Legislature(2003 - 2004)
03/18/2003 08:01 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 92-CLERGY TO REPORT CHILD ABUSE Number 2828 CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 92, "An Act relating to reports by members of the clergy and custodians of clerical records who have reasonable cause to suspect that a child has suffered harm as a result of child abuse or neglect." Number 2810 REPRESENTATIVE HOLM moved to adopt the proposed committee substitute (CS), Version 23-LS0257\I, Lauterbach, 3/12/03, as a work draft. CHAIR WEYHRAUCH said he wanted to hear from Richard Block. Number 2761 RICHARD BLOCK, Christian Science Committee on Publication for Alaska, noted that he'd testified at the [March 6, 2003] hearing on HB 92, at which time he'd indicated his organization didn't take a position on HB 92 in general, but recognized the important problem it attempts to address. Mentioning a proposed CS from the prior hearing [Version D, adopted March 6, 2003], he pointed out that an important provision in the original bill had been removed; however, he'd spoken with Representative Lynn's staff, who [added] language in Version I. He said [the Christian Science Committee on Publication for Alaska] finds Version I acceptable. Number 2690 CHAIR WEYHRAUCH announced that without objection, Version I was before the committee for discussion. Number 2685 REPRESENTATIVE LYNN, sponsor of HB 92, thanked members for their constructive questions and concerns expressed at the previous hearing. He said the whole purpose of HB 92 is to help protect children and all the various faith communities. He told the committee that he thinks they will like the changes [in Version I]. He deferred to his staff to address those questions. Number 2628 W.M. THOMAS MOFFATT, Rev., Staff to Representative Bob Lynn, Alaska State Legislature, began by noting that Chair Weyhrauch had expressed concern previously regarding abuse of elders. Father Thomas said, "I think, when we talked with your office, that's covered in another section of the bill under 'abuse of the vulnerable', where, parenthetically, 15 categories of individuals who are required to report - number 10 of which is the clergy. Here, of course, in this bill, we're seeking to add clergy as [paragraph (9)]." FATHER THOMAS referred to the concerns stated by Representatives Holm and Seaton with respect to the reporting of neglect as well as abuse. He explained that the language in Version I was changed so that the clergy would only be required to report abuse. He referred to page 2, beginning on line 10, which read: a clergy member is not required to report a reasonable suspicion of harm to a child if the clergy member believes that the harm comes only from neglect. FATHER THOMAS noted that because of a query by Representative Berkowitz during the previous hearings asking for the definition of a "recognized religious community", [the sponsor] had removed the word "recognized". He said Representative Gruenberg had brought up a question regarding the "look-back" provision in the original bill that would only apply to the clergy. Father Thomas said that provision was removed "to place the clergy on an even keel with the other eight categories required to report." FATHER THOMAS reported that at "bishop" was added at the request of Representative Dahlstrom's office on [page 3, line 1] of Version I; "Christian Science practitioner" was added at the behest of a representative of the Christian Science Church; "pastor" was added in response to testimony from "the evangelical community"; and the phrase "or person in a similar leadership position" was added as a "catch-all." Father Thomas opined that the changes make HB 92 a much better bill. REPRESENTATIVE GRUENBERG and REPRESENTATIVE BERKOWITZ commended Representative Lynn and Father Thomas for their efforts. Number 2369 REPRESENTATIVE BERKOWITZ said he is a strong believer in the separation of church and state; one reason is that it protects churches from the state. Expressing concern that the definition of "clergy" singles out a particular faith, he referred to the definition of penitential communication in Section 2 [page 2, lines 17-23], which read: In this subsection, "penitential communication" means a communication intended to be in confidence, including a sacramental confession made to a clergy member, who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline, tenets, customs, or practices of the church, denomination, or organization, has a duty to keep those communications secret. REPRESENTATIVE BERKOWITZ said [the definition] in some ways makes those disciplines, tenets, and customs elements of proof at a trial and thus puts a judge or a jury in a position of determining whether these are disciplines, tenets, or customs, which seems to cross the barrier between church and state. He explained that he is just looking for a preferable way of defining what "penitential communication" means, because one other problem he has with [Section 2, text stated previously] is that it doesn't describe whom [the communication] is between. It could be between people who are repeating hearsay