Download Rules for Disclosing Privileged Communication

….and the role of the Chaplain and Instructor
Prevention starts with Initial Entry Training
“Sexual Assault Awareness” Mentorship:
Activity Points: 3 (Research: 2 hrs;
Supervision: 1 hr) 10/5/07
Instructor: Joseph Hughes
….and the role of the Chaplain and Instructor
Prevention starts with Initial Entry Training
Instructor: Joseph Hughes
Restricted Reporting
• Allows a Soldier who is a sexual assault victim to
disclose the details of his/her assault to specifically
identified individuals and receive medical treatment and
counseling, without triggering the official investigative
process
• Report confidentially to:
– Victim Advocate (VA)
– Sexual Assault Response Coordinator (SARC)
– Healthcare Provider
– Chaplain
CJASA101/Nov. 05/Slide-3
Restricted Reporting Purpose
• Give victims additional time and increased
control
• Empower victims
• Give senior mission commanders a clearer
picture of the sexual violence within their
command
• Enhance a commander’s ability to provide an
environment which is safe
CJASA101/Nov. 05/Slide-4
Unrestricted Reporting
• Four Restricted Reporting • Staff Judge Advocate
Resources (SARC, VA,
(SJA)
Healthcare Provider, Chaplain)
• Local and State Police
• Chain of Command
• 911
• Military Police
• Army One Source (AOS)
• Criminal Investigation
– Available 24 hours a day, 7
Command (CID)
days a week
– 1-800-464-8107 (CONUS)
• Army Community
Services (ACS)
CJASA101/Nov. 05/Slide-5
Unrestricted Reporting Purpose
• Ensure widest range of rights and
protections
• Provide commander support
• Provide full investigation to hold
offender(s) accountable
• Enhance community and Soldier safety
CJASA101/Nov. 05/Slide-6
Consequences of Not Reporting
• Possibility that perpetrator may assault others
• Inability of authorities to conduct an investigation
• Inability of Army to provide medical care and
counseling
• Improper care provided to the victim
• Inability to discipline perpetrators
• Degradation of unit morale and readiness
CJASA101/Nov. 05/Slide-7
Verbal
• Threats/insults
• Offensive/suggestive comments
• Messages w/ sexual content
• Pressure for dates
• Propositions
• Offensive jokes/teasing
• Whistles/catcalls
Nonverbal
• Suggestive gestures/looks
(winks, licking lips).
• Staring/leering.
• Displaying posters, photos or
drawings of sexual nature.
Physical
• Cornering/trapping.
• Pinching, grabbing/patting.
• Touching, hugging/kissing
• Rape/attempted rape.
w/ Sexual Harassment
1. Confront the harasser.
2. Use and intermediary.
3. Write a letter.
4. Keep a journal.
5. Request training.
6. Report any incident.
• Know the policy.
• Set a positive example-respect
• Avoid making assumptions.
• Think before making personal
comments-impact not intent.
• Don’t go w/ the crowd-voice opinions
• Be supportive of people-(harassee)
…when Sexually Harassed!
1. Confront the harasser.
2. Talk to your supervisor(if
needed)
3. Contact other sources
4. Lastly, consider filing
a formal complaint
• Never ignore sexual Harassment
• Don’t hesitate seeking help
• Weigh options carefullynot reporting incident
• Make policies known to all
• Treat every incident seriously
• Have an “Open Door” Policy
• Always keep matters confidential
Sexual Assault -- Checklist
SPECIFIC SITUATIONS
Sexual Assault
BEHAVIOR/SIGNS
Depression
Anxiety over becoming
pregnant/sexually transmitted
disease
Victim may fear people, do not
believe or understand them
Victim may find it difficult to trust
others
Victim may be concerned about
seeing their assailant again
Victim may have doubts about
telling others what happened. They
may have doubts about reporting
the crime to police.
Concerns expressed over reaction
from family/loved ones
Concerns over potential publicity
Fear of being assaulted again
TAILORED SUPPORT
First, ensure physical safety of the victim
Advise against destroying evidence by
bathing or washing clothes prior to going to
the medical facility
Assure the victim feels safe—determine if
the alleged assailant is still nearby and if
the victim needs protection
Assist with or provide transportation for
the victim to the hospital for an examination
Support the victim in contacting the police
Allow the victim to exercise as much
control over the situation as possible
Listen/engage in quiet support
Help coordinate a personal friend or
professional to immediately join the
individual
Be available in the weeks and months
following the assault. Be sure that the
victim can turn to you for support.
