Wednesday, April 11, 2018


Since most Americans (including the President) get their understanding of the law from television shows, which means ideas that make for good plots with lots of suspense, the concepts are necessarily a bit blurred.  The first thing to realize is that concepts like confidentiality and privilege are never absolute, even for lawyers and kings.

Quotes from The Alexander Blewett III School of Law, The Scholarly Forum @ Montana Law   6-2014 
A (Different Kind of ) Fathers' Day Column "Bless Me, Father..." Montana's Clergy Privilege 
Cynthia Ford
“This column deals with the application of Montana's clergy privilege. We have already covered privileges in general, and the spousal (yes) and parent-child (no) privileges specifically. Montana's privileges are statutory, and the statutes are construed narrowly to accommodate the competing public interest in full disclosure of relevant information. 
The basic purpose for all privileges is to foster certain specified relationships: 
26-1-801. Policy to protect confidentiality in certain relations. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the cases enumerated in this part. 
. . . . . . . . .
The third of the thirteen specific privilege statutes in Montana protects certain religious communications: 
26-1-804. Confessions made to member of clergy. A member of the clergy or priest may not, without the consent of the person making the confession, be examined as to any confession made to the individual in the individual's professional character in the course of discipline enjoined by the church to which the individual belongs
This statute was first enacted in 1867; its last amendment was in 2009, as part of a gender-neutralization bill. 
In the 147 years of its history, the Montana Supreme Court has construed this statute in only two cases, one in 1998 and the other in 1999. (Both were criminal cases in which the defendants were convicted of sexual abuse of their respective stepdaughters.)In both cases, however, the Court affirmed the trial judge's refusal to apply the statute and held the communications to be non-privileged and admissible even on the broader interpretation of the statute.
 . . . . . . . . .
More than a dozen specific laws describe what can be made public and what cannot.  They include things like adoption, health, location of historic or paleontological cultural sites, criminal justice testimony, personal welfare, therapy.  The public has locked onto lawyer/client and clergy confidentiality, which are among the oldest.  Over the centuries the general attitude toward “who can know what” has swung from one extreme to the other.  At one point in history it was acceptable to torture people until they confessed to what the public or authorities already assumed to be true.  In some contexts, like the Mafia, the penalty for disclosing facts is death.
“The clergy privilege was first developed for traditional hierarchal churches with clear demarcation between clergy and lay workers. The obvious archetype is the Catholic confessional, with secret confession and absolution in a private booth housing only the priest and the penitent.”
This became problematic in two ways.  It became a cover for forbidden and predatory sex on the part of clergy, so that now it is more conventional for the priest to sit quietly near the penitent in plain sight of the congregation, but possibly to turn away or look down.  The content has also become more therapeutic and less dogmatic about divine consequences.  Not so magic.
The second problem is one throughout our times: definitions.  In the beginning religion was uniform and hierarchical, merging with government.  Now we have a hard time understanding what religion really is, which of various traditions are technically religious or even value secrecy, who the clergy are since many congregations use lay leaders, and even the very crimes being confessed.  
Likewise, the confidentiality protection for marriage is challenged by questions about what marriage is: a ceremony, a private commitment, a public declaration, co-habitation, children, shared ownership, “open” marriage, child marriage . 
In general, confidentiality is meant to be a way of reconciling private interests with those of the public.  Obviously, murderers want to keep their sins to themselves, but the general citizenry can hardly tolerate killers.  This sort of conflict has led to the premise that any private information that endangers the public must be exempted from confidentiality.  
It isn’t always easy.  When my brother was erratic, I asked for a deputy to make what is called a “welfare check,” meaning finding him and interviewing him to make a judgement about whether he was all right.  My other brother was very angry, considering this an invasion of privacy.  In therapy, if the helper sees that the client is considering something that would hurt himself/herself or others, the helper is obligated to contact authorities that can intervene.  That’s a law.
But the definition of “hurt” is also open to sliding definitions.  If someone is unsanitary, are they a danger to themselves or others?  And some are so extreme that we can hardly grasp them.  Our president is clearly capable of triggering a war, possibly a world-scale war with nuclear bombs.  He is certainly not in control of himself.  At what point do we intervene?  We’ve already brushed aside his right to client/lawyer privilege because the criminal content of the matters are so serious and long-standing that they void confidentiality.  But he openly threatens war — it’s no secret.
We’ve become accustomed lately to giving a previously majority of citizens (white, male, conservative, old) the right to crush individuals, ripping apart families, torturing people with captivity and isolation, even shooting them dead in a moment’s suspicion.  This trend seems to be growing.  Most of it is based on the danger to fortunes, not to life and well-being.  What was once advertising — trying to push us into conformity — is creeping over into being enforced law about how to dress, what language to speak, and how to keep house.  What to think.
These potent and possibly lethal trends ought to be the business of legislators.  Internet media and data scraping have raised the question of confidentiality far higher — knowledge about specific people those people don’t even know themselves and that can be used against them in ways they’ve never suspected.  People old enough to be legislators refusing to retire cannot understand the computers that have become key issues.
The “murder” is of Democracy.  It has already begun.

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