and gossip, for example. REPRESENTATIVE BERKOWITZ therefore suggested adding "between clergy member" after the word confidence [on line 18], followed perhaps by "and a penitent". He said he doesn't think it needs to be any broader, and that "getting into" [the subject of lines 19-23] is incredibly problematic. Number 2210 REPRESENTATIVE GRUENBERG referred to part of [Section 1, paragraph (9), page 2, lines 9-12], which read: (9) clergy members, except as provided in AS 47.17.021 and except that, notwithstanding other provisions of this section or this chapter, a clergy member is not required to report a reasonable suspicion of harm to a child if the clergy member believes that the harm comes only from neglect. REPRESENTATIVE GRUENBERG suggested that rather than "discipline, tenets, customs, or practices", the focus could be on whether the clergy member believed he/she had a duty to keep the communication secret. Furthermore, regarding line 12, he asked whether that belief should be subjective or objective. He explained, "When you say 'if somebody believes,' that's ... subjective whether this person actually believed." He defined "objective" as whether it was a reasonable belief - "whether the person reasonably believed ... they had a duty to keep the communications secret, on the one hand, and on the other, reasonably believed that the harm came only from neglect." Number 2155 REPRESENTATIVE GRUENBERG said he thinks the word "penitent" comes from the word "repent." He added, "I don't know you want to leave it to only people who are repenting." He said he thinks the priest-penitent privilege is the broadest evidentiary privilege in the law. He related his belief that clergy should be absolutely protected in their ability to communicate with anyone who comes to them in a confidential manner, not just with members of their congregation. Number 2095 REPRESENTATIVE SEATON referred to Rule 506 of the [Rules of Evidence, handed out by Representative Gruenberg during the previous hearing on HB 92]. He said he supports the intent of the bill, but asked if [the issues being discussed by the committee] would modify the [Rules of Evidence]. CHAIR WEYHRAUCH said no. In response to a follow-up question, he said, "There's absolutely no modification of a court rule or evidence rule in this. It may have influenced its application or interpretation or provide nuance, but ... specifically to this bill, there's no court or evidentiary rule amendment." Number 1999 REPRESENTATIVE BERKOWITZ asked, "The same men that added a subsequent trial - the penitent or the individual - could assert the privilege in evidentiary fashion, which would preclude admission of a confession?" REPRESENTATIVE GRUENBERG observed that Chip Wagoner was shaking his head and appeared to want to say something. REPRESENTATIVE LYNN noted that Bob Flint, an attorney, was also available for comment. Number 1945 CHIP WAGONER, Lobbyist for the Alaska Catholic Conference, said that conference is the entity that the Roman Catholic bishops of Alaska use to speak on public policy matters. He noted that the exception to the evidentiary rules is very limited in that it only applies to the proceedings and actions that are before the court. MR. WAGONER mentioned an Alaska case in which a man who was a clergy member, pastor, and psychologist counseled a member of his congregation; during that session, the member brought up the fact that he'd sexually abused a child, and the clergyman reported it. The case went to court, and the court held that the [exception in the evidentiary rules] didn't apply because there was no case, action, or proceeding at the time of the reporting. Therefore, Mr. Wagoner said he didn't think the [Rules of Evidence] exception would "apply to this issue of reporting, at this time." Number 1814 REPRESENTATIVE SEATON responded, "I appreciate this. I just wanted to make sure that it was brought out and that we figured out whether we had a problem before we forward this." Number 1803 REPRESENTATIVE GRUENBERG said he thinks the relevance of Mr. Wagoner's testimony to Representative Seaton's question is that the [evidentiary rule] only applies to a person who is testifying in court. He asked, "Am I right?" MR. WAGONER replied that the issue is that the [evidentiary rule] did not apply in the aforementioned case because there was no action preceding the case at the time of the reporting. He said he was absolutely sure that this is what that case said. REPRESENTATIVE BERKOWITZ suggested the issue might be discussed in the House Judiciary Standing Committee. CHAIR WEYHRAUCH said the current committee must decide if it believes it's in the state's interest to have information of child abuse reported that was obtained in a "religious forum." Number 1625 REPRESENTATIVE GRUENBERG asked, "If a person gets a communication and then reports it, does that basically waive the privilege, in some manner, in a subsequent court proceeding?" MR. WAGONER said yes, according to the way he'd read the aforementioned case. REPRESENTATIVE SEATON said he wanted to flag [this issue] for the House Judiciary Standing Committee. He added