The Shameless Jeff Miller…

…on the even more shameless Louisiana court trying to force a priest to violate the seal of the confessional:

Dear Lousiana:  Permit to quote Marcel Marceau:

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  • jroberts548

    Did you read the Louisiana Supreme Court case in question? http://www.lasc.org/opinions/2014/13C2879.pc.pdf

    The diocese sought to prevent the penitent from testifying. No one sought to compel the priest to testify. The court held, rightly, that the diocese can’t assert the clergyman privilege to prevent the penitent from testifying. No one has held that the priest can be compelled to testify. The case was remanded to determine the different question of whether the priest had non-privileged information that triggered his mandatory reporter duty.

    Just like you should be skeptical when the mainstream press reports on the church, you should be skeptical when non-lawyers report on the law. If someone is reporting on a legal case, and they link to a press statement and a newspaper article, but not the decision itself, you should assume they’re lying at worst and lazy at best.

    • Sadie

      Wow, that opinion presents the actual case as… almost unrecognizably different from the one that the MSM and everybody else (including our parish priest, who knows the LA priest and called him to get the lowdown) has been debating. So legal reporting is just as bad as science reporting, who knew?

      Although am I right in reading that the case still presents the opportunity for a court to find that priests ARE subject to mandatory reporter obligations (even in violation of the seal of the confessional) when they learn of ongoing abuse that presents an obvious risk to a child’s physical or mental health? That could be sticky, no?

      • jroberts548

        Yes, legal reporting is incredibly bad.

        Maybe. Priests are definitely mandatory reporters, but, because of the way Louisiana wrote it’s laws, it’s not clear whether they’re mandatory reporters for abuse against children if they only know about it through confidential communications. The Supreme Court didn’t really analyze or answer that question, but they did remand to find out whether the priest had knowledge from outside confession, which suggests that they’ll likely resolve that question in the church’s favor, maybe.

      • http://chicagoboyz.net/ TMLutas

        Pretty much all reporting is incredibly bad. Most people have a hard time processing the idea that all the convincing reportage about subjects they are relatively uninformed about is just as bad as the stuff that they are personally knowledgeable about.

        • capaxdei

          It’s particularly hard to process how bad beer and spirits journalism is, which tends to recycle as fact the same lies and legends again and again. If journalists are personally knowledgeable about anything, isn’t it booze?

          • http://chicagoboyz.net/ TMLutas

            My understanding is the new generation of journalists aren’t the legendary boozers of yore as they’ve got degrees and social standings to maintain. Unfortunately, that doesn’t seem to require that they be good at their job.

    • http://lovedasif.com Drusilla Barron

      A meeting between the priest & the Charlets adds another dimension. I’d love to see Mrs. Charlet’s deposition.

      • jroberts548

        Right. It looks like there’s probably evidence that the priest met with the Charlets and the girl’s parents, so he either had knowledge from outside confession, or he already broke the seal by meeting with Mr. Charlet and with the girl’s parents.

  • http://chicagoboyz.net/ TMLutas
    • jroberts548

      Fr Z also did not read the case.

      • http://chicagoboyz.net/ TMLutas

        Did you read Fr. Z’s post? First of all, he covered the issue, not the case. Second, he’s saying that the diocese was wrong. Third, he posted in 2010 and unless you believe in time travel…

        No need to shoot your ally in the argument from the hip.

        • jroberts548

          Sorry, I didn’t follow the link. He also posted on this last week. He still has not read the case. http://wdtprs.com/blog/2014/07/seal-of-confession-under-attack-by-louisiana-supreme-court/

          That he knows that the seal doesn’t apply to the penitent makes his dishonest coverage of this case even more shameful.

          • http://chicagoboyz.net/ TMLutas

            The main trouble seems to be that Louisiana only holds the confidentiality of the communication as a privilege of the penitent, one that once waived releases the priest. That’s a fairly serious conflict with well established Church law and one that the Church is right to fight.

            The seal of the confession affects the priest no matter what the actions are on the part of the penitent.

            I have some sympathy for the priest in that he’s being accused of a crime (neglecting to urge that the penitent speak to law enforcement) but the only way to defend against that crime is to incur the penalty of excommunication and possibly being laicized by a religious court. The law, in this case, is not well written.

            • jroberts548

              But the question before the court wasn’t about whether the priest could be compelled to testify about the confession. It was about whether the diocese could assert the privilege against the penitent. Yes, the court would now permit the priest to testify, but Louisiana law permits people to do all manner of things that would get you excommunicated or laicized. Louisiana courts would also allow, e.g., a womynpriest to assert the privilege. (There should be other questions about the admissibility of the testimony, such as relevance, undue prejudice, and hearsay, but those weren’t before the court).

              The other question before the court is whether the priest owed the plaintiff a private duty to report. On that question, they remanded to the lower court to determine whether the priest had knowledge from outside confession. (They also remanded to determine whether the communications were confessions per se. I don’t know why they didn’t just say privileged, since that’s the legal standard and “confession per se” is a term foreign to Louisiana law). Though their language isn’t unequivocal, it looks like only communications that weren’t privileged at the time would trigger the reporting duty. So there should be no need for the priest to testify about the confession; either the plaintiffs can bring in evidence to show that he had knowledge from outside confession, or they can’t.

