it did not, there would be no need for an exception to cover admissions against interest.

The cross-examination explanation for a blanket exception doesn't hold up. The accused can't be compelled to testify, and therefore can't be compelled to undergo cross-examination, and if his confession also implicates a co-accused, the co-accused will have no right to cross-examine.

aloyisious

It seems that a Cardinal Raymond Burke interview on the lack of males entering the priesthood has resulted in two differing interpretations, one by Femalista magazine which states that The Catholic Church is blaming women for priests being paedophiles. https://www.femalista.com/catholic-church-women-blame-pedophile-priests/

The other interpretation is given by the New Emangelization magazine who's article is titled "What Cardinal Burke Really Said". https://www.newemangelization.com/uncategorized/what-cardinal-burke-really-said/

I saw the Femalista article on an O/P's F/B page and googled for more info from both sides. It's actually news to me that there is a magazine titled Emangelization covering what seems to be a bias against women gaining further involvement in church service matters usually conferred solely on male ordained priests.

Cabaal

https://www.broadsheet.ie/2018/08/02/et-tu-francis/


Colm O’Gorman, survivor of clerical child sexual abuse, Marie Collins

Speaking today on RTɒs Morning Ireland, Mr O’Gorman criticised the Catholic hierarchy who he said had managed to organise their marketing, their merchandising, their licensing of the pope’s image but appear :“not a jot of attention has been paid” to the idea of addressing the tens of thousands of people in Ireland “who have been so traumatised and harmed by the rape and abuse of children and vulnerable adults that was facilitated by, and then covered up by the Church, including the Vatican.”

He has a very very valid point,
All the focus on organisating the event, getting the tickets sorted etc but they can't organise a meeting with abuse victims?

Shows were the priority's are.

Seth Brundle

Cabaal wrote: »

Shows were the priority's are.

When have they ever cared about victims? The RCC has always been forced into admitting it's let people down

aloyisious

Cabaal wrote: »

https://www.broadsheet.ie/2018/08/02/et-tu-francis/


Colm O’Gorman, survivor of clerical child sexual abuse, Marie Collins


He has a very very valid point,
All the focus on organisating the event, getting the tickets sorted etc but they can't organise a meeting with abuse victims?

Shows were the priority's are.

On an aside to the marketing angle, profit being an angle from some shops point of view. I was in the Eurogiant shop on Parnell St yesterday, rack of various Pope Francis memorabilia beside a shelf of paperback bibles "The Bible" in gold on the cover. One fell off the shelf and I found it, and the others, were the King James version of the bible Edit. the bibles are from Western Florida.

aloyisious

Listening to RTE this morning, it seems the frosty differences between Mary McAleese and the church may have deepened. One person on the radio show stated that Mary had been invited to the Family event and that was rebutted by a phonecall from a person who identified himself as Justin McAleese stating that no invitation had been received. The show host queried that with his guest who stated that the invitation had been issued, Her host suggested the invitation be re-issued by her to Mary. I'm assuming that RTE made sure that it was Justin who phoned in and not a phony, given how it was conned in the past by phonecalls relating to presidents in the past.

jobeenfitz

All this rape of children by priests and cover up by those above seems to be systematic. I know it's only a small percentage but a lot of priests bishops and popes must have turned a blind eye, IMO. Maybe it's time we got the UN to hold some type of tribunal and hold the Catholic Church responsible fr there crimes?

Cabaal

jobeenfitz wrote: »

All this rape of children by priests and cover up by those above seems to be systematic. I know it's only a small percentage but a lot of priests bishops and popes must have turned a blind eye, IMO. Maybe it's time we got the UN to hold some type of tribunal and hold the Catholic Church responsible fr there crimes?

Vatican has prev told the UN to get stuffed and has refused to provide the UN with any records on abuse, this happened under current pope too.

its evident the Vatican and by extension the current pope has no interest in getting to the route of the issue and getting justice for victims.
Its all about saying nice things, but zero meaningful action

Seth Brundle

Two stories in today's Irish Times relating to Ian Elliott (former chief executive of the Irish Catholic Church’s National Board for Safeguarding Children) in which he is highly critical of the Church's approach to child protection:

Pope Francis’s record on child protection ‘has been a dismal failure’
Worldwide ‘the problem is not managed effectively anywhere’ by the Catholic Church

Pope Francis’s record on child protection “has been a dismal failure” and “he needs to come [to Ireland] with a mindset that it’s not good enough to simply apologise for what has happened”, the former chief executive of the Irish Catholic Church’s National Board for Safeguarding Children has said.

Ian Elliott said Pope Francis “needs to say: ‘This is what we’re going to do now, this is how we’re going to move forward, these are the initiatives we’re going to drive through.’”

Canon law must be reformed and outside independent monitoring introduced in the church, he added.

https://www.irishtimes.com/news/social-affairs/religion-and-beliefs/pope-francis-s-record-on-child-protection-has-been-a-dismal-failure-1.3597677


Bishops’ commitment to child protection ‘a lot of lip service’
Ian Elliott, chief executive of church’s child protection body, said his work was resisted

The man who created child protection structures for the Catholic Church in Ireland would not do so again because of the resistance he encountered from bishops. “If I was faced with the prospect again and knowing what I know now, would I go down that route again? The answer is no. Very definitely not, ” Ian Elliott told The Irish Times.

https://www.irishtimes.com/news/social-affairs/religion-and-beliefs/bishops-commitment-to-child-protection-a-lot-of-lip-service-1.3597658

jobeenfitz

I can understand people believing in God, believed meself once, I cannot see how anyone can have any belief or love for the Catholic Church. It should be torn down. The top brass don't give two flucks for there flock. It's a rotten organisation with many good people at the bottom.

volchitsa

jobeenfitz wrote: »

I can understand people believing in God, believed meself once, I cannot see how anyone can have any belief or love for the Catholic Church. It should be torn down. The top brass don't give two flucks for there flock. It's a rotten organisation with many good people at the bottom.

That was definitely true in the past, but at some point you have to start wondering about those who still remain despite all the evidence of continued wrong doing by the hierarchy - and I think we've reached that stage by now.

Cabaal

jobeenfitz wrote: »

I can understand people believing in God, believed meself once, I cannot see how anyone can have any belief or love for the Catholic Church. It should be torn down. The top brass don't give two flucks for there flock. It's a rotten organisation with many good people at the bottom.

I also understand people having a faith and if it gets them through life and if it makes them a better person then thats all good stuff.

However, i also can't understand alligining one self to the catholic church given what it has done to people, what it is still doing and its lack of accountability and co-operation.

If this was any other organisation people would have nothing to do with it, imagine for instance of the GAA had all this happened and the current GAA leadership was acting like the pope has.

By all means believe in god, but don't follow a group that clearly have such issues and I dare say are evil in how they have treated victims. Their current tactic of not compensating or co-operating with investigations in order to wait for the victims to basically all die is not forgivable.

Cabaal

volchitsa wrote: »

That was definitely true in the past, but at some point you have to start wondering about those who still remain despite all the evidence of continued wrong doing by the hierarchy - and I think we've reached that stage by now.

You know I don't think we have, I've met Catholics who have said that what happened in the past should stay in the past and people are only looking for money.

Ok, not many, but its deeply worrying to speak to anyone that thinks this. It also mirrors what Vatican representatives were saying to victims a few years back "you're only in it for the money!"