that he is "happy enough with where the bill is." Number 1531 MR. BLOCK referred to Representative Berkowitz's previous comment about the definition of "clergy member" and including reference to a specific religion; Mr. Block surmised that Representative Berkowitz was referring to the Christian Science practitioner. Mr. Block explained that any reference to that was removed in the first proposed CS. He mentioned a past discussion with Father Thomas and a request for the language - he said he thinks it was "religious practitioner" - to be put back in. He said he thinks the concern was that the language wasn't clearly defined. At the time of that discussion, Mr. Block said, [Father Thomas] asked if using the term "Christian Science practitioner" wouldn't be more specific and more acceptable. Mr. Block said he agreed with Father Thomas at that time, which is "how that term got in there." MR. BLOCK noted that the term "religious healing practitioner" is currently used in statute and is "somewhat more generic, but also sufficiently specific." He said, "We would accept that language, as well, if that would tend to make it less denominational, but preserve the intent of both our concerns and the objectives of the bill." Number 1410 MR. BLOCK referred to discussion regarding the definition of "penitential communication" as being between the penitent and the clergy. Noting that he isn't sure what that means without a definition of who the penitent is, Mr. Block pointed out that somebody coming to a religious healing practitioner could be the alleged perpetrator seeking healing and how to change his/her own course of action; however, it could be the victim seeking healing of the impact that such an event had. He added, "That communication, as well, under the tenets and bylaws of our church, [is] required to be kept confidential. And, certainly, we would want to see those communications protected as well." Mr. Block said [the Christian Science Committee on Publication for Alaska] thinks the current language in subsection (a) is appropriate and sufficiently specific, and that it is appropriate to move forward with the bill. CHAIR WEYHRAUCH said, "I'm not sure he had your intent down, Representative Berkowitz. I didn't pick that up from your line of questioning." Number 1298 JOANNE GIBBENS, Program Administrator, Division of Family & Youth Services (DFYS), Department of Health & Social Services, said she wanted to share some information regarding to the issue of neglect as it pertains to mandatory reporting. She reminded the committee that all "current mandated reporters" are required to report if they have reasonable cause to suspect that a child has suffered harm as a result of neglect. She suggested it is important to look at the issue of neglect as it pertains to the actual child-in-need-of-aid (CINA) statutes in AS 47.10, which govern legal issues regarding the department's taking custody of a child; that happens when the court determines a child could be a child in need of aid. Citing AS 47.10.014 and AS 47.10.019, she told members: Receiving a call reporting neglect does not automatically mean that a social worker comes to the door and takes custody of a child. Very often, by receiving a call concerning neglect, the division is able to assess the situation and provide help that the family may not have been able to receive, had we not been called. Often, we are able to arrange for assistance to families with things like protective daycare, which they would not have access to without our intervention. In other situations, a call concerning neglect may uncover more serious issues in the home, for example, substance or physical abuse. Responding to concerns of neglect often helps us to assist families before situations get worse. Sometimes the stresses in families can escalate to situations where children are more severely abused. And responding before those things happen may protect children and help families. I guess the point I'm making here is that just because a family is poor is not reason, in and of itself, to call DFYS for a concern of neglect. I would also like to add that should members of the clergy become mandated reporters, the division would work with the clergy on providing education and training being a mandated reporter, like we do for others. Number 1042 REPRESENTATIVE GRUENBERG recalled that a number of years ago the legislature amended perhaps AS 47.17 to include emotional harm [as an abuse] that must be reported. He asked where the citation of statute is that says what people must report. MS. GIBBENS responded that AS 47.17.020 lists persons required to report, and AS 47.17.290 gives the definition. REPRESENTATIVE GRUENBERG referred to the definition of child abuse or neglect in AS 47.17.290. He said, "My recollection is, it was required under federal law. And that's already in the law, and I think that whether or not we add neglect in this bill, that's what you have to report under current law, right?" MS. GIBBENS answered yes. She added that she is not certain that the way the current version of the bill is written would, potentially, alter