Confessional privilege is not particularly in doubt in most states except at the outer boundaries. Typically, the boundaries waiver among the states depending on the role of the person claiming the confessional privilege. Priests, ministers, rabbis, pastors and other clergy are usually identifiable by licensure, ordination, or church governance documents that describe their duties as ecclesiastical. But, when non-clergy exercise some of the duties ordinarily thought of as ecclesiastical, whether the confessional privilege extends so far is unclear in most states and in others clearly does not apply.
In Caekaert v Watchtower Bible and Tract Society, et al, Order Motion to Compel Hardin Congregation’s Subpoena, (D. Mont., Billings Div., 2021) the federal trial court had before it a motion to compel various entities including the local church to comply with a Subpoena. The Plaintiff’s claim was that she was subjected to serial child sexual abuse by two members of the local church. The Plaintiff complained to church leaders, but because she could not produce a second witness, her complaint could not proceed. Meanwhile, the sexual abuse allegedly continued. In the lawsuit that followed, Plaintiff sought copies of reports by the local church Elders both internally and to the denomination. The Defendants objected to the Subpoena arguing that members were promised that confession of sin to Elders would remain confidential. Because Montana was a mandatory reporting statue state, the tension with the confessional privilege was inevitable. The trial court enforced the subpoena by requiring that the documents be submitted for review by the Court for a determination of whether the confessional privilege applied to any one of or all of the documents. The trial court held merely labeling the documents sought as “confidential” did not make them cloaked by the confessional privilege. Further, the court would not extend the confessional privilege to “nonclerical church member statements.”
Ecumenical churches will face these questions regarding the scope of the confessional privilege that may be asserted by the diaconate. Evangelical churches also often have “Elders,” and may describe their office or duties in governance documents sufficiently to trigger a confessional privilege. Questions also will arise when recognized clergy counsels with a member and present also is a member of the diaconate or an “Elder.” Unless the statutes defining confessional privilege or mandatory reporting are amended to avoid conflicting duties, these questions will persist in arising.
Most local churches are separately incorporated. Each denomination exercises a unique level of control and supervision of their local churches that ranges from virtually none to substantial oversight. In those denominations that exercise substantial oversight, liability for the actions of the local church or parachurch organization might exist if the denomination was deliberately indifferent to those actions.
In Buettner-Haratsoe v Baltimore Lutheran High School Association, et al, Memorandum Opinion (D. Maryland, 2021) the federal trial court denied motions to dismiss allegations the church school and the denominational supervisory body failed or refused to control sexual harassment and abuse of minor female students by other students on campus as well as off. Social media, of course, was a major culprit but sexual assault and battery was alleged as well. The culture of the high school was characterized by the Plaintiffs as “hyper-sexualized.” One male student was prosecuted and pled out. The denomination sent a crisis management team to the school to try to address the allegations. The Plaintiffs alleged the crisis management team’s actual agenda was to squelch faculty complaints and the Plaintiffs’ allegations rather than take any action to remediate the situation. The trial court held “deliberate indifference,” an element of federal statutory discrimination claims, in this instance Title IX, sufficiently alleged against both the local church school and the denomination. The trial court held that none of the allegations required inquiry into any “ecclesiastical controversy.” The case will proceed through discovery and possibly future motions for summary judgment or trial.
If the allegations had sufficient credibility, due to numerosity if nothing else, to warrant dispatch of a special team to conduct onsite situational evaluations, the denomination should have dispatched qualified investigators, too. Qualified investigators should have included, for example, retired or former law enforcement officers and attorneys qualified to conduct such investigations. Each complaining student should have been interviewed on the record. Each faculty member that claimed to observe anything or to be the recipient of a complaint from one of the female students should have been interviewed on the record. Some of the complaints might have triggered state mandatory child abuse reporting statutes. Reasonable actions should have been designed based on the investigations and may have included student disciplinary actions as well as employee disciplinary actions. Local churches and denominational supervisory bodies that fail to make a record of duly diligent inquiry risk more than is risked by making a wrong decision about what to do about it.
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.
Once completely shrouded behind church tradition if not actual walls, the results of church investigations into their own clergy are now routinely posted on the internet. Some of the investigations must be understood in the context of Canon Law and not just the language used in the disclosures on the internet.
The case of In Re Diocese of Lubbock, Slip Op. (Tex. 2021) reviewed the posting of lists of clergy the church alleged from its own internal investigation were credibly accused of sexual abuse with a “minor.” However, in the denomination in question, Canon Law held the word “minor” included vulnerable adults, too. The Plaintiff alleged he was listed even though the sexual misconduct of which he was accused did not involve a person underage but rather an allegedly “vulnerable adult,” in this instance mentally ill or incapacitated. The Plaintiff complained he was defamed by the failure to make this distinction clear. Further, the Plaintiff claimed posting the list on the internet was a publication that took the alleged defamation outside of the protection of the Ecclesiastical Abstention Doctrine of the First Amendment. The Texas Supreme Court explicitly held that any church investigation into clergy was inherently and necessarily ecclesiastical and that publication on the internet did not obviate the doctrine. The Court held that Canon Law terminology, the conduct and publication of the investigation under commands from the church hierarchy, and plaintiff’s status as clergy made the matter inextricable from ecclesiastical inquires that could not be made by a Court. The trial court was ordered to dismiss the case.
The Court, and no court has done so, did not require that due process be provided to the accused including the right to be heard by church leadership. Likewise, the quality of the investigation, or proof thereof, was not required. The larger denominations have employed retired law enforcement officers and experienced lawyers to conduct and review the internal investigations. The high-risk action was publishing the results. While no churches would accept that risk in prior generations, churches in this generation believe they simply have no choice but to achieve transparency.