Emphasize to the victim the need for
additional support; refer to available
counseling groups and other victim services
Sexually Harassed-- Checklist
SPECIFIC SITUATIONS
Sexually Harassed
BEHAVIOR/SIGNS
Self-blame
Denial
Fear of retaliation
Fear of not being believed
TAILORED SUPPORT
Consult with Military Equal Opportunity
(MEO) Office
Be available/receptive to potential victims
Ensure the victim that you are there to
help
Be attentive to the potential risk of
violence if the harassment continues or
worsens
Refer to base helping agency such as Life
Skills Support Center (LSSC), if the person
is significantly distressed through the
investigative process
Consult with local Staff Judge Advocate
Office
Forward the complaint to the General
Court-Martial Convening Authority within 72
hours
Advise individual who submitted the
complaint that an investigation has been
initiated
Ensure investigation is completed within
14 days of its inception
Sex in the Forbidden Zone
(MORAL LEADERSHIP TRAINING IN SEXUAL ASSAULT
AWARENESS)
Outline
• Introduction
• Definitions
• Relationships of Value
The Lure for Men
The Lure for Women
• Wounds of Women
• Wounds of Men
• Women in the Forbidden Zone
• Men in the Forbidden Zone
• A Guide to Help us Out
Multi-system Pressures on the Students
Work System
pressures
Present family
Pressures
Family
problems
?
Work
Pressures
School
Responsibilities
Finance
Personal Life
Failure/Re-class/PT
Divorce/Separation
Appearances
Whether particular
circumstances create
an appearance that the
law or these standards
have been violated shall
be determined from the
perspective of a
reasonable person with
knowledge of the
relevant facts.
Definitions
SEX IN THE FORBIDDEN ZONE is:
“Sexual behavior between a man and a
woman who have a professional
relationship based on TRUST,
specifically when the man is the
woman’s doctor, therapist, pastor,
lawyer, teacher, or workplace mentor.”
--Dr. P. Rutter
Definitions (cont.)
• Boundaries
• Sexual Behavior
• Sexual Invasion
• Sexual Fantasy
• Abuse
• Power
• Trust
• Psyche
• Wounds
1970’s
1960’s
Values of young people
have changed over the
years. What influences
their decisions?
Relationships of Value:
THE PSYCHOLOGICAL HEART
OF THE FORBIDDEN ZONE
Why do otherwise healthy men and women in a
professional relationship cross the boundary into
the sexual Forbidden Zone?
• Trying to heal wounds; meet unmet needs
• Based on upbringing and life experiences
• Different for women and men
• Expecting too much from the relationship
The Lure of the Forbidden
Zone for Men: Sexual Healing
• Trying to Heal a Wounded Self-Esteem
• Masculine myth of the feminine
-- Women should defer to men in all
things (practical or intimate)
-- Women have irresistible, seductive
powers (therefore, it’s not my fault)
-- Women are dark and destructive (so
they deserve whatever they get)
The Lure of the Forbidden
Zone for Women: Hope
• Feelings of hope for healing past hurts
• Feelings of hope for better tomorrow
where true self is awakened & acknowledged
• The nonsexual relationship meant so much
that breaking it off (by saying no to sex) was
unthinkable
The Wounds of Women
•Boundary Invasion--feeling of no control
over their own boundaries
•Profound Childhood Aloneness-- crave
attention; will use sex to get that attention
•Exploited Compassion-- emotional healer
of family; feels need to heal all men
•Devalued Outer Potential-- women are to
be at home; mentors offer them an “out”
The Wounds of Men
WHO ME? . . . . . . WOUNDED? (see p. 105)
• Wounds from the Culture
- Men can’t be weak / vulnerable
- Denial leads to quest for healing
- Most men search for healing sexually
• Wounds from the Father--lack of intimacy
• Wounds from the Mother
- Smothering -> disrespect of boundaries
- Distant -> emotionally starved
- Victims -> this is how men treat women
The Results of Betrayal
“There can be no such thing in the adult sense
as consenting to a sexual act by a woman with a
man who has power over her,” (p. 101, Rutter).
Violations of the boundaries between a
professional man and his female protogee are,
psychologically speaking, like acts of rape and
incest!
“But she said ‘yes’ . . . .”
Stages of Men in the
Forbidden Zone
•
•
•
•
•
•
•
•
•
•
I’m looking her over
Is she interested in me?
What would she be like to touch?
I can’t stop fantasizing about her.
I’ll ask her about her sex life.
I’ll ask her if she fantasizes about me.
I’ll close the physical space between us.
I’ll become more overtly suggestive to her.
I think she’s being seductive towards me.
I’m fantasizing about exactly how it will happen.
