CONFESSIONAL PRIVILEGE AND MANDATORY CHILD ABUSE REPORTING

A version of the table below was copied in these reports a couple of years ago. Below is the 2019 version. While confessional privilege may be listed as “denied” in two states and a territory, it remains to be seen whether there will be or ever has been a prosecution for violation by a bone fide clergyman from a denomination with established confessional confidentiality. States that do not have confessional privilege exceptions in the mandatory reporting statute generally omit clergy from the list of mandatory reports so whether there is any duty on clergy is unclear.

Table Confess
Source: Child Welfare Information Gateway (2019), US Dept. of Health and Human Services.

In Nunez v Watchtower Bible and Tract Society of New York, Inc., 2020 MT 3 (Mont. 2020), a trial court judgment upon a jury verdict for $4 million and punitive damages of $35 million were overturned. The Montana statute contained a confessional privilege, as set forth, too, in the table above. The Supreme Court of Montana extensively analyzed the record before it as to the confessional privilege recognized by the denomination. The denomination made it a violation of canon law to breach the confessional confidentiality. However, the denomination recognized a church officer with authority to take confessions, unlike some denominations, could violate canon law and report the confession but that punishment would be unlikely. Nevertheless, that the denomination left some discretion in the confidentiality decision did not make it the ineligible for the confessional privilege set forth in Montana’s statute. The court held it was prohibited from considering whether religious confessional conduct conformed to the standards of a particular religious group. Also, the court held that by the Establishment Clause the court was prohibited from comparing confidentiality practices between denominations to favor one over the other.

The tension between confessional confidentiality and mandatory reporting statutes remains. Clergy are simply at risk. There is no easy way out. In some denominations, confession is not meaningful without proof of repentance. However, the breadth of the proof of repentance, or the vow to be undertaken to cure the sin, are beyond the scope of this report.

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