Does Commitment To Faith Trump Loyalty To Law?

From: National Public Radio Date: June 1, 2012 Host: Michel Martin MICHEL MARTIN, HOST:

I'm Michel Martin and this is TELL ME MORE from NPR News. Coming up, you tell us more as we dig into our mailbox and hear what you had to say about some of the stories we've covered recently. That's Backtalk and that's in just a few minutes.

But, first, it's time for Faith Matters. That's the part of the program where we talk about matters of faith and spirituality. And today we want to talk about an awful crime that happened a long time ago, but which is back in the spotlight.

Etan Patz was six years old when he went missing in 1979 on his first solo trip to the bus stop. Pedro Hernandez is now in custody all these years later, charged with second-degree murder.

But earlier this week, the New York Times reported that Hernandez confessed to his prayer group in the 1980s that he had strangled a boy and left the body in a dumpster. Nobody went to the authorities and the leader of the prayer group, which met at St. Anthony's of Padua, a Catholic church in Camden, New Jersey, reportedly told the New York Times that he felt it wasn't his place to go to the police.

And that got us to thinking about the rules of confession. When is it appropriate, legally and spiritually, for faith leaders and lay people to act on information that they hear?

To help us answer these questions, we've called Daniel Van Ness. He's a lawyer by trade and he's the vice president of Prison Fellowship International. That's one of the world's largest criminal justice ministries. Also with us is Father Robert Kaslyn. He is the dean of the School of Canon Law at the Catholic University of America. And they're both here with me in Washington, D.C.

Thank you both so much for coming.

DANIEL VAN NESS: You're welcome.

ROBERT KASLYN: You're welcome. Thanks for having us.

MARTIN: So Dan Van Ness, I'm going to ask you first. In the legal field, I think many people will have heard this phrase used, that there's something called a privileged conversation. For example, a husband can't be required to report or divulge information that his wife tells him. An attorney can't be required to divulge information that a client tells him. But under what circumstances does that privilege apply to religious leaders and groups? And is there one common standard around this?

NESS: Good question. There is something called the priest penitent privilege or the clergy congregate privilege, and it is designed to encourage confidence on the part of the penitent that what he's confessing to his clergy member is not going to be divulged to other people outside.

It applies only in situations where there's an expectation of privacy and when the person is talking to the member of the clergy in their capacity - in a particular capacity - that is, if I'm at a party and I mention something to my priest, it doesn't apply, because there are people around, there's no expectation of privacy.

If I ask my pastor if they will back-date some contribution notes that I send to the church in order to get tax benefits, obviously I'm not confessing anything. It is a crime and there's no protection there if the pastor goes to the authorities.

MARTIN: And does that apply to lay people as well, if you're in the context of, say, a prayer group? Or is this only kind of recognized members of the clergy does this seal apply?

NESS: It only applies to clergy members.

MARTIN: Father Kaslyn, are there circumstances in which a clergy person is expected to divulge confidences?

KASLYN: I think a clarification is needed. The term confession has been used both in the New York Times and in other reports. That can be understood in a broad sense, but it could also be understood in a particular sense as referring to the sacrament of penance, and if an individual wishes to go to confession, wishes to receive the sacrament of penance and makes that intention known to the clergy member, to the priest, whatever, then the rules of privilege apply and the priest is not allowed to divulge anything revealed under the context of the sacrament.

That's not quite the same as a confession within a group.

MARTIN: In your understanding, that is not considered a privileged communication.

KASLYN: No.

MARTIN: Have you ever experienced a situation or been made aware of a situation where people who were participating in this kind of circumstance refused to divulge certain information because they felt that it was their religious duty to keep it private?

KASLYN: No. But I think we might be presuming too much. If someone's praying about God's activity in his or her life, it's not the responsibility of any other members of the group to say, well, did you go to the police? Have you reported this? Have you been in jail? Anything like that.

Even if it's something fairly generic, it's considered prayer and so the group is praying for that intention or that activity rather than wanting to find out more.

MARTIN: Dan Van Ness, what about that? I mean, there are a lot of groups in our society now where prayer is a part of it, even if these aren't explicitly religious groups, but there is a faith component to it. I'm thinking of groups like, you know, Alcoholics Anonymous or Narcotics Anonymous, where there's a group intention and confidentiality is part of it. Can you envision a scenario where someone said, you know, I know I was drunk and I know I hit my children. And that's part of that experience and you can see, in another context, if this happened, say, in the supermarket and there was a bystander, you can see someone calling the police.

NESS: Well, if it happens in a supermarket, then you understand the context. You can see what's taking place. If it happens in a group like that, you don't know whether there were consequences after that. If it was reported already, the person may have done time. They may have gone through a counseling process and so on and they're feeling this is something that they want to share with the group.

The point of the group is something different from determining whether mandatory requirements have been fulfilled in this. Ordinarily, people don't have an obligation to come forward and report on someone else...

MARTIN: They don't?

NESS: ...on information. They don't.

MARTIN: Really?

NESS: There may be a moral responsibility, but there's not a legal responsibility. Unless that legal responsibility has been established in a statute.

MARTIN: So, like, certain people have a legal responsibility to report things, like a teacher, if a teacher suspects abuse. But you're saying the average person doesn't have that kind of responsibility?