that. REPRESENTATIVE GRUENBERG said he thinks this law should be absolutely congruent with the rest of the law. Otherwise, federal funding might be jeopardized, for example. MS. GIBBENS said she wasn't sure it would jeopardize federal funding. REPRESENTATIVE GRUENBERG recalled that the legislature specifically had to put that language in to comply with federal law. He said he doesn't want to violate federal law. Number 0794 REPRESENTATIVE SEATON said his sole concern regarding the bill is that the committee may be putting the clergy "in a spot" of reporting something that may [result] in violating statute and being guilty of a misdemeanor for every case when they have a suspicion that there may be neglect. Number 0580 REPRESENTATIVE BERKOWITZ suggested that the previously stated intent of DFYS to help members of the clergy should be reflected in a positive fiscal note. [Ms. Gibbens nodded in agreement.] Number 0524 REPRESENTATIVE BERKOWITZ noted that [HB 92] has a subsequent referral to the House Health, Education and Social Services Standing Committee. He opined that it would be more appropriate that it go to the House Judiciary Standing Committee. REPRESENTATIVE LYNN concurred. Number 0512 REPRESENTATIVE GRUENBERG said he supports Representative Seaton's previous remarks. He pointed out that [Ms. Gibbens'] initial discussion of the definition of neglect came from a different part of Title 47. He explained that this doesn't deal with [AS] 47.10, but [AS] 47.17. "And the definitions you were using do not apply," he said, offering his belief that the definitions in AS 47.17 apply to this bill, and that there is a definition of what has to be reported already in [AS] 47.17, which he'd just read. He sought a legal opinion on whether using a definition that excludes neglect might possibly not be in compliance with federal law. MS. GIBBENS deferred to Mr. Brinkman, who she said hears the civil DFYS cases. Number 0339 BRADLEY BRINKMAN, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law, told the committee he is one of two attorneys who does the day-to-day CINA cases for Southeast Alaska. Referring to Representative Gruenberg's question, he said he didn't know. Mentioning the mandates required by the domestic violence laws that went into effect in the last five years and the monies that have flowed through the state with regard to that, he suggested Ms. Gibbens might know that. MR. BRINKMAN highlighted that AS 47.17 mirrors many of the requirements in AS 47.10. The mandatory reporting laws are made to address neglect and abuse that a child may suffer and to stop that abuse before it becomes severe or before removal from the home is necessary. He said abuse and neglect have always been consistent throughout both sides of the statute, and to carve out an exception in one-half of the statute, for one out of nine categories [of reporters], may lead to confusion later. For example, those in the other eight categories may say they only want to report neglect or only want to report abuse. MR. BRINKMAN said he understands Representative Seaton's concern regarding interference with the relationship between a pastor or priest and his congregation, but the bottom line is this: the end result of neglect is the same for the child as it is with sexual abuse. He said a parent, because of an addiction like gambling, for example, may be neglecting a child by not providing that child with food, which could result in malnutrition or starvation, or [not providing the home with] fuel oil, which might result in pneumonia. He said, "We think that that should apply equally in the mandatory reporting requirements, just as abuse, because the ultimate result - the harm to the child - would be ... the same." TAPE 03-28, SIDE A Number 0001 REPRESENTATIVE SEATON said all the other [categories currently required to report] are required to "have some kind of a state license," but clergy are not. He said he thinks "we" are expanding the state's reach too far into the matter of the clergy by requiring that clergy members, who are not licensed by the state, report anyone to the police who they suspect fails to provide necessary food, care, clothing, shelter, or medical attention for a child. Number 0172 CHAIR WEYHRAUCH noted that both the original bill and the proposed CS [Version I] have received broad ecclesiastical support. He said he thinks clergy would be the ones to bring forward concern or opposition, and he has heard none. REPRESENTATIVE SEATON noted that there had been response from clergy which indicated they had looked at the bill from the aspect of child abuse, not from the aspect of neglect. Number 0289 REPRESENTATIVE LYNN said he supports the language of Version I. He said [Representative Seaton's concerns] may be included in future legislation, but are "beyond the scope of what we're trying to do here." REPRESENTATIVE SEATON explained that the idea behind his concern came from a witness's testimony during a previous hearing that, in part, neglect is based on a community standard. Representative Seaton said his reading of the law showed that is not the case, however; every clergy [member], whether