General statements about child abuse mandatory reporting are not worth much because every state approaches the problem differently. However, the general statement that can be made is that in most states there is a mandatory child abuse reporting requirement that churches and their employees should take seriously. While prosecutions are few and scattered, this is a function of the resource limitations on prosecutors and the political viewpoints in vogue at the moment in the location. The complexity of these questions is easily reviewed, but not solved, by looking at a compendium of state laws. See, Mandatory Reporters of Child Abuse and Neglect, (68 pages) United States Children’s Bureau (current through 2019) at http://www.childwelfare.gov/pubpdfs/manda.pdf.
In Ivy Hill Congregation of Jehovah’s Witnesses v Department of Human Services, Slip Op. (Pa. Commw. Ct. 2022), the Pennsylvania intermediate appellate court affirmed the trial court’s dismissal of the case. The Plaintiff sought a declaration that its “elders” are “clergymen” and entitled to the statutory clergy privilege and not subject to the mandatory child abuse reporting statute. The Plaintiff also argued the statutory qualifications for clergy privileged communications were unconstitutional if “elders” are not “clergymen.” The appellate court affirmed dismissal of the Plaintiff’s case because the Defendant was an agency that might collect a report of child abuse but not the agency that would prosecute failure to report, and therefore not the proper party. Other law enforcement agencies would be empowered to prosecute but not the Defendant. A ruling in the case would not provide complete or any relief. The Court also held that application of statutory clergy privilege “requires a court or appropriate agency to review the communication at issue” to determine if a communication is privileged and therefore, confidential.
Clergy privilege to avoid mandatory reporting of child abuse should not be invoked without consulting counsel. Counsel should not assume an answer until the current status of the mandatory reporting statute, and any statutory or common law clergy privilege for that state are confirmed. During the last three decades churches that did not report have been vilified. Prosecutions for failing to report child abuse were not needed when disclosure occurred because of the backlash. That outcome should be assumed on the local small church level, too. Child abusers may not be able to pursue any remedy for violation of clergy privilege but as child victims have proven repeatedly, the reverse is not the case.
It took the Texas courts substantial effort to work through to find the edges between Texas tort law and the Ecclesiastical Abstention Doctrine. The legal culture of Texas, that there should be a remedy for every wrong and that everyone should have access to the Texas courts, is strongly engrained. Fitting the edges of that absolute to the edges of the Ecclesiastical Abstention Doctrine was difficult both legally and culturally. Other states have had similar angst.
In July 2021, we reported on the seemingly terminal disposition of the issue by the Texas Supreme Court in In Re Diocese of Lubbock (II), 624 SW3d 506 (Tex. 2021), cert. denied, 142 S. Ct. 434 (2021). The Texas Supreme Court invoked the Ecclesiastical Abstention Doctrine and ordered the case dismissed on jurisdictional grounds. Essentially, the rule that evolved was “[b]ecause courts are prohibited from risking judicial entanglement with ecclesiastical matters, if the substance and nature of the plaintiff’s claims are inextricably intertwined with matters of doctrine or church governance, then the case must be dismissed.” (quoting the case reported on in this article, at 11).
In Heras v Diocese of Corpus Christi, Slip Op. (Tex. App. 13th, Corpus Christi 2022), the dismissal on jurisdictional grounds of the Plaintiffs’ defamation tort action was held in abeyance on appeal until the Texas Supreme Court ruled as noted in July and summarized above. The appeal was reactivated and the trial court’s dismissal was affirmed. The appellate court began their analysis with a review of the holdings in Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S.Ct. 2049 (2020) and Hosanna-Tabor Evangelical Lutheran Church & Sch. v E.E.O.C., 565 U.S. 171 (2012). The appellate court held “[h]ere, appellants impermissibly seek to impose liability on appellees for compliance with an internal church instruction of openness and transparency.” Compliance with the “internal church instruction” by investigation and public disclosure was not within the jurisdiction of the Texas courts to address.
While it is abundantly clear that courts will not intervene in nearly all claims regarding employment of clergy, the question arises about whether the clergyman (or clergywoman) that loses employment with a secular employer because of the loss of clergy credentials. In that instance, is there a viable claim?
In Iwuchukwu v Archdiocese for the Military, Memorandum Opinion (D. DC, 2022), the Plaintiff was a clergyman but employed by a federal agency and terminated. The employment required the Plaintiff, serving as a chaplain, to have the credentials of clergy without which the employment was summarily terminated. The federal agency was not named as a Defendant. The denomination claimed it revoked the credentials based on an unresolved allegation of sexual misconduct at a prior employment a decade earlier. The Plaintiff submitted a polygraph examination report that seemed to confirm the Plaintiff’s denial of the allegation. Also, some years before this case, the Plaintiff filed a complaint against the federal agency with the Equal Employment Opportunity Commission (“EEOC”) alleging a hostile work environment. Plaintiff claimed revocation of his clergy credentials was in retaliation and had nothing to do with the clergy credentials. In effect, Plaintiff was arguing his claims were reviewable under Neutral Principles of Law. The federal trial court dismissed the case as barred by the Ecclesiastical Abstention Doctrine because religious organizations could unilaterally decide who would speak for them as clergy. The court also noted the federal employment discrimination statute exempted religious organization employers.
Because many clergymen and clergywomen work in alternative employments with parachurch organizations or even secular entities, the facts presented in the reported case may be less unique than might be expected. For example, many hospitals have chaplains. Clergy that are accused of sexual misconduct are not well served by relying on denominations or parachurch organizations to clear them. Innocent accused clergy have no choice but to immediately seek a judicial declaration of innocence if reputable counsel believes there is a reasonable chance for a favorable outcome, or expect the loss of their former career.
How long does a denomination or local church have to investigate sexual misconduct allegations against personnel? Most governing documents that address the question, and most are actually altogether silent or do not differentiate such allegations from other matters of discipline, do not set a time limit on investigations or discipline. Stated another way, must the duration of such an investigation be “reasonable?”
In Taylor v Evangelical Covenant Church, 2022 IL App (1st) 210524, Slip Op., the trial court’s decision to dismiss the case with prejudice was affirmed. The Plaintiff was suspended by the denomination from pastoral duties in 2017 pending investigation of a sexual misconduct claim alleged to have arisen in the 1970s. The defendant denomination licensed pastors and had the authority to suspend them. The defendant denomination investigated during 2017 – 2018 and reinstated Plaintiff’s licensure but did not reinstall him in another local church as pastor by the time suit was filed in 2020. In the interim the local church that previously employed Plaintiff hired a replacement. The Plaintiff alleged the denomination violated its governing documents by “keeping Plaintiff in a suspended status for an unreasonably lengthy period.” The appellate court determined that the substance of Plaintiff’s pled claims related to “internal matters of church governance and discipline” including the claim about undue or unjust delay. Therefore, the Ecclesiastical Abstention Doctrine precluded court review.
The governing documents need not set time limits on investigations, discipline, or any other matter of internal church governance. Indeed, it is probably better that they do not. The actual procedures the denomination used on the fifty year old sexual misconduct allegation were not set forth in the opinion. Nor was there any report of whether the investigation found the allegations credible. The reinstatement of the licensure of the Plaintiff seemed to indicate the allegations were not found credible. That the Plaintiff had not be reinstalled as a church pastor may or may not indicate anything other than supply and demand given the lack of specifics in the opinion.