Are Rabbis protected by Privileged Communications Laws?

 Update 6/20/2012 I received the following letter as a response to my post which now follows the letter:

Rabbi Eidensohn,

Thanks again for posting on a subject that's both important and fascinating. I have some sources about the situation in New York State, which makes them somewhat tangential to your blog post. (Though N.Y. is, obviously, an important jurisdiction with respect to, e.g., Jewish child abuse cases.) A number of years ago I suffered harm because my layman's intuitions about the clergy-penitent privilege (in New York State) were, as my elders might have said, "_punkt verkehrt_". For the situation in New York, the Court of Appeals decision (2001) in Lightman v. Flaum frames many of the issues quite lucidly:

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 earlier litigation in the case makes it easier to understand:

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 It appears to me that it's not just the detailed provisions, but even the underlying _logic_ and _purpose_ of these laws, that varies from jurisdiction to jurisdiction. Every layman I know was surprise when they read Lightman v. Flaum.

P.S. A passage from Wikipedia's article (http://en.wikipedia.org/wiki/Priest%E2%80%93penitent_privilege#United_States_of_America) might serve as a warning that things aren't necessarily intuitive: In twenty-five states, the clergyman-communicant statutory privilege does not clearly indicate who holds the privilege. In seventeen states, the penitent's right to hold the privilege is clearly stated. In only six states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege.

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 This was my original post:
Privileged communication for clergyman is not clearly defined in New Jersey. In other words a determined prosecutor probably could get charges to stick. There is also the important distinction of whether it is a confession or that the beis din is aware from other sources. Confession is the most likely protected knowledge.

The following is a government report summarizing the issues of clergy as mandated reporting

http://www.childwelfare.gov/systemwide/laws_policies/statutes/clergymandated.pdf

Privileged Communications
As a doctrine of some faiths, clergy must maintain the confidentiality of pastoral communications. Mandatory reporting statutes in some States specify the circumstances under which a communication is “privileged” or allowed to remain confidential. Privileged communications may be exempt from the requirement to report suspected abuse or neglect. The privilege of maintaining this confidentiality under State law must be provided by statute. Most States do provide the privilege, typically in rules of evidence or civil procedure.4 If the issue of privilege is not addressed in the reporting laws, it does not mean that privilege is not granted; it may be granted in other parts of State statutes.
This privilege, however, is not absolute. While clergy-penitent privilege is frequently recognized within the reporting laws, it is typically interpreted narrowly in the context of child abuse or neglect. The circumstances under which it is allowed vary from State to State, and in some States it is denied altogether. For example, among the States that list clergy as mandated reporters, New Hampshire and West Virginia deny the clergy-penitent privilege in cases of child abuse or neglect. Four of the States that enumerate “any person” as a mandated reporter (North Carolina, Oklahoma, Rhode Island, and Texas) also deny clergy-penitent privilege in child abuse cases.
In States where neither clergy members nor “any person” are enumerated as mandated reporters, it is less clear whether clergy are included as mandated reporters within other broad categories of professionals who work with children. For example, in Virginia and Washington, clergy are not enumerated as mandated reporters, but the clergy-penitent privilege is affirmed within the reporting laws. [which isn't true of New Jersey]

Molester killed by Father - case sent to Grand Jury

Chicago Tribune  A grand jury next week will consider whether to file charges against a Texas father who said he beat to death a man who was attempting to sexually assault his 5-year-old daughter, the district attorney for Lavaca County said on Friday.

A witness saw Jesus Flores, 47, "forcibly" carrying the girl to a secluded location and notified her 23-year-old father, who was attending a barbecue at the family's ranch outside Shiner, Texas, last Saturday, District Attorney Heather McMinn said.

The father, whose name has not been released because he has not been charged with a crime, heard his daughter's screams and ran to a secluded area, where he "removed Flores from on top of his child and, in the process, inflicted several blows to the man's head and neck area," McMinn said.

Series of attacks on girls in Jerusalem -

.kikarhashabat

תוקף ילדים אכזרי מסתובב בשכונות חרדיות בירושלים, באין מפריע. אתמול הותקפה ילדה קטנה בגן שעשועים מרכזי בשכונת ארזי הבירה. הילדה נכנסה אל מגלשה סגורה, ובתוכה הותקפה ככל הנראה על-ידי אדם בעל חזות חרדית. עסקן שמטפל בפרשה: ההורים חוששים להתלונן (חרדים)....ו

עסקן תושב השכונה, סיפר לכיכר השבת: "אנחנו מקבלים לא מעט תלונות בתקופה האחרונה, אבל הבעיה היא שההורים מפחדים שהילדים יתלוננו במשטרה. הם לא רוצים שילדיהם ייחקרו. אפשר להבין זאת, אבל כך הבעיה מעולם לא תיפתר".

