Friday, February 10, 2012

Must a Rabbi Report Confidential Confessions?

Earlier this week, I received a phone call from Niraj Warikoo, the religion editor of the Detroit Free Press. He told me that he was assisting another reporter on a local news story and had a few questions for me. Niraj described the case to me.

In 2009, a young girl reported to police that two years earlier when she was 9-years-old she was raped by a 15-year-old male cousin at a sleepover at her home. The boy's pastor was informed of the allegation and he summoned the boy and his mother to the Metro Baptist Church in Belleville, Michigan to be questioned about the incident. The boy confessed to his pastor about the rape and then they prayed. The pastor, Rev. John Vaprezsan, went to the authorities and has since testified about the confession. Is that legal? Is that ethical?

It's a horrible situation, but it also presents a host of interesting legal and ethical questions about what is known as pastor-penitent privilege. This privilege varies from state to state, but in Michigan it is protected in the same way as attorney-client privilege. In the Detroit Free Press article I explained that I honor the confidentiality of people who confess to me, but "if information that is confided in me would lead to serious harm of another human being, I would feel compelled to tell the authorities. That would include situations of abuse."

It is important that people have a safe space to speak in confidence with their religious leader in addition to their attorney. Judaism does not place the same emphasis on confession as the Catholic faith does, but we do want people to feel comfortable speaking with their rabbi while they're in the process of repentance.

Last night I appeared on Detroit's Fox News affiliate to discuss this topic along with Ray Cassar, the defense attorney for the boy accused of rape. It was a very interesting discussion in which I fully agreed that in this case the pastor's testimony about the accused's confession should not be admissible in court. It is very important to protect the confidential discussions between clergy and congregant (or pastor and parishioner in this case). However, if I ever felt that confidential information I was given by a congregant could prevent a tragic act from taking place, I would feel compelled to break that confidentiality. In that case, the Jewish concept of pikuach nefesh (saving a life) would dictate my decision.

Here is the video of last night's episode of "Let It Rip" on Fox2 Detroit:

15 comments:

Rabbi Alana Suskin said...

I disagree wwith your assessment - first, rabbis are often teachers or educators- they should mandated reporters just like teachers in that case. Rabbis do not have the seal of the confessional - we're not priests, and frnakly very few rabbis actually have the training to be able to make a good decision about when it's appropriate to report or not. In cases with minors, we shouldn't be relying on our guts to tell us what to do - it is, in fact, an extremely bad idea.

Bobbie Naidoff Lewis said...

I have mixed feelings on this too. Agree that people need to feel their clergy will keep their counseling sessions confidential. Also agree with Alana that there is no "seal of the confessional" for rabbis. The pastor in question would have been much better off convincing the kid or his mother to talk to police themselves.

Rabbi Jason Miller said...

This is an odd case because the accused young man didn't go to his pastor on his own. The pastor summoned him and his mother to the church for a discussion about a situation the pastor had already heard about. He then worked to get a confession out of the young man and went to police. I was very clear that I would report cases in which a person was in harm (cases of abuse for example). However, all clergy (not only Catholic priests) have to maintain confidentiality or else people won't have anywhere to turn to talk and seek help/guidance. It's a unique relationship that the legal system affords to clergy and we should respect it.

Rabbi Alana Suskin said...

Except that's not quite true - in most states there is no assumption of confidentiality for any clergy other than priests - I remember how shocked everyone was in rab school, when we talked about this. You're right that this is an unusual case - he should have left that particular job to the police - another reason why rabbis (and other clergy) should stay out of the business of deciding when something should be reported or not. This is not, by the way, unique to clergy - social workers and other mental health professionals have various versions of this issue as well. And the rules are much more strict with minors. I think it's a bad idea to leave decisions like this up to gut feelings - that's the idea behind halacha - feel moved to give charity or not - you still have to do it. Human beings are notoriously bad at making judgements like this.

Rabbi Jason Miller said...

Alana, In this USA Today article (in which I'm quoted), it clearly states that Michigan protects this confidentiality right for clergy (not just Catholic priests). In this case it is a Baptist pastor. "State law says no priest or pastor shall be required to disclose any confessions made to him or her in their professional capacity."

Rabbi Alana Suskin said...

OK, so Michigan is different. Maybe. I wouldn't assume that that wording includes rabbis, necessarily. in any case, while I agree that the pastor certainly overstepped his bounds, I think that's exactly the reason why we shouldn't try to be exempted from mandatory reporting. People - including clergy - are just not good at judging these things.

Rabbi George Barnard said...

I believe that, in Ohio, too, all clergy have confidentiality protection. That doesn't mean that we have to rely on it. I tell people that things that they tell me are confidential, unless it appears that they are going to harm themselves or others. Reporting a crime that has already taken place is something else. I am inclined to say that the duty to give testimony takes precedence over pastoral duties. However, it appears that this pastor led someone to believe that he was speaking in confidence and then went to the police. That bothers me.