in a rural or urban area, would be required to report. The reporting is in state statute; it is not a community standard. He reiterated that this is his problem with the bill "if it goes back the other way." Number 0443 CHAIR WEYHRAUCH, referring to the neglect issue, community standard, and a previous statement by Representative Berkowitz, said the definition is this: "You know it when you see it, and you don't know it until a jury defines what negligence and neglect was." A jury of peers defines the community standard [as it relates to neglect], he suggested. REPRESENTATIVE SEATON responded that the bill doesn't ask the clergy to define a community standard, but asks them to report, based on a statute. CHAIR WEYHRAUCH remarked, "Except from the law, except for neglect. I understand that." Number 0515 REPRESENTATIVE HOLM noted that the committee is making policy for the whole state, not for Anchorage or Fairbanks, but for many [rural] places that will have a different idea of how to parent. He suggested that perhaps what the committee is addressing is the tolerance of society for aberrant behavior or for what is called "antisocial" behavior - behavior that does not meet the norms. He said he has a problem with clergy's having to subscribe to the confines of the state's definition of what neglect is. He said it is a difficult situation. He said "none of us sitting here" wants children to be neglected. He related that his wife, as a teacher, sees many children with different ranges of parental care. He opined that it would be a good thing if people had to pass a test to become parents, although he admitted society can't do that. He said [the committee] obviously has to consider policy for the whole state that allows some flexibility. REPRESENTATIVE HOLM told the committee that he grew up on a homestead with nothing. He said people today in Anchorage or Fairbanks could say that his parents abused him because he didn't have a lot of things. He said he was not abused; he didn't know any better. He said there are no definitive terms for what neglect really is and that he doesn't want to make crooks out of the clergy. Number 0727 MR. BRINKMAN, regarding the other eight categories [required to report abuse], noted that paid employees of crisis intervention programs, for example, do not have licenses. Furthermore, he noted that although childcare providers do have licenses, they probably have a lot less training than clergy members have. MR. BRINKMAN explained, "All this simply does is say, ... when you have a ... reasonable suspicion that this child may not be getting fed, may not be getting medical care, ... may be suffering from pneumonia because the parents used the monies to go out to play bingo, to drink, or whatever, you report." He said DFYS then looks at the report, but may do nothing because it might not agree with the standard of the person reporting. He said, "This just gets an early intervention, an early look the majority of the time, without removing the children from the home." In fact, he stated, [the reporting] sometimes helps in putting in services such as fuel oil assistance or food stamps. MR. BRINKMAN said, "So, from the division's standpoint and the department's standpoint, neglect can end up in as serious a situation as sexual abuse." He added, "And if we are attempting to provide for the safety of the child, we are simply asking that the same statutory matters apply to the clergy as to the other eight ... categories." Number 0930 REPRESENTATIVE HOLM suggested to Mr. Brinkman "It's different than saying you're 'simply' just reporting. You're simply having a misdemeanor if you don't report." He said he thinks the situation is different; that, in essence, is where his problem [with the issue] lies. MR. BRINKMAN concurred. He said, "We have put that, as a society, on school aides, daycare providers, policemen, domestic violence folks, nurses." He agreed that it is a policy call. REPRESENTATIVE HOLM opined that all who work those [jobs Mr. Brinkman listed] are paid to do what they do. MR. BRINKMAN responded that some aren't paid, but work voluntarily. REPRESENTATIVE HOLM replied, "Most are." He said he and Mr. Brinkman could "go round and round with this" without changing each other's minds, and stated his appreciation. MR. BRINKMAN asked that the committee consider the department's position with regard to this matter. CHAIR WEYHRAUCH said the questions being asked are an indication of the committee's concern for [the issue]. Number 1017 REPRESENTATIVE GRUENBERG stated, "I don't believe, in this area of the law, it's a community standard. I think it's a statewide standard." He suggested that these issues generally arise in CINA cases and are something the judge interprets as a statutory standard. MR. BRINKMAN responded that there is some community standard put into place. He explained, "Neglect may be different in a village with the ability to get medical care from a physician to address a problem, as opposed to a health aide." REPRESENTATIVE GRUENBERG said, "But it's not like the statute for medical malpractice or something like that." MR. BRINKMAN