Yosef Kolko: A letter from a defender

I just received the following letter:

Your information is important. My interest is that I had a close friend that was one time accused of wrong doing and when his only accuser matured admitted that he was only accommodating the accusations of his parents. I understand the "two sides of a coin" very well. I visit Lakewood from time to time and observed the accused one Shabbos. You have many assumptions regarding the facts in the case as reported in the news. Many people in Lakewood including the Roshei Yeshiva say that there is no truth to any of the allegations. Rabbi Simcha Bunim Cohen said that "there was never any Bais Din involved in this case." I asked Horav Yisroel Belsky Shlita after hearing that he personally ruled that Kolko is innocent of any wrong doing why this is so. He responded that this is a case where the accused is the victim and the victim is the molester. I believe that for your own legitimacy you should reach out to properly understand the facts and dynamics of this case, as you seem to be condemning what might very well be an innocent man. I can be reached at [ deleted] You may want to clarify with Rabbi Simcha B. Cohen himself, this is his number: 732-370-2217. Rabbi Belsky: 718-941-5832. From what I understand the accused while on the quiet side, is not shy in his defense and speaks openly, perhaps contact him if you wish to hear his side. 

I responded:

Thank you for contacting me. I would be interested in publishing a post from you - or anyone else -  describing "the other side". I have been told that the accused has confessed to the social worker who evaluated him for the sake of the "beis din" which you claim never existed. That social worker was ordered to testify regarding his findings because the findings were no longer privileged information since he has shared them with the "beis din" that you claim doesn't exist.

I haven't said that Yosef Kolko is guilty - but that he has been charged with a serious crime , there is evidence to support the charges which I provided links to on my blog - and like many other cases e.g., Weberman - the victim and his family have been attacked. I am well aware that false accusations happen - but I am also fully aware that abuse does happen in the frum community.

I would like to talk with you to hear your view - I'll try calling this evening.

CNN: Abuse coverup in Orthodox community

What makes a pedophile tick?

Time Magazine   In a study published in Biological Psychiatry, Martin Walter and his colleagues found that the hypothalamic regions of the brains of pedophiles, a region heavily involved in sexual identity and behavior, are not stimulated by erotic images of adults the way that nonpedophiliac brains are. Neurologically, pedophiles don’t identify adults as sexually attractive. Other brain-imaging works by James Cantor and colleagues published in the Journal of Psychiatric Research and Kolja Schiltz and colleagues writing in the Archives of General Psychiatry confirm that pedophiles have impairments to brain structures involved in sexual development. Put simply, the brains of pedophiles are different from those of other adults.

More research will continue to clarify the origins of a behavior that is extremely difficult for most of us to understand and is deeply repugnant. One common misconception is that victims of childhood sexual abuse are highly likely to later become abusers themselves. Most of the studies that supported this view were retrospective studies of offenders asking them whether they had been abused. The problem is that many perpetrators see claims of their own abuse as a potential mitigating factor that will lead to leniency. However, even such retrospective studies like one published in the British Journal of Psychiatry in 2001 find that the majority of abusers do not report having been abused themselves as children. And a longitudinal 2003 study, a better standard for assessing risk, made clear that the vast majority of sexual-abuse victims do not become abusers. Those few who did tended to experience other forms of neglect and violence within the family. The victim of sexual assault who is otherwise cared for by his or her family is highly unlikely to become a future predator. Like many abnormal behaviors, pedophilia likely stems from a biological predisposition combined with exposure to a harsh environment. Child abuse is horrific; but the fact that it doesn’t produce an endless chain of future abuse is something we can take small comfort in.

Everyone is Good until Tested - responding to abuse

NYTimes by Maureen Dowd   In February 2001, McQueary was home one night watching the movie “Rudy,” about a runty football player who achieves his dream of playing at Notre Dame by the sheer force of his gutsy character. McQueary, a graduate assistant coach and former Penn State quarterback, was so inspired that he got up and went over to the locker room to get some tapes of prospective recruits. 

There he ran smack into his own character test. The strapping 6-foot-4 redhead told the court he saw his revered boss and former coach reflected in the mirror: Sandusky, Joe Paterno’s right hand, was grinding against a little boy in the shower in an “extremely sexual” position, their wet bodies making “skin-on-skin slapping sounds.” He met their eyes, Sandusky’s blank, the boy’s startled. 

“I’ve never been involved in anything remotely close to this,” the 37-year-old McQueary said. “You’re not sure what the heck to do, frankly.”