Rabbi Beverly Weintraub Magidson said...

When I worked at a state psych hospital here in NY I was told by the Protestant Chaplain that non-Catholic chaplains did not have the right of the confessional, and that we were required to report anything that involved danger to the patient or another person. It makes sense to me; there is no such thing as absolute confidentiality of that sort in Judaism.

Rabbi Jason Miller said...

Bev, What you're saying makes me very uncomfortable. What you're saying is that the State (CIVIL) is making a discrepancy between one faith and others. The State shouldn't try to interpret religious laws. What if there's a sect of Islam, Buddhism, or Judaism that determines it will treat confessionals the way Catholics do. Then the State should make the determination if the law should be broadened to include another faith or denomination? I get very nervous when civil leaders try to determine religious law. That has certainly been the case when State's try to mandate kosher laws.

Rabbi Beverly Weintraub Magidson said...

It was based on a legal case. If I remember correctly (this was 20 years ago!) a rabbi claimed that he had the "right of the confessional" to remain silent on an issue, and the court wouldn't uphold it, since there is nothing in Judaism that holds that rabbis have that right. I will double-check that, if I can.

Rabbi Jason Miller said...

Okay, so based on that description the court (CIVIL) had to review Judaism and determine there's no confessional in our faith tradition. Isn't that a problem when the civil court is interpreting matters of Jewish law. I suppose it's just as bad as when NY courts get involved with agunah issues.

Rabbi Heidi Hoover said...

Disclaimers first: I obviously don't know everything about this case, and most of my legal knowledge comes from watching Law and Order.

That said, it was my understanding first of all that in most states if you know someone is going to harm themselves or others you are required to report that, confidentiality or not.

Second, it's my understanding that the clergy-penitent privilege is limited to a setting where the person is confessing in the religious sense, i.e. in order to receive absolution or forgiveness, as opposed to in conversation at the oneg, for example. So not every conversation between a member of the clergy and a congregant would be covered by the privilege, only specific types of conversations. I think I have this impression from rab school, not TV.

Third, and I admit this is from Law and Order, are conversations considered confidential if a third party is present? This was not a conversation between the young man and his pastor, but between the young man, his mother, and the pastor. Why would it still be covered by privilege if it was not just between the man and the pastor? Maybe if he's considered a minor--I believe he's 17, so perhaps it would still be considered confidential, but I question it.

Finally, I think it's interesting that the video clip opens with shots of what is clearly a Catholic confessional, which Baptists don't have any more than Jews do. Protestants don't go to confession like Catholics do. It just makes it very clear where this whole priest-penitent confidentiality started: with Catholic priests and penitents, and it's just interesting that they used a shot to illustrate the case that has nothing to do with how anything in this case actually happened.

Anonymous said...

If most rapists are likely to rape again, then I think that reporting a past crime would be necessary. If most rapists are likely one-time offenders, then perhaps not.

In either case, though, I'm not sure that I would want to be the rabbi who knew that someone might (likely?) rape again and did nothing. In a case of doubt, I would err on protecting the potential victim(s) rather than the confessed rapist.

Amy Ruth Bolton said...

There are a number of ethical and legal issues at stake here. First of all, in many states clergy are indeed mandatory legal reporters of child abuse and neglect, and rape of a minor certainly would fall under this. In those states, clergy have a legal obligation to report such incidents (see for example http://www.childwelfare.gov/systemwide/laws_policies/statutes/clergymandated.cfm)

Secondly, ethically, even if clergy are not in a state where this is the case, if there is a chance that the perpetrator could harm others, or re-victimize the same person, it seems to me that obligation would trump any clergy-congregant confidentiality. There is the welfare of other minors to think about, and that must be weighed against the other individuals involved.

Finally, I am disturbed in this case that the clergy brought them in for questioning. It is well-documented in mental health literature that questioning about rape and any other sexual abuse, especially of children, must be done very carefully so as not to confuse or taint the case. All the more so true about something that happened in the past.

Martin said...

While I understand the pastor's desire to do what is right, in my view he committed an ethical violation by disclosing the boy's testimony without the boy's permission. He should have kept his mouth shut about what he heard in the confession about a past crime.

If he really wanted to turn over the confession to the state, then I would expect him to connect with the boy, and have the boy turn himself in. He could have shared with the boy the kind of future he will have with the kind of unconfessed moral/legal violation he committed by relating to him one of his (the pastor's) moral/legal violations that he has committed in his past, and the victory he achieved over his sin by confessing to his crime.

I am curious, what does the pastor think of his actions? Is he at peace with it??

And yes, if I were to hear in confession from a person of a crime that is -future- based, rather than in the past, I would report it without batting an eye, and sleep at night in peace. I am protecting human lives at that point from potential/certain harm.