Sunday, July 22, 2012

D.A. Hynes:Against Rabbincal screening

Jewish Week  Intimidation aside, what is your impression about how often rabbis are discouraging people from coming forward when asked for advice?
Hynes: What I’ve said to [Agudath Israel vice president] Chaim Dovid Zwiebel is that his suggestion that rabbis have to screen is wrong for two reasons: One, rabbis have no expertise in this area to determine what reaches a level for reporting, and what he’s doing is putting the rabbis in a very dangerous position; because one of these days a rabbi is going to make a mistake cross the line and tell someone under no circumstances are they to report abuse and they are going to be indicted for obstructing governmental administration. I made it very, very clear to Dovid that was my position.

Do you view this the same as witness tampering or witness intimidation? Are there constitutional issues protecting a rabbi’s advice?
Hynes: You’re changing the fact pattern. Why don’t you stay with my fact pattern? My fact pattern is, a rabbi says under no circumstances should you report this, that’s crossing a line. If a rabbi says mesirah prohibits you from reporting then that’s something I can’t deal with; I can’t  pierce that religious connection.
In fact in the legislation I submitted to state DA’s Association’s legislative committee — which has now been passed on to the executive committee for the summer — specifically says in cases of confession or confidential communication to a religious person, whether a rabbi or a minister that would not require mandatory reporting. Mandatory reporting would be finding out about abuse of a third party. There is no reason why clergy should not be mandatory reporters as far as I’m concerned. Twenty-six states in this country have mandatory requirements, only two of them have clergyman-penitent exception: Remarkably, 24 do not. In New Hampshire and West Virginia, despite the clergy-penitent exception they require mandatory reporting in those cases where sex abuse of a third party is involved. There is no reason you can’t have that here for clergy as well.

You said earlier that rabbis don’t have the judgment to assess cases. Agudath Israel has said they are offering training courses for rabbis.
Hynes: I think he has backed away from that. The danger in that … I don’t think a clergy person has the ability or even should have the authority to do screening. The only thing I can do to get around this is hope I can get support in the legislature to change the mandatory reporting to include members of the clergy.

11 comments:

  1. DA Hynes: "If a rabbi says mesirah prohibits you from reporting then that’s something I can’t deal with; I can’t pierce that religious connection."

    Essentially, the DA is admitting that if a Rabbi states religious law (mesira) prohibits reporting to secular authorities, the Rabbi's statement is Constitutionally protected speech under the First Amendment's Freedom of Religion clause.

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    1. Dovid,

      I'm not an attorney, but ...

      Isn't the more important issue the mandated reporter, upon whom the law places an obligation to act? (Akin, perhaps, to the obligation to testify in court.) Do you think the Jewish mandated reporter could claim a First Amendment exemption?

      In light of the severity with which the people, the legislatures, and the courts view child abuse (e.g., the Federal child pornography statutes), it appears to me that there exists a very strong case that both:

      1. the State has a legitimate "compelling interest" in the reporting of suspected child abuse (the old Warren Court standard); and

      2. New York's mandatory-reporting statute is a "neutral law of general applicability" (the standard of Employment Division v. Smith, Scalia writing for the majority), and is thus valid on its face.

      (http://en.wikipedia.org/wiki/Free_exercise_clause#Compelling_interest)

      If I'm correct about the law, does a posek's cautioning a mandated reporter about mesirah - and thus endangering him with respect to the civil police power - face any halakhic problems?

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    2. As I wrote before, the proposed law is NOT neutral because it singles out clergy as mandaaory reporters, whereas most citizens are not.

      I also do not understand Hynes' distinction between "You cannot go to the police because it is mesirah" and "You cannot go to the police under any circumtsance." Why is the former Constitutionally protected and not the latter? Seems to me, if you go to a rabbi, you are asking for a psak halacha.

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    3. TB: "As I wrote before, the proposed law is NOT neutral because it singles out clergy as mandaaory reporters, whereas most citizens are not."

      Sorry, I might have been clearer: I was not speaking about the proposed law, but about the current statutes in New York State.

