Confidentiality and the elders.

by LtCmd.Lore 36 Replies latest jw friends

• 

  Dansk

  Lore:

  You ask a very good question, actually, and I'm only sorry I don't know enough legally to be of any help.

  What I DO know, however, is to NEVER trust elders with any personal information. It's always bothered me that an elder could be taken into someone's confidence and be told some intimate details and then for that elder to be, say, DF'd later. He'd just be another ordinary guy walking about but knowing something he probably no longer considers private information (if he ever did!). What he does with that information could be dangerous. NEVER TRUST THEM!!

  Ian
• 

  unique1

  According to State of Washington v. Martin and Hamlin the following is the criteria:

  The earlier Court of Appeals, Division I, case of State v. Buss53
  announced three requirements which must be satisfied before communications
  between a member of the clergy and a penitent can be considered privileged
  under RCW 5.60.060(3): (1) the clergy member must be ordained;54 (2) the
  statements must be made as a "confession . . . in the course of discipline
  enjoined by the church";55 and (3) the penitent must be constrained by
  religious obligation to make the confession.

  SO. 1. Ordained ministers count.

  2. As long as it is stated as a confession to the Ordained minister they are legally bound to keep it private. (Does this happen? No because most witnesses do not state it as such. They do not walk into the the elders and say, I have a confession to make and as your paritioner you are bound by law to keep this confidential.)

  3. This is where it gets tricky: It would depend on how you define CONSTRAINED!! Websters: forced, compelled, or obliged.... SO it would depend on how the court sees your case. Did you feel forced, compelled or obliged to confess?? I would say most JW's would have a good argument to say that yes they did. Plus the WT society doesn't want to pay tons of court costs to argue a single definition just to see which way the court would lean. So they will respect your wishes if you state your case in this way.

  Most poor JW's though do not realize they have this option or think it is automatically invoked. They ask to speak to an elder and although they may say "I have been smoking" or "I committed fornication" unless they state it as a confession, they arent' covered because unlike Catholics, JW's do not have a confessional or any other formal way of confession. As far as the elders are concerned it is a regular JW speaking to an older, wiser JW. However if everyone preceeded thier statement with the statement that "What I am about to tell you is a confession from a congregation member to an ordained minister and is therefore priviledged", then if the elder if he told anyone other than the standard JC committee could very well be sued for slander if the confession was spread around.
• 

  MadTiger

  After a DA/DF, or unbaptized publisher reprimand, between the almost obligatory local needs talk, and the gossip, you could piece together anyone's business.
• 

  neverendingjourney

  There is no breach of verbal contract. There is no contract, period. A contract requires an exchange of promises to do certain things and an exchange of something of value (called consideration in legal jargon). A breach of contract case for revealing a secret would be quickly dismissed. If there is to be any successful lawsuit, it's going to be in tort for public disclosure of private embarrassing facts or some similar tort, but the threshold is typically difficult to meet. The courts usually don't allow recovery in cases where someone simply reveals a secret to one or more persons. You usually need to prove that a large amount of people found out about the incident and you were somehow hurt by it (damage to reputation, loss of employment, etc.). Breach of contract is a dead end here.
• 

  neverendingjourney

  Unique:

  The requirements you listed go to whether the communication is "privileged." This means whether what is said between a member of the clergy and a church-goer can be kept private and not revealed in a court of law. Privileged communications is part of the law of evidence, i.e., what can and cannot be introduced at trial. If you want to sue someone in a civil trial, you look to the law of torts. Torts (civil wrongs) have elements that must be met. If the plaintiff meets the elements, which always include damages, then you can recover money the person you are suing. If someone wants to sue the elders, you would need to identify a tort that your jurisdiction recognizes and sue on that basis. As far as the issue of slander, the courts do recognize it as a tort, but the information revealed must be false. You are not liable for slander if what you say is true.
• 

  neverendingjourney

  Take a look at this:

  I. Public Disclosure of Private and Embarrassing Facts

  Courts have recognized that certain intimate details about people, even though true, may be "off limits" to the press and public. For example, publishing detailed information about a private person's sexual conduct, medical condition or educational records might result in legal trouble. In order to succeed in this kind of lawsuit, the person suing must show that the information was:

  (1) sufficiently private or not already in the public domain,
  
  (2) sufficiently intimate, and
  
  (3) highly offensive to a reasonable person.

  Each state may have thier own unique take on this. This tort usually falls under the umbrella of "invasion of privacy," so take a look at that as well.

  http://www.splc.org/legalresearch.asp?id=29
• 

  neverendingjourney

  A few more things. I've done some thinking about this during the day and some additional possibilities are coming to mind. There is a tort of breach of confidence that is often used against doctors who breach patient confidentiality. I'm not sure if it's ever been extended to clergy-penitent communications. It might be worth taking a look at.

  Also, I found the following article which seems to be on point. I haven't read it yet, and I don't have time to read it right now. I hope there's some good info there for you. Good luck.

  http://findarticles.com/p/articles/mi_qa3968/is_200001/ai_n8884548/pg_1