Confidentiality in the Ethics Process

May 10, 2019 by

Confidentiality in the Ethics Process

What is confidentiality in the CCAR ethics process, and how does it differ from other settings, such as pastoral counseling? Recently, several people—rabbis, participants in ethics cases, members of congregations—have asked questions about the nature of confidentiality in the CCAR ethics process. In particular, several asked whether the names of complainants, victims or witnesses are ever made public. The short answer is no: CCAR does not disclose publicly the names of complainants, victims or witnesses.

Confidentiality is often assumed to be a blanket non-disclosure.  But in different settings, confidentiality means different things.  For example, in a pastoral counseling setting, confidentiality goes to the heart of the congregant’s expectation of privacy between the congregant and the rabbi (or minister).  In fact, that privacy even is recognized in the law as a “priest-penitent privilege” that prevents disclosure of those conversations except in special circumstances.   

The goal of the CCAR process is to help rabbis and communities achieve their aspirational values that reflect the very best of the rabbinate and the community, including sacred and safe communities with rabbis who live up to their highest moral values. Confidentiality in the ethics process is designed to achieve these goals and allow an ethics committee to do its work in a way that is fair, protective, and safe. (As I have written about in other settings, the CCAR ethics process is an ecclesiastical process, not analogous to a legal trial court.)

The CCAR ethics process is one in which the CCAR determines if a rabbi has violated the Code of Ethics.  Someone (an individual or a congregation) begins the process by filing a complaint with the CCAR against a rabbi. Then, the rabbi responds to the complaint, and the process moves forward.  At this point, the process is confidential out of respect for the privacy and reputation of everyone connected to it—parties, witnesses, victims, and potential victims. But it is not secret. 

There’s an important difference.  “Secret” means that nothing is shared and everything is out of the public eye. By contrast, a “confidential” process is one in which information gathered during the process is not broadly disseminated except to others involved in the process so that the Ethics Committee can do its work to determine if a rabbi violated the Code of Ethics. 

To achieve our goals, the CCAR does not publicly identify victims, witnesses or complainants at any stage in the process.  We continue to respect their request for privacy throughout the process and even after it is concluded.

However, adjudications of Code violations that lead to public censure, suspension or expulsion of a rabbi are not kept confidential. In fact, these actions are publicly disclosed on the CCAR website.  

The Code explicitly dictates what information must be disclosed and to whom.  To begin the process, “complaints must be written and include the names of all parties involved.”  (VI.B.1.) The complaint is shared with the rabbi.  Thus, the names of the parties—the complainant and the rabbi—are disclosed to one another and to the Ethics Committee from the outset of a complaint.

While the CCAR Ethics process is ongoing, we ask that everyone connected to it honor the confidentiality of the process.  Confidentiality better assures that the parties and witnesses will provide information and the victims feel they have a safe place to share their experiences.

Yet asking someone, such as a complainant or victim or rabbi, to respect the confidentiality of the process certainly does not mean that people, especially victims, should not talk with their immediate family or close friends about what they have experienced, and it does not prevent anyone from seeking spiritual, emotional, or professional support.  We know that can be of importance to a person’s health and healing.

When it comes to complainants, witnesses, and victims, we may also need to protect them from fear of retaliation or humiliation in some instances.  As written by one of the leaders in the field of clergy misconduct,  “shooting the messenger is a common response to the revelation of unethical conduct.” (Is Nothing Sacred, Marie Fortune) This concern is another reason why we do not disclose publicly the names of the complainants, victims or witnesses.

The CCAR process continues to evolve and improve over time with the input of many people, including those of the rabbis, complainants, and victims themselves.  We especially are proud that lay leaders have joined with rabbis in the ethics process:  on the Ethics Committee which receives complaints and adjudicates; on Fact Gathering Teams, which gather information from complainants, rabbis, and witnesses; on the Ethics Board of Appeals, which hears appeals from an adjudication; and on the Ethics Process Review Committee, which proposes changes to the Code of Ethics.

CCAR members aspire to exhibit the very best of the rabbinic tradition.  The Ethics Code and process reflect those aspirations.

Rabbi Steven A. Fox is the Chief Executive of the Central Conference of American Rabbis.

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