NESS: Unless the statute places that responsibility on average people. Now, in New Jersey, it's interesting - there's a statute on reporting child abuse and that applies to any person.

MARTIN: If you're just joining us, you're listening to TELL ME MORE from NPR News. We're talking about the legal and religious parameters of confessions. Our guests are Dan Van Ness of Prison Fellowship International. That's who was speaking just now. He's also an attorney. And Father Robert Kaslyn of the Catholic University of America. He's an expert in Canon Law.

So now that we've established the facts, which are somewhat complicated, I would - do you mind if I ask each of you - what is your opinion about what took place here, the facts as they are now known?

KASLYN: There is not enough information out there to make a judgment. Again, there seems to be a number of issues personally affecting this individual and so we have really no idea of the dynamics of the group, how many were present, the context, what exactly he said, what he didn't say, whether it was loud, soft, whether it was understood or not.

MARTIN: Dan, what do you think? What's your response to this?

NESS: We have a program that brings groups of victims into prison to meet with prisoners. They're not each other's victims and offenders. But the victims who come in tell their story of their victimization. The prisoners listen and respond. And one of the weeks that we had the - it's an eight week program. One of the weeks deals with confession, and one of the things that we need to do is warn the facilitators to warn the offenders and the victims to remember that what they're talking about might have legal implications, because there's no confidentiality here.

I attended a meeting in Medellin, Columbia done by our affiliate and it was made up of people who were assassins during the Pablo Escobar era who had not been caught. They had converted. They were wanting to deal with their offense in some way, but the justice system itself has so many problems that that was not a viable approach and they probably wouldn't have been found guilty at this stage.

And also, survivors of homicides, of assassinations at that time, they met together with an agreement that they would hold everything confidential in the context of the meeting.

It was a very moving meeting, but it was also a very uncomfortable meeting for me because I was struggling with those questions. We were hearing stories about people being killed and we were hearing about what effect it had on the families of other people who had been killed.

So it raises that question. The thing that made me have some consolation was that they had discussed that at length prior to entering into this and they had agreed that it was better not to remain silent. It was better to be able to speak within a defined context, understanding the limited use that that would be put to.

MARTIN: But that's not the case here. I mean, that is not the case here. I think that there are still - I just think we should just be blunt about the fact that many people are troubled by this.

NESS: Yeah.

MARTIN: And they feel that these people in this group may feel that their loyalty to this individual outweighed the need of the family and really the community to bring accountability for this awful crime.

NESS: Yeah.

MARTIN: And I'd like to - I just want to ask and I...

NESS: There are some reports that some of the people who were in the group talked to his sister, who then went to the police. And also, the leader of the group said if he had come to me individually, then I would have responded.

So I think what that says is different people in the group thought through how do I respond to a statement that's been made in an unusual context and what is my responsibility, how do I carry it out? In a couple of instances, they went to a family member. In another instance the person said, well, if he talks to me, then I will advise him about...

MARTIN: Is there something more broadly you feel that we should learn from this or is this just such a unique situation that it's just very hard to draw any broader understanding from it?

NESS: Well, one of the things that I think we need to learn is that confession is important. Confession is good for the soul. It's good for society. It's good for resolution of conflict in the justice system. So that's one thing that we need to learn.

The second thing that we need to learn is that confession operates in multiple directions. There's confession to God. There's confession to people we've harmed. There's confession to the police. It becomes very complicated when you begin to pull all of those together and say, do all three need to take place? Certainly they do to have a complete confession, but for many of us, confessing to God is difficult enough.

So I think the lesson would be that this is an extraordinarily complicated kind of, you know, situation. There really are genuine pressures and there are genuine public interests that conflict here. And you find ordinary people doing the best they can in a group, they are going to have different kinds of responses.

MARTIN: Father Kaslyn, before we let you go, I wanted to ask you the same question I asked Dan, which is that - well, just more broadly, you know, confession as a specific sacrament has kind of gone out of fashion, if you don't mind my saying that, in recent years, and I see in a lot of places an effort to kind of bring it back.

And what's also interesting to note is that people confess things all the time these days in blogs, magazine articles, in books and in memoirs. And I just wanted to ask you just your perspective on the value of confession.

KASLYN: The way you understand confession ultimately depends on your understanding of God. If God is a martinet looking down, judging every single thing in your life, good or bad, and writing it up, confession's going to be a horrible experience.

On the other hand, if you say that whatever I do, God will forgive. There's no responsibility because I didn't mean to do it - on the other hand, then penance means nothing, because there's no need for forgiveness.

I think in a mature spiritual sense, the sacrament of penance is a recognition that none of us is perfect and that we've hurt not only God, but hurt one another, whether it's family, friends, coworkers. And I don't want to do that anymore and I need the grace of the sacrament and I need God's intervention so that my behavior will improve.

MARTIN: Father Robert Kaslyn is the dean of the School of Canon Law at the Catholic University of America. Daniel Van Ness is a lawyer. He's also the vice president of Prison Fellowship International, one of the world's largest criminal justice ministries. They were both kind enough to join us at NPR's Washington, D.C. studios.

Thank you both so much for speaking with us.

KASLYN: Nice to be here.

NESS: You're welcome. Nice to be here.

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