Stages of Men in the
Forbidden Zone (cont.)
• Considerations:
-- Can I get away with it?
-- If it feels right, it can’t be wrong.
-- Deep inner voice of conscience.
• Restraint gone--decision to move ahead
• Dual Relationship--arranging a meeting
• Do we talk about it first?
• The aftermath--love and marriage
Stages of Men in the
Forbidden Zone (cont.)
Holding Back -- A Positive Response
 Holding back out of responsibility to
protect the woman
 Holding back out of moral choice
 Holding back out of fear
 Holding back out of service to inner self
A Guide for Men
• If you’re already on the edge:
-- Stop and get help
-- Don’t act on the impulse
-- Relinquish her as a potential
partner
-- Terminate the relationship
A Guide for Men (cont.)
• We’re ALL vulnerable
-- Recognize the importance of your own fantasy
-- Acknowledge sexual abuse of trust is WRONG
-- Take stock of your own problems
-- Realize the damage done to women
-- Help your co-workers
-- Uphold laws and the ethical codes of conduct
-- Get help from someone
-- Don’t be a silent bystander
A Guide for Men (cont.)
• Practical things we can do:
-- Never counsel alone
-- Recognize and admit your own weaknesses
-- Talk to someone you trust
-- Keep relationships on a professional level
-- Be open to the warning signs
-- Ask to be moved
-- Develop healthy relationships away from
work
Other suggestions????
Privileged Communications
(Counseling those who have experienced
Sexual Harassment)
References
• Military Rule of Evidence 503
• AR 165-1
• AR 608-18
Purpose
Explain a person’s 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.
Agenda
• Privileged Communications
• Rules for disclosing Privileged
Communications
• Sensitive Communications
• Discussion Problems
• Interpretation of Right
• Supervisory Issues
Privileged
Communications For the
Chaplain as Counselor
Privileged Communication -Definition
Privileged Communications. A privileged
communication is defined as any
communication to a chaplain or chaplain
assistant given as a formal act of religion
or as a matter of conscience, that is, any
communication that is made in confidence
to a chaplain acting as a spiritual advisor or
to a chaplain
(Cont on next slide)
Privileged Communication -Definition
cont.
assistant aiding as a spiritual advisor,
and that is not intended to be
disclosed to third persons other than
those to whom disclosure furthers the
purpose of the communication, or to
those reasonably necessary for the
transmission of the communication.
Rules for Disclosing Privileged
Communication
• The privilege against disclosure belongs
to the “penitent.”
• A chaplain or chaplain assistant may
NOT disclose the content of privileged
communication without the express
consent,of the person to whom the
privilege belongs.
Military Rule of Evidence
(M.R.E.) 503
(a) General rule of privilege. 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.
“Confidential” Communication – M.R.E. 503(b)
(2) A communication is “confidential” if made to a
clergyman in the clergyman’s capacity as a spiritual
advisor or to a clergyman’s assistant in the
assistant’s official capacity and is not intended to
be disclosed to third persons other than those to
whom disclosure is in the furtherance of the
purpose of the communication or to those
reasonably necessary for the transmission of the
communication.
CJASA101/Nov. 05/Slide-52
“Clergyman” - M.R.E. 503(b)
(1) A “clergyman” is a minister, priest, rabbi, chaplain,
or other similar functionary of a religious
organization, or an individual reasonably believed
to be so by the person consulting the clergyman.”
CJASA101/Nov. 05/Slide-53
Rules for Disclosing Privileged
Communications
• If a military judge or other presiding official
determines that no privilege exists, a chaplain
or chaplain assistant may be subject to
punitive or adverse administrative action for
failing to comply with the ruling.
• Also, a chaplain should not presume that the
military concepts of privileged communication
will prevent disclosure in state courts.
CJASA101/Nov. 05/Slide-54
Rules for Disclosing Privileged
Communications -- cont’d
•
•
Chaplains, in deciding whether or not to
disclose information, must also consider the
tenets of their faith, the provisions of their
ordination vows, and their individual
consciences.
Not disclosing information when a legal
obligation to disclose information exists, may
result in punitive or adverse administrative
action.
CJASA101/Nov. 05/Slide-55
Rules for Disclosing Privileged
Communications -- cont’d
• Due to the complexity and importance of
preventing unauthorized disclosure of
information, chaplains and chaplain
assistants are advised to consult with
supervisors, seek legal counsel from the Staff
Judge Advocate, or ask for policy guidance
from the Chief of Chaplains (OCCH).
