Clergy Privilege v Mandatory Reporting

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

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.

Church Graveyards

Most younger churches and non-ecumenical churches do not have graveyards.  For those churches that do have them, generally no one ever contemplated that the church owner would no longer be in existence to care for them or that the church property would be sold.

In Church of the Holy Spirt of Maryland v Heinrich, Slip Op. (Mass. App. 2022), the church was formed in 1961 and in 1967 decided it needed its own graveyard restricted to cremated remains.  In 2015, the church dwindled in size such that the denomination decided to wind down its activities and sell the property.  The property was sold to a church that doctrinally did not permit cremation.  Therefore, the new owner wanted the graveyard moved elsewhere.  The contracts and organizational documents of the graveyard did not contemplate closure of the church or sale of the land.  Those documents did contemplate that the church could unilaterally alter the regulations governing the graveyard.  The trial court held that the revised regulations of the graveyard which allowed transplantation of the graveyard were enforceable.  The appellate court reversed the trial court holding that the contemplated change in regulations was not contemplated when the burial contracts were purchased.  The religious beliefs of the new owner did not override the burial plot purchase contracts because the purchaser bought the property with full knowledge of the presence of the graveyard.  The appellate court would not speculate about any religious beliefs the burial contract purchasers might have had.  The desire to be buried in hallowed church property might have driven the original purchase of burial plots, or not, but might no longer be fulfilled because the purchase contracts did not expressly bind the church to own the property in perpetuity or remain in existence.  Because the ruling of the appellate court left unanswered questions about what would happen to the graveyard in the absence of the church that founded it, the case was remanded.

While the legal tangle of church graveyards may seem remote to most readers, denominations faced with declining local church membership the problem may arise more often.  Churches buying older church properties need to investigate any church graveyard and carefully determine if a permanent trust fund exists to care for the graveyard.  Further, if inexorable inflation forces additional funds to be deposited in a trust to keep it solvent, or if its investments are merely badly managed, then the buyer needs to know upon whom the burden falls if the trust fails.  Churches with an eternal view cannot afford to short term in their financial thinking.


It seemed to the author that financial claims, called various things in various jurisdictions, such as embezzlement, conversion, theft, and breach of fiduciary duty, would not likely be shielded by the Ecclesiastical Abstention Doctrine.  Such claims can almost always be decided by Neutral Principles of Law.  A church, like any other recognized entity in American law, owns its own property and accounts.  People, regardless of their title or general authorization as an account signatory, must respect that the church property is owned by the church.  Use of that property, or cash, must be authorized by the governing body of the church and documented.  Sometimes, with the passage of years, bad practices creep in, but that is rarely the subject of a claim.

In the interlocutory appeal of In Re Munger Avenue Baptist Church, Davis, and Ward, Opinion (Tex. Civ. App. 5th, 2022), the claims against the pastor included “breach of fiduciary duty, conversion, fraud by nondisclosure, theft of property, conspiracy, and certain declaratory relief.”  The Defendants moved for dismissal of the case alleging the trial court had no jurisdiction under the Ecclesiastical Abstention Doctrine.  The trial court refused.  The appeal followed and the Texas appellate court denied the writ.  The appellate court made no ruling on whether any of the allegations were true.  But, the appellate court affirmed the trial court’s refusal to dismiss the case based on a lack of jurisdiction because of the Ecclesiastical Abstention Doctrine.  The appellate court’s opinion relied on procedural grounds and was not a finding of jurisdiction.

As a result, the author will continue to believe financial claims, called various things in various jurisdictions, such as embezzlement, conversion, theft, and breach of fiduciary duty, would not likely be shielded by the Ecclesiastical Abstention Doctrine.  Wrongdoers, embezzlers, and thieves should likewise believe that a church has a civil remedy.  Criminal prosecution is not the subject of this report.  Very often churches will not call the police, or if the church does call the police, they get a cool response.  In order to press for an investigation by law enforcement, the church (and most businesses) need to approach the police on an appointment basis, not just a phone call, and to that appointment take the report of a CPA, an affidavit of a church officer or complainant, and financial documents from which the defalcation is apparent.


The defamation claims that arise between churches or their clergy do not so far include claims by which the allegedly wronged party claimed the wrong was that their beliefs were mischaracterized, or even described pejoratively.  Usually, defamation is alleged when the allegedly wronged party claims they were falsely accused of heinous misconduct, not merely beliefs the accuser held to be unpalatable.  While it may seem obvious that the First Amendment would never permit a defamation claim based on the allegation that beliefs were mischaracterized, or even described pejoratively, it seems someone had to try it.

In United Federation of Churches, LLC v Johnson, Order Denying Motion for Reconsideration (WD Wash. 2022), the Plaintiff, also known as the “Satanic Temple,” alleged the Defendants violated the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. §1125.  The Court opinion does not recite the precise manner in which the Defendants were alleged to have done this.  But, the Plaintiff alleged their Facebook page had been compromised in some fashion.  The Court rejected the cybersquatting claim because “” is not a domain name protected by the statute.  The statute prohibits creation of identical or confusing domain names.  The Plaintiff alleged the Defendants defamed them on other Facebook pages accusing Plaintiff of “ableism, misogyny, racism, fascism, and transphobia.”  The federal trial court dismissed the defamation claim because “resolving the claim would require the court to violate the First Amendment by “delving into doctrinal matters,” contrary to the Ecclesiastical Abstention Doctrine, in order to “define the beliefs held by” Plaintiff to determine if the allegations were untrue.

Churches with Facebook or other social media platform presences, or even pedestrian websites, should expect that critical review, even vile critical review, of their beliefs will generally be unassailable.  Only when such castigation violates the Terms of Service of a platform will any recourse be available.  Churches should assume that even complaints about violations of Terms of Service will likely be ineffective.  Internet Trolls may be unavoidable but the sure strategy is simply to out live them.