Tag: confidentiality

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member support mental health

Coronavirus and the Clergy-Penitent Privilege: Guidance for Rabbis

Jean-Marc Favreau and Michael Gan of Peer, Gan & Gisler, LLP share guidance around confidentiality between rabbis and community members. While this guidance is intended to raise awareness about issues related to maintaining confidentiality between rabbis and those they minister to, it is not intended as legal advice, nor should it substitute for your own due diligence in researching these issues and options or obtaining legal advice that could address your specific circumstances. If you have further questions, feel free to contact the CCAR or Jean-Marc Favreau or Michael Gan at Peer, Gan, & Gisler LLP.



Given the current COVID-19 pandemic and its impact on how we all are communicating and doing our jobs, many rabbis are utilizing different forms of technology to communicate with their congregants as well as to conduct and broadcast services, sermons, and other events. These unique circumstances offer a good opportunity to review and offer some guidance on some of the fundamental principles surrounding the Clergy-Penitent Privilege and how it is impacted when communications do not take place in person.

Privileged Communications Generally

  • Generally, communications between a member of the clergy and an individual who comes to them for counseling, spiritual guidance, or other reasons that would reasonably be considered private are privileged under state laws and court evidentiary rules. In the simplest terms, with very limited exceptions, a rabbi cannot be forced to disclose such communications.
  • It is essential to understand the particular confidentiality laws of your state, as there could be some differences in defining who holds the privilege, who is entitled to its protections, what types of communications are confidential, and what types of communications must be reported to authorities.
  • Beyond legal rights and obligations regarding confidentiality, rabbis also have an ethical responsibility to keep the types of communications described above private and secure.
  • Implicit in these legal privileges and ethical obligations is the requirement that the rabbi take reasonable steps to prevent the disclosure of such communications. Leaving a notebook containing personal information about a congregant out in a public space where it could be read by others is as much an ethical violation as letting private information about a congregant slip out during a conversation with another individual.

The Effect of Technology on the Privilege

  • Significantly, the privilege (and your ethical obligations) attach equally to in-person meetings as they do to communications that take place over the phone, videoconferencing (e.g. Skype, Zoom, Facetime), or via other communication platforms.
  • The important distinction between in-person and phone/video communications lies in how and whether the communications are kept secure. Whenever technology is introduced, the rabbi should exercise some due diligence to ensure that the software/tools used have security features (e.g. passwords, encryption technology like VPN, etc.). The same goes for the servers and internet connections used.
  • Should a rabbi fail to use due diligence to afford some security to their communications with individuals who come to them for counseling, spiritual guidance, or the like, they could be subject to some civil legal liability should that information be exposed.

Suggested Guidelines

  • When using technology to meet with congregants/others you may want to ask yourself:
  • Are we going to be discussing issues that are likely to be privileged?

A discussion about a congregant’s marital problems is a lot different and may require more security measures than a discussion about what props are needed for the Purim shpiel. 

  • What technologies are out there that would allow me to communicate best with individuals? (See below)
  • Does the individual feel comfortable with the technology?

Individuals may feel more or less comfortable with a video option versus just talking over the phone.

  • What are the security features and privacy provisions of the technology you are using?

You should familiarize yourself with the terms and conditions of the technology you are using to find out, among other things:

                        What type of security is utilized, if any?

                        Is the information recorded on a server somewhere?

                        Who owns the information that is broadcast and/or stored?

Have I used a strong password to protect my account and network? Did my congregant take the same steps?

  • Alert the individual that conversing over these technologies may not offer the concrete privacy protections that an in-person meeting would have, but that you will do your best to keep the information privileged and safe.
  • Remind the individual to be in a private setting so that their side of the conversation will not be overheard (which would run the risk of undermining the privilege).
  • Install a Virtual Privacy Network (“VPN”) on any devices you use to communicate with congregants over the internet. Many VPN services exist at little or no cost, and this article will help you find a good one.
  • Ensure your videoconferencing or other communication service has basic security protections, including “end to end encryption”. Even most free services have this, but their paid plans may afford extra security (any additional costs should be covered by your congregation). For example:
  • Services such as Zoom offer plans beyond the free version that provide extra protections. This includes a HIPPA-compliant plan that health care providers use with patients. This might be overkill, but it would provide the greatest protections.
    • Services such as GoToMeeting and Cisco WebEx have built in “end-to-end encryption” and customizable security tools
  • Many other services also tout secure communications including popular options such as Skype, Google Hangout and FaceTime.
  • Whatever software you use, be sure you read the documentation on the website and check whether the encryption or other features are the default or have to be enabled.
  • Make sure you keep your software/technology up to date, as these companies often issue security patches.

Most of us agree that nothing can replace face-to-face communication when ministering to individuals, but in light of the current social-distancing recommendations, alternate technologies can serve as a good – temporary – substitute. As long as you fully inform yourself about the security features of the software and networks you are using and about how to enable those features, you are doing your due diligence to protect yourself and those you serve.

Categories
Ethics

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.

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