Historically, it was not uncommon for church sponsored or operated orphanages and children’s homes to fill the gap between state facilities and the need. It was also not uncommon for these parachurch organizations to accept state funding for state wards when the state had no available facilities in the locale.
In Doe v Archdiocese of St. Louis and Anderson, Memorandum and Order (ED Mo. 2022), the federal trial court dismissed the federal law claims with prejudice and dismissed the state law claims without prejudice. (This is a standard federal trial court practice to allow state law claims to be pursued in state trial courts if the Plaintiff so desires, but it ends the federal law claims unless continued in an appeal.) The Plaintiff alleged that he was sexually abused forty years ago at a children’s home operated by the Defendants in violation of a federal constitutional right. Such a claim is brought to federal court under federal statutory authority: 42 USC §1983. The Plaintiff after extensive discovery was never able to prove the Defendants as operators of the children’s home were “state actors” rather than private actors. The Plaintiff argued that the children’s home accepted state reimbursement for holding wards for which the state had no other placement available in the locale. According to the Plaintiff, taking the money converted the parachurch organization to a “state actor.” The federal court held merely accepting funds from any level of government does not convert the private entity to a “state actor.” The court cited Rendell-Baker v Kohn, 457 U. 830 (1982) in which the private school derived nearly all of its funding from state funds but was still held not to be a “state actor.”
In the reported case, there was no written contract between the parachurch organization and the state. The payment of the funds indicated there was at least some form of oral contract. A formal contract may have contained terms that altered the role of the parachurch organization. The federal civil rights claims possible through §1983 might have been tempting to the plaintiff as an effort to escape Missouri’s two year statute of limitations or even the more specific ten year statute that applied to sexual abuse.
Generally, in order for the separation clause of the First Amendment to have any real meaning, the Ecclesiastical Abstention Doctrine has to be a jurisdictional barrier to litigation and not just liability. The real horror of litigation is the cost of litigation; liability may make the headlines, but the cost of litigation is a burden that might even be greater than the value of winning.
In Doe v Roman Catholic Bishop of Springfield, Slip Op. (Mass. 2022), the Plaintiff alleged being a victim of sexual misconduct perpetrated by certain church leaders in the 1960s but only being able to remember it forty years later when the stories of other victims appeared in the news media. The Plaintiff sought to report the assault in 2014. A church sponsored investigation at first treated the Plaintiff’s complaint as not credible. The church did not report the matter to law enforcement until 2018. The news media in 2018 reported that the church review did not confirm the Plaintiff’s allegation. A second review commissioned by the church later lifted it to “compelling and credible.” The church in 2020 apologized both for the alleged rape of Plaintiff and the “chronic mishandling” of the Plaintiff’s allegation since 2014. The Massachusetts appellate court held the common law charitable immunity doctrine, abolished by the state legislature in 1971, nevertheless applied to the allegations of sexual assault in the 1960s. The charitable immunity doctrine was founded on the premise that funds received by a church or charity did so as a public trust and had the duty to assure the funds were spent on the mission, and not on cost of litigation or liability. Thus, those counts were immediately dismissed. The mishandling of the complaint of the Plaintiff in 2014 remained actionable because the conduct complained of occurred after the charitable immunity doctrine was abolished. The Ecclesiastical Abstention Doctrine was held not to be a jurisdictional bar to litigation, even if it was or might be a bar to liability.
Treating the Ecclesiastical Abstention Doctrine like an affirmative defense, rather than a bar to jurisdiction as in the case reported, means while liability may someday be limited or eliminated, the cost of litigation will continue until there is a final decision by summary judgment or trial. Discovery could be limited in such cases to jurisdictional facts which might blunt the impact. While it would seem that the Ecclesiastical Abstention Doctrine’s applicability, because it is an effort by courts to obey the separation clause of the First Amendment, should be handled at the outset to tame the hungry lion of the cost of litigation, some courts will not reach that conclusion in the absence of specific legislative intervention.
While we have examined publication of reports of sexual misconduct by clergy as a basis for a defamation claim, and it generally will not support a defamation claim, it is rare to see a claim that the victims were outed by the local church. The difference between defamation as a claim and invasion of privacy as a claim alone might account for different treatment of such claims. The uncertainty regarding invasion of privacy claims is whether the church at the time of disclosure had a duty to safeguard the identity of victims.
In John Doe v Woodland Presbyterian, Slip Op. (Tenn. App. 2022), the denomination was dismissed by the trial court because the denomination as a corporate entity had no minimum contacts with Tennessee and therefore, personal jurisdiction could not be exercised by the court over the denomination. A theory of agency or corporate alter ego (aka respondeat superior) did not save the claim. But, the rest of the claim remained viable at this stage (the motion to dismiss stage) against the local church and archdiocese. One of the claims preserved was that the local church revealed the identity of the victims to the media. The appellate court held there was a duty in Tennessee of reasonable care to safeguard the identifies of the alleged victims.
“Invasion of privacy” is not widely recognized as an independent tort arising from a duty. Indeed, while identities of certain classes of sexual misconduct victims are protected in various states, there is a lack of universality. Because the legal clarity of this type of protection is uncertain in some states, the better practice is to avoid the issue at all by non-disclosure other than as required by Mandatory Child Abuse Reporting statutes.
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.