CONFESSIONAL PRIVILEGE VERSUS MANDATORY REPORTING

There is in some states a conflict between confessional privilege and statutes that require clergy to report suspected child abuse.  The obvious conflict is between the religious duty of confessional secrecy and the legal duty to report child abuse.  In some states failure to report suspected child abuse is a crime.  In some states, the confessional privilege is also preserved by statute and the question presented by those statutes is who may claim the confessional privilege?  Is the confessional privilege capable of being invoked only by “recognized” clergy?

In Ivy Hill Congregation v Pennsylvania, Slip Op. (Penn. 2021), the church sought a declaratory judgment that “Elders” of the church could invoke confessional privilege.  Clergy were specifically named as mandatory reporters in the child abuse reporting statute.  The church plaintiff did not have “clergy.”  Rather, male members that were deemed qualified were nominated in the local church but had to be confirmed by an “Elder” responsible for all of the churches in a designated area to be Elders.  The Supreme Court of Pennsylvania overruled the state’s various objections to the declaratory judgment action.  However, the Court refused to decide the central question of whether “Elders” were “clergy” as anticipated by the mandatory reporting statute or the confessional privilege.  The Court sent the case back to the trial court for development of a factual record that might answer whether “Elders” qualified under either.

Many independent congregations with no denominational hierarchy may face similar questions.  In such churches, the ordination of the clergyman comes with the first paycheck and ends with the last.  Some have formal religious training and many do not. Many confessional privilege statutes exclude “lay” or “self-appointed” clergy.  The church governing documents may be the only source of authority describing the role and authority of the pastor or minister sufficiently to trigger the confessional privilege or the mandatory reporting statute, or both.  Independent churches should engage counsel to consider the governing documents in the light of both types of statutes in those states that have them.

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