said no. REPRESENTATIVE GRUENBERG said he sees potential for at least four amendments. CHAIR WEYHRAUCH stated his intention to ask for the next committee of referral to be switched from the House Health, Education and Social Services Standing Committee to the House Judiciary Standing Committee so that the latter can address the legal issues. Number 1156 REPRESENTATIVE GRUENBERG offered Amendment 1: On page 3, line 2 [of Version I], between "rabbi" and "practitioner", delete "Christian Science" and add "religious healing". REPRESENTATIVE LYNN said he would have no problem with that. CHAIR WEYHRAUCH announced that there being no objection, Amendment 1 was adopted. Number 1285 REPRESENTATIVE GRUENBERG offered Conceptual Amendment 2, as follows: On page 2, line 18, in between "intended" and "to", add "by the penitent" or whatever the correct term would be. REPRESENTATIVE GRUENBERG explained that he wanted to clarify that ["communication intended to be in confidence"] does not mean that the clergy "intended". In response to a request for further clarification, he mentioned the evidentiary rule and said the privilege belongs to the penitent, not to the clergy. Number 1330 REPRESENTATIVE LYNN asked Mr. Wagoner to address the proposed amendment. MR. WAGONER said that without doing research, he doesn't think the privilege in the Rules of Evidence applies to the penitent. He added, "I think that may also apply to the clergy member, also." REPRESENTATIVE GRUENBERG said the commentary, subsection (c), "Who May Claim the Privilege" from the [Rules of Evidence] makes clear that the privilege belongs to the communicating person. He suggested that "communicating person" could be used, rather than "penitent". He continued: However, a prima facie authority on the part of the clergyman to claim the privilege on behalf of the person is recognized. The discipline of the particular church and the discreetness of the clergyman are believed to constitute sufficient safeguards for the absent communicating person. REPRESENTATIVE GRUENBERG said he wants it clear that "we" are tracking the evidence rule in this respect. He said he would change the amendment from "penitent" to "communicating person". Number 1458 MR. BLOCK said if any changes are to be made, the one suggested by Representative Gruenberg is the right one because "by the communicating person" could include both the victim and the wrongdoer. He said it is important for both to be encouraged to communicate with the clergy. CHAIR WEYHRAUCH clarified that Conceptual Amendment 2, page 2, lines 17-18, would read: "a communication intended by the communicating person to be in confidence". REPRESENTATIVE LYNN said he had no objection. Number 1512 REPRESENTATIVE BERKOWITZ suggested the following: Just to be clear on this, then it would seem to me, ... "a communication by a communicating person to be held in confidence to a clergy member". And then I think you can have a period after "the clergy member", and the subsequent portion of that paragraph is not necessary. MR. WAGONER stated the preference of keeping the additional clause in the language because "sacramental confession" is extremely important to [the Roman Catholic] Church. REPRESENTATIVE BERKOWITZ told Mr. Wagoner that "sacramental confession" may have a particular application for [the Roman Catholic] Church, but he doesn't think it's the state's business to determine what a sacramental confession is. He opined that it is particularly critical, from the church's perspective, to determine on its own what a sacramental confession is. MR. WAGONER responded: As long as the intent of this committee in deleting that language is that the church's sacramental confession is an exception to the reporting, because if you take the language out and you don't say anything about that, then the court could look into the legislative history, and would say, "Oh, they took it out." That's my concern. Number 1612 REPRESENTATIVE BERKOWITZ said he thinks the evidence would support his understanding that a sacramental confession the Catholic Church is intended to be held in confidence. In response to a question from Mr. Wagoner, he added, "Even without this language." He continued as follows: But I just don't think that the church ever wants to be in the position of going into a court and trying to prove that, a) it is a sacramental confession, and b) that it should be held in confidence. That's not something, from the church's perspective, I think you'd ever want to have happen. MR. WAGONER commented that he doesn't think his church would ever have a problem if it had to go to court and define what its sacramental confession is. Number 1649 REPRESENTATIVE GRUENBERG restated Conceptual Amendment 2, page 2, beginning on line 17, as follows: In this subsection, "penitential communication" means a communication to a member of the clergy intended by the communicating person to be in confidence to the clergy member. He added, "And we strike the remainder of that paragraph." Number 1826 MR. BLOCK said, since the definition of "clergy" has been expanded, it would cover most situations; however, the