What do you guys make of this? Am I understanding correctly about a third party and the clergy is not bound unless otherwise stated?
Absent a waiver (Ca Evid § 912), both clergy and penitent--whether or not parties to the action--have a privilege to refuse to disclose a "penitential communication." [Ca Evid §§ 1033, 1034]
Clergy Confession and California Law...I found this interesting info.
I think the WTS's argument is that their "religious tradition" requires "penitential confession" to a committee of 3 elders, and that trying to say that that breaks confidentiality (because it is 3 instead of 1) is religious discrimination.
That may or may not be; however, it definitely does seem to be a breach of confidentiality when that committee sends an S-77 to the Society outlining the specific reason why someone is disfellowshipped. That, and the mandatory phone call to the legal desk as soon as such a confession is made.
According to what was mentioned by sir82, the confidentiality afforded between the penitent and the clergy should be null and void...since they've already breeched that confidentiality by making the phone call or filling out the form. Once they invite a third party who is NOT in the room to hear the confession at the time the penitent confesses, I would think they negate the right to use this law in their favor.
I seem to recall in some states that the clergy are mandated reporters of child abuse, though... No matter if there was a confession given between a clergy member and a congregation member, it's supposed to be reported to police.
ETA: I just did a quick web search and clergy are enumerated as mandated reporters of child abuse in the state of California. Penitent-clergy privilege is granted, but limited to pastoral communications.
Confidentiality is also breached when notes are taken. That is something that happens at judicial committee hearings and files are also maintained about the meeting. So the WTS cannot claim that judicial committee meetings are privileged. They involve more than two people; additional parties can be consulted; the decision can be appealed; and files are created and maintained. No court in this country will rule that these meetings are protected under the penitent privilege rule. So if the WTS wants to argue that the Candace Conti verdict, for example, should be reversed on appeal because the privilege was violated, it will lose.
Quendi, I was thinking the same thing. The very NAME of the proceedings contains the word JUDICIAL. It's basically a hearing, not a confessional. The person might be confessing to some sin, but it's in the name of being judged by a "jury" of three men and being determined repentant or not. And with everything else involved in a judicial committee, right down to the "jury" deliberating, any court can see this is not a confessional situation.