Tag: mandatory reporting

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 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.

CONFESSIONAL PRIVILEGE AND MANDATORY CHILD ABUSE REPORTING

A version of the table below was copied in these reports a couple of years ago. Below is the 2019 version. While confessional privilege may be listed as “denied” in two states and a territory, it remains to be seen whether there will be or ever has been a prosecution for violation by a bone fide clergyman from a denomination with established confessional confidentiality. States that do not have confessional privilege exceptions in the mandatory reporting statute generally omit clergy from the list of mandatory reports so whether there is any duty on clergy is unclear.

Table Confess
Source: Child Welfare Information Gateway (2019), US Dept. of Health and Human Services.

In Nunez v Watchtower Bible