EthicsWalk addresses spiritual care as an ethical enterprise. It explores why relationships between spiritual care providers and those they serve need protection, and examines what that protection entails. PlainViews invites
our readers to share their responses
to each EthicsWalk column,
which will be published in the
following issue.
If you’d like to respond to EthicsWalk,
please send a comment of no more
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We look forward to hearing
from you.
Response
to a Response: No Easy
Answer (Ethically)
My first column (PlainViews Vol.1, No. 12) noted, “Ethics
is a process of making decisions about what course of action is moral in a
given
situation.
Ethical
dilemmas arise when there is more than one normatively human response for the
situation and the responses conflict.” Rev. Williamson’s letter (see below)
starkly illustrates the clash between competing ethical values: confidentiality
and justice.
Rule 503 of the Military Rules of Evidence compounds his dilemma: A person
has a privilege to refuse to disclose and to prevent another from disclosing
a confidential communication by the person to a clergyman or to a clergyman's
assistant, if such communication is made either as a formal act of religion
or as a matter of conscience.1[Parallel rules of evidence in state courts
apply to civilian chaplains].
Traditional jurisprudence defines justice as “the proper administration of
laws – the disposition of legal matters to render every man [sic]
his due.” 2 Ethicists broaden this to include equity and fairness
in determining what is “due.” 3
In Rev. Williamson’s situation, a Sergeant confessed spousal rape to him
but refused to confess to the military police. Legal evidence was inconclusive.
Without Rev. Williamson’s testimony there would be no court-martial. Rule
503 prohibits the chaplain from testifying if the communicant refuses to waive
the privilege (which belongs to the communicant, not to the chaplain).
The Brigade Chaplain reminds Rev. Williamson of the consequences to “the
couple, the Army base…, the clergy, and the Army as a whole,” if he violates
503. The Brigade Chaplain doesn’t note the consequence to the raped wife of
silence (confidentiality).
Justice might say, minimally, that the wife is “due” validation of her experience.
But confidentiality here has trumped justice. Why does American jurisprudence
(civil and military) countenance this outcome? The answer lies in English Common
Law and the U.S. Constitution’s First Amendment.4
English Common Law assumed the State is entitled to every person’s evidence
in any adjudication. However, it refused to breach the integrity of four relationships
(now embodied in U.S. federal and state laws largely through legislation) and
recognized testimonial privileges for: spouses, attorney-client, patient-doctor
and, before the Reformation, clergy-penitent.
In the United States clergy-penitent privilege was restored
to accommodate the First Amendment. A New York case held in 1813 that to require
a Catholic priest to betray the secrets of the confessional would violate the
free exercise clause. An 1847 case extended that privilege to all clergy since
to do otherwise would violate the establishment clause.
Justice, most fundamentally, is about relationships and upholding the covenants
of those relationships. Christian ethicist Karen Lebacqz says justice is not
conceptual. It is concrete and cannot be discussed in isolation from an understanding
of injustice. She asks, from whose perspective does justice determine what
is “due” ?
In Rev. Williamson’s situation, the rules of the system seem to require the
ethical value applied (confidentiality). But those who affirm Lebacqz’s assertion
that “violations of the covenant of mutual responsibility result in the need
for correction,” 5 should be profoundly troubled by this outcome.
Next month, child abuse reporting laws and clergy exemptions to them. More
ethical dilemmas
1 United States v. Benner, 57 MJ210 (CAAF 2002).
2 Black’s Law Dictionary, Sixth edition, 1990
3 Beauchamp, Tom and Childress, James.
Principles of Biomedical
Ethics,
5
thedition,
p. 226.
4 Congress shall make no law respecting an establishment of religion,
or prohibiting
the free exercise thereof.
5 Lebacqz, Karen.
Justice in an Unjust World. Minneapolis:
Ausburg
Press, 1987
Response from Ed Williamson:
This letter concerns Anne Underwood's Confidential and Privileged Communications article. As a former active duty Army Chaplain I had a
privileged information incident where a Sergeant confessed a spousal
rape to me, then refused to admit what he had done to the Military
Police when his wife reported him. The Military Police wanted me to testify based on what was told to me in confidence. I agonized on what to do! The physical evidence in the case was inconclusive and no help to the military court. Finally my brigade chaplain, Dean Rominger advised me to examine what my actions would have on the couple, the Army base
where I was stationed, the clergy and the Army as a whole. Based on that I was able to make a decision that I could live with. It is always good to ponder these things and have a response ready to go. I appreciated Anne Underwood's EthicsWalk article because just when you think it can never happen to you, it does!!!
Ed Williamson
BCC Staff Chaplain
CHRISTUS-St. Patrick Hospital
Anne Underwood
has an undergraduate degree in
religious studies, a master’s degree
in rural sociology and a mid-life
law degree obtained after working
over a decade as a college administrator.
She has mediated for the Maine
family courts since 1983. Currently
she serves as an advisor to the
ethics commissions of ACPE, APC,
the CCAR (Central Conference of
American Rabbis), and NAJC, and
consults with a variety of Protestant
faith communities on issues of
power, fair process, and congregational
conflict management. Her articles
on mediation and restorative justice
have appeared in the ACPE News,
The APC News and on the ACPE web
site. Articles on clergy accountability
and judicatory processes are published
by the Alban Institute and The
Journal on Religion and Abuse.
A chapter, “Clergy Sexual Misconduct:
A Justice Issue,” appears in Body
and Soul: Rethinking Sexuality
as Justice-Love
, Marvin Ellison
and Sylvia Thorson-Smith, editors,
The Pilgrim Press, 2003.
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