CJASA101/Nov. 05/Slide-56
Sensitive Information
Sensitive Information -- Definition
• Any non-privileged communication to a
chaplain, chaplain assistant, or other
chaplain personnel that involves
personally sensitive information that
would not be a proper subject for general
dissemination.
CJASA101/Nov. 05/Slide-58
Sensitive Information -- Definition
• Sensitive information should
normally not be disclosed unless the
declarent expressly permits
disclosure.
CJASA101/Nov. 05/Slide-59
Sensitive Information -- Definition
• Knowledge of a soldier’s enrollment
in Drug & Alcohol Programs,
Psychiatric Treatment, Prior Arrest or
Prior Hospitalization is generally
considered as Sensitive Information.
CJASA101/Nov. 05/Slide-60
Rules for Disclosing Sensitive Information
• Sensitive information should NOT be
disclosed unless the individual about
whom the information pertains
expressly consents.
• There is generally no legal impediment
to disclosure of this information.
• In appropriate cases, such information
should be disclosed.
CJASA101/Nov. 05/Slide-61
Rules for Disclosing Sensitive Information
• Remember to consider the tenets of your
faith, the provisions of your ordination
vows, and your individual conscience.
• Chaplains who refuse to disclose
Sensitive Information when required to do
so may be subject to punitive and adverse
administrative action.
CJASA101/Nov. 05/Slide-62
Rules for Disclosing Sensitive Information
• Proper handling of Sensitive
Information reinforces trust in
the Chaplaincy by soldiers and
their family members.
CJASA101/Nov. 05/Slide-63
Discussion Problems
U.S. v. Moreno
Three Part Test
1. Communication must be formal act
of religion or as a matter of
conscience.
2. Must be made to a clergyman in his
capacity as a spiritual advisor.
3. Communication must be intended
to be confidential.
CJASA101/Nov. 05/Slide-65
Discussion Problem #1
• Soldier makes appointment with battalion Chaplain
• Soldier feels he’d hurt himself unless he got some
help
• Chaplain warns soldier that expressions of intent to
harm self/others would not be treated confidentially
• Chaplain testifies in court to support motion to
suppress
• Chaplain provides statements made before warning
CJASA101/Nov. 05/Slide-66
U.S. v. ISHAM
• Chaplains testimony was protected.
• The Soldier went to the Chaplain in his
spiritual capacity at a business hour
appointment.
• The Soldier made statements while under
great mental distress & only to get help.
• Chaplain and Soldiers intent was to
preserve confidentiality but only disclose
information that was necessary to help the
Soldier.
CJASA101/Nov. 05/Slide-67
Discussion Problem #2
• Soldier, Catholic, married, having family problems
• Engaged in sexual acts with daughter
• Calls Pastor, also father-in-law, discloses sexual acts
• “Dad, can you help me? My marriage is falling apart …”
• “Son, is it true you took liberties with your daughter?”
• “Yes, Dad, and I feel like a dog … will you pray for me?”
• “Yes, I will.”
• Soldier not a member of Pastor’s church
CJASA101/Nov. 05/Slide-68
U.S. v. Coleman
• Statements were allowed.
• Statements were to father-in-law not
Pastor.
• Not made as a formal act of religion
or matter of conscience.
• Not intended to be confidential.
CJASA101/Nov. 05/Slide-69
Interpretation of Right
Interpretation of Right
MORAL
CJASA101/Nov. 05/Slide-71
Individual
Personal Theology/
Morality/Conscience interprets
what is right
Interpretation of Right
MORAL
LEGAL
Individual
Personal Theology/
Morality/Conscience interprets
what is right
Collective
Society interprets what is right
(Rules of evidence).
CJASA101/Nov. 05/Slide-72
Interpretation of Right
MORAL
Individual
Personal Theology/
Morality/Conscience interprets
what is right
Collective
LEGAL
PROFESSIONAL
ETHICS
CJASA101/Nov. 05/Slide-73
Society interprets what is right
(Rules of evidence).
Military Chaplain Corps interprets
what is right
(Chaplain doctrine / policy)
Interpretation of Right
MORAL
PROFESSIONAL
ETHICS
LEGAL
Risk results from disagreement
in interpretation
CJASA101/Nov. 05/Slide-74
Supervisory Issues For
Chaplains and Instructors
Supervisory Issues
• Chaplain Supervisors must recognize
privileged communication and sensitive
information issues and provide guidance to
subordinates dealing with these issues in
ministry.
• Chaplain Supervisors must also
understand their responsibilities regarding
subordinates when their subordinates
commit misconduct or perform
unsatisfactorily.
CJASA101/Nov. 05/Slide-76
Questions?