      Clergy privilege in New York State is an area of the law that I have only begun think about. It surprised me very much. A recent "snapshot" of its (New York!) doctrinal interpretation can be found in:

      Lightman v. Flaum, 761 NE 2d 1027 - NY: Court of Appeals 2001 - Google Scholar
      http://scholar.google.com/scholar_case?case=17074219841436910036&hl=en&as_sdt=2,33

      The case is easier to understand in light of its progress through the courts:

      Lightman v. Flaum, 179 Misc. 2d 1007 - NY: Supreme Court 1999 - Google Scholar
      http://scholar.google.com/scholar_case?case=17330171931524873576&hl=en&as_sdt=2,33

      Lightman v. Flaum, 278 AD 2d 373 - NY: Appellate Div., 2nd Dept. 2000
      - Google Scholar
      http://scholar.google.com/scholar_case?case=7886059926242344206&hl=en&as_sdt=2,33

      I haven't thought about D.A. Hynes' proposed changes yet; I first have to understand clergy privilege better.

      My understanding of "neutral law of general applicability" is that the law must not burden any particular religion. Laws often burden particular professions -- IIRC, pediatricians were the first class of mandated reporters in the 1960s. The technical-legal concept 'neutral law of general applicability' is discussed in:

      Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 US 520 - Supreme Court 1993 - Google Scholar
      http://scholar.google.com/scholar_case?case=975414503455261754&hl=en&as_sdt=2,33

      TB: "I also do not understand Hynes' distinction between "You cannot go to the police because it is mesirah" and "You cannot go to the police under any circumtsance." Why is the former Constitutionally protected and not the latter? Seems to me, if you go to a rabbi, you are asking for a psak halacha."

      I found this part of the interview quite vague. Perhaps one of the attorney-commenters here could clarify this?

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    4. JaC: "My understanding of "neutral law of general applicability" ... Church of Lukumi Babalu Aye, Inc. v. Hialeah ..."

      Please ignore this part of my comment. It is probably incorrect.

      BTW, Tal Benschar may have been referring to this comment he made on 24 May:

      http://daattorah.blogspot.com/2012/05/da-wants-rabbis-to-be-mandated.html?showComment=1337882561837#c6627411180866498560 .

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    5. More correction: My reference to clergy privilege (and Lightman v. Flaum) was not germane. The Lightman v. Flaum decision, however, contains a useful discussion of the differences between clergy and other professionals.

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    6. "My understanding of "neutral law of general applicability" is that the law must not burden any particular religion."

      Not true. In McDANIEL v. PATY, 435 U.S. 618 (1978), the Supreme Court held that a Tennessee statute which disqualified clergy from serving as a delegates to the State's Constitutional Convention violated the Free Exercise Clause. The law in question applied to "Minister[s] of the Gospel, or priest[s] of any denomination whatever."

      Here is the critical passage from the main opinion:

      However, the right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions, or, in other words, to be a minister of the type McDaniel was found to be. Murdock v. Pennsylvania, 319 U.S. 105 (1943); Cantwell v. Connecticut, 310 U.S. 296 (1940). Tennessee also acknowledges the right of its adult citizens generally to seek and hold office as legislators or delegates to the state constitutional convention. Tenn. Const., Art. 2, 9, 25, 26; Tenn. Code Ann. 8-1801, 8-1803 (Supp. 1977). Yet under the clergy-disqualification provision, McDaniel cannot exercise both rights simultaneously because the State has conditioned the exercise of one on the surrender of the other. Or, in James Madison's words, the State is "punishing a religious profession with the privation of a civil right." 5 Writings of James Madison, supra, at 288. In so doing, Tennessee has encroached upon McDaniel's right to the free exercise of religion. "[T]o condition the availability of benefits [including access to the ballot] upon this appellant's willingness to violate a cardinal principle of [his] religious faith [by surrendering his religiously impelled ministry] effectively penalizes the free exercise of [his] constitutional liberties." Sherbert v. Verner, 374 U.S. 398, 406 (1963).

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    7. Mr. Benschar,

      Please explain your reasoning (taking into account that I'm not an attorney), including:

      1. Why do you think McDaniel, even pre-Smith, would have applied to adding clergy to a list of mandatory reporters that already includes "hospital personnel engaged in the admission ... of persons" (differentiated from "personnel engaged in ... examination, care or treatment")? [NY Social Svcs. Law, Article 6, Title 6, § 413, http://codes.lp.findlaw.com/nycode/SOS/6/6/413]

      2. How does McDaniel clarify the post-Smith situation?

      Thanks.

      (If you prefer, e-mail me -- my profile URL points to Google reCAPTCHA Mailhide.)

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  2. He is back peddleing as usual. He can't seem to make up his mind. But when pressed he blames the questioner for twisting the facts

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  3. As usual ,hynes is back peddling.

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