"Taliban mother" released after 4 years in jail

YNET  After four years behind bars, a Beit Shemesh resident known as "Taliban mom" was released from prison on Sunday. The woman was convicted in 2009 of aggravated assault and abuse of a minor for continually abusing six of her 12 children for 25 years.

The woman's husband was also convicted of abuse and failure to report the abuse to the authorities, and was sentenced to six months in prison.

The mother, who was nicknamed "Taliban mom" on account of her refusal to reveal her face during her trial, was originally charged with abusing all 12 of her children.

The final indictment included multiple counts of abuse against only six of the the children, both due to some of the cases falling under the statute of limitations, and the fact that several of the children refused to testify.

Frozen (potential) grandchildren - latest trend

 NYTimes   The technology to freeze a woman’s delicate eggs to be used later, when the eggs being released by her ovaries may no longer be viable, has improved sharply over the past decade. There currently is no single source of data on the number of women who are choosing to freeze their eggs, but doctors in the United States say the practice is slowly growing. 

The procedure remains expensive, generally costing between $8,000 and $18,000. And because it offers no guarantees and is still considered experimental by the American Society for Reproductive Medicine, a professional association, it can seem to some like an extravagant gamble. 

But it is a gamble that many would-be grandparents are willing to take with their daughters, even if it means navigating a potentially uncomfortable conversation.[...]

Even Ms. West’s mother, an international environmental and human rights lawyer, whom Ms. West described as “very career oriented” and “not the type to nag,” could not resist a joke after hearing how many of her daughter’s eggs had been successfully frozen. “I have 26 grandbabies!” she exclaimed.

 See this article  Psychology Today: How eggs are different from frozen waffles

Hi-tech exec - charged with online child abuse

YNet  A 41-year-old high-tech executive has been charged with a line of serious sexual offences involving minors on Sunday. A 44-page indictment filed with the Petah Tikva Magistrate's Court lists 33 counts based on the testimonies of female and male teenagers. The prosecution noted there is evidence for dozens of additional acts.

In one of the cases described in the indictment, the defendant solicited a 13-year-old boy to perform indecent acts and acts of sodomy on his 11-year-old sister.

Posing as sexually experienced teenage girl, the defendant victimized dozens of teenagers and convinced them to perform indecent acts as well as acts of rape and sodomy on camera on various online chat rooms.  [...]

Fight over Yated - Rav S. Auerbach's side

kikarhashabat

פרשת המחלוקת בבטאון יתד נאמן ממשיכה להסעיר את הציבור החרדי: שעה קלה לפני כניסת השבת הגיע הרב שמואל אריה לוין, מרבני ארגנטינה ומתלמידי מרן הרב שך זצ"ל, אל ביתו של הגר"ש אויערבך בירושלים שם זעק מרה כנגד ההשתלטות על העיתון

לדבריו, הוא זכה להיות בביתו של הרב שך בשעה שהכריז על הקמת העיתון, בכדי שיהיה שופר ראוי להפצת ההשקפה הטהורה ולהילחם את מלחמות היהדות הנאמנה.

"

לאחר שהוקם העיתון", אמר הרב לוין, "הרב שך בכה בפניי שאינו יכול לנוח ולהיות בשלווה כל זמן שרוצים להרוס את עיתון יתד נאמן

[....]

"ועכשיו", המשיך הרב לזעוק, "כואב הלב שהגיע "בעל בית" מניו יורק ומבקש להשתלט על העיתון בגלל שיש לו כסף".

$28 million award in religious abuse case

ABC News    A Northern California jury has awarded $28 million in damages to a woman who said the Jehovah's Witnesses allowed an adult member of a Fremont church to molest her when she was a child in the mid-1990s.

Alameda County jurors awarded $7 million in compensatory damages on Wednesday and another $21 million in punitive damages on Thursday to Candace Conti, her attorney, Rick Simons said.

"This is the largest jury verdict for a single victim in a religious child abuse case in the country," Simons told The Associated Press.

A Talmud chachom shouldn't serve his son?!

Kiddushin( 31b): R. Jacob b. Abbahu asked Abaye: ‘I, for instance, for whom my father pours out a cup [of wine] and my mother mixes it on my returning from the school, what am I to do’? — ‘Accept it from your mother,’ he replied: ‘but not from your father; for since he is a scholar, he may feel affronted.’

This is the halacha in Shulchan Aruch (Y.D. 240:25)

Thus that the halacha is that a father can serve his son a drink - but not if the father is a talmid chachom because it is against the mitzva to honor his father. Is this a din only for a son or it applies to every talmid chachom? Why will the father be upset if his son accepts? Why should the father even offer it if it in fact will cause him to be upset if his offer is accepted? Why wasn't Avraham upset at serving what he though were idol worshipers and in fact he is held up as a role model of chesed?

Perfectionism - On the Level