value of including the language [on page 2, lines 19-23] does add scope for those clergy who are part of a religious denomination where a penitential communication or sacramental confession isn't part of its rites. He indicated the language makes it clear that even though some churches don't have those rites, they are still protected. In response to a question from Representative Gruenberg, he clarified that the aforementioned amendment to the language [on lines 17-18] defines "penitential communication" in a limited way, which technically is probably adequate; however, he did appreciate the inclusion of the language [on lines 19-23] "because it does then, specifically, include in its scope, our situation." Number 1952 REPRESENTATIVE GRUENBERG noted that in Title 1 of the general statutes the word "including" is defined to mean "including but not limited to"; therefore, he concurred with Mr. Block. CHAIR WEYHRAUCH suggested the language, per Mr. Block's and Representative Gruenberg's discussion, should be as follows [on page 2, lines 17-23]: In this subsection, "penitential communication" means a communication to a member of the clergy intended by the communicating person to be in confidence to the clergy member who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline, tenets, customs, or practices of the church, denomination, or organization, has a duty to keep those communications secret. REPRESENTATIVE BERKOWITZ [and an unidentified committee member] objected. He said the language needs to be broader and explained: When we put the ... disciplines, tenets, customs, or practices of any church denomination or organization before a trier of fact, that's an encroachment on freedom of religion, and I am loath to go there. I think the salient feature of what we're trying to do in this bill is require reporting. We're not putting the religion itself on trial. It's a different thing to put the belief of the clergy member and the belief of the communicating individual on trial about the confidence. But when you put the tenets, customs, and principles in front of a jury, that's something altogether different, and I think we ought not go there. REPRESENTATIVE GRUENBERG said, "I don't want to limit it to those people; I want to say they are included along with other people, as well." He offered his estimation that the foregoing is the committee's intent here. REPRESENTATIVE GRUENBERG suggested a possible conceptual amendment on line 21: "and including communication to clergy people who, under the discipline, et cetera, have a duty to keep the communication secret." He added, "So, it would be including language that'd be exemplary, but it wouldn't be limited to those people." He asked how that would be. Number 2085 REPRESENTATIVE BERKOWITZ responded: You're adding elements of proof here, in the "including" section. And this might be tedious for people who are paying attention who don't actually have to prove things in court, but I think it's a very critical distinction. You're changing the focus ... of what we're trying to do here. The focus should be very narrow. We are trying to focus on penitential communication being the ... communication that's held in confidence. When we bring in the tenets and principles and customs and practices of a religious entity, that's something separate. And I don't think that those customs and practices should ever, ever come before a court or a trier of fact. Number 2134 CHAIR WEYHRAUCH reiterated that the people testifying as representatives of churches haven't said they have a problem with the language. Regarding the broader context and separation of church and state, he noted that the committee is currently dealing with "church" in the bill, so it can't be ignored. He said he appreciates [Representative Berkowitz's] concern, but suggested the issue may be one for the House Judiciary Standing Committee to address. CHAIR WEYHRAUCH announced that he would like to act on Representative Gruenberg's specific amendment, "leaving that language in there," to accommodate the concerns expressed by Mr. Wagoner and Mr. Block. With regard to the philosophical notion of the discipline, tenet, custom, and practice, he suggested that needs to be worked on. REPRESENTATIVE GRUENBERG said he would commit to work on this in the House Judiciary Standing Committee with the sponsor and Representative Berkowitz. CHAIR WEYHRAUCH asked whether there was any objection to [Conceptual Amendment 2, as amended], as previously read. He clarified that it would be: "for communication to a member of the clergy intended by the communicating person to be in confidence to the clergy member". REPRESENTATIVE LYNN added, "Comma, 'including'." CHAIR WEYHRAUCH said the [other] language would stay the same. [No objection was stated, and Conceptual Amendment 2, as amended, was treated as adopted.] Number 2120 REPRESENTATIVE BERKOWITZ moved to report CSHB 92, Version 23- LS0257\I, Lauterbach, 3/12/03, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 92(STA) was reported from the House State Affairs Standing Committee.
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