              • http://chicagoboyz.net/ TMLutas

                Would you perchance be a lawyer? You’re doing a good job imitating a monofocused one if you are not.

                This case exposed a weakness in the LA legal code. The cure for that weakness is not in the court. It’s in the legislature where the definition of clergy privilege should be made more Catholic compatible. It’s quite common for non-experts to initially fail to make the jump when separation of powers requires them to fix a problem that becomes visible in the executive or the judiciary but truly is in the legislative arena. This does not make them dishonest. It makes them amateurs. Your characterization of Fr. Z as dishonest, absent evidence you have yet to mention, is inappropriate and negatively affects the credibility of all your other arguments.

                I do not think that Fr. Z would claim to be an expert on secular law. I’m less forgiving of the diocese which should have competent people on staff to prevent them from running down a blind alley as they appear to be doing.

                You’re doing good work in pushing people away from shoot-from-the-hip analysis. Don’t screw it up by inappropriate name calling.

                • jroberts548

                  I am a lawyer, almost. I sit for the bar in two weeks, and am procrastinating here.

                  Ordinarily, if someone gets a court opinion wrong, I don’t think they’re dishonest. Most people were smart enough not to go to law school, so I don’t blame them for little errors, as long as they have at least a little bit of epistemic humility.

                  Here, however, the language of the case is clear. The first thing the case does is identify, clearly, the two questions before it: “This writ presents the issue of whether a party is precluded from offering any evidence of her confession and whether a priest has a duty to report allegations of sexual abuse perpetrated on a minor parishioner.”

                  The first question is answered affirmatively, again, in clear language: “. . . the
                  child/penitent is free to testify and introduce evidence as to her own confession.”

                  The second question is answered a little bit less clearly; however, “Whether this particular priest owed this particular duty to the plaintiffs in
                  this particular factual context is a mixed question of law and fact . . . . Therefore, we find the appellate court erred in dismissing
                  plaintiffs’ claims with prejudice as the question of duty/risk should be resolved by
                  the factfinder at trial, particularly herein where there exists material issues of fact
                  concerning whether the communications between the child and the priest were
                  confessions per se and whether the priest obtained knowledge outside the
                  confessional that would trigger his duty to report.”

                  So I can see an honest person being a little confused about the second question. But I don’t see how any honest person can be confused about the first question, or how they could make up the completely unasked question of whether a priest can be compelled to testify.

                  The diocese is definitely lying. If they’re not, they have the worst lawyers in history. People like Fr. Z and Bill Donahue, who have large audiences and could certainly have asked an expert to clarify are, at best, recklessly repeating something that they should know is a lie. Even when told about it in the comments to his post, Fr. Z responded to an earlier person explaining the actual opinion by quoting some random thing (which was not the opinion) at him. If you pride yourself on slavishly accurate liturgical translations, you should be able to at least identify the parts of a court case that you don’t understand, and ask someone to explain them. I don’t have a hugely popular blog repeating wrong things about the liturgy, which I use to sell merchandise like this at my cafepress store (http://www.cafepress.com/frzsstore/11376435).

                  • http://chicagoboyz.net/ TMLutas

                    After you pass the bar (and I wish you all the luck you need in that) I strongly suggest spending some time with experienced lawyers discussing the subject of how you can be right on the facts or the law, but so obnoxious that you lose your case anyway because you angered the jury enough that they just don’t listen to you.

                    That’s what you’re doing here. I don’t recommend the tactic.

                    True story: I was in court waiting for a small civil petition to be decided (details not important) and the case before us featured the two worst lawyers for miles around. Each lawyer had the judge convinced to decide for the other side. But neither lawyer would shut up and let the judge rule in favor of their client. It was the most astonishing bit of legal malpractice I’ve ever witnessed.

                    You aren’t up to that level but your performance does remind me of the story for some reason.

  • jonnybeeski

    And apparently now, the plaintiff’s lawyer has confirmed he does not want the priest to testify. I thought so, since that leaves no defense to the plaintiff’s claim.

    See: http://www.ncregister.com/daily-news/louisiana-supreme-court-raises-seal-of-confession-worries/#ixzz37ippRacb to wit: “Brian Abels, who is representing the girl and her parents, told a local news station he had no intentions of forcing Father Bayhi to testify. He said he only wanted the girl to be able to relate to the court her description of the confessions, where Father Bayhi’s alleged advice was to “sweep it under the floor and get rid of it.”

    “Her testimony has been it [the confession] was more of a plea for help, counseling, and that plea, according to her, went unheeded,” Abels said.

    BTW, if that is the only way the priest knew, it seems to me that existing La. law, cited in the La. SC’s opinion, would exempt the priest from being a mandatory reporter, as the exemptions to mandatory reporting are not limited to Catholic clergy, but rather any communications intended, IIRC, to be confidential and with a clergyman. It would then seem that, as jroberts noted below, that perhaps an objection on grounds of relevance or other inadmissibility would proper, but that was not the subject of the appeal.

    That’s the civil law take. By canon law, the priest would not be able to testify in his own defense on his side of the civil case. Ed Peters’ blog mentioned in passing once that there is some question as to whether the penitent can in fact release a priest from the seal, but did not really get into the rationales pro and con: http://canonlawblog.wordpress.com/2014/02/03/questions-about-the-seal-of-confession-are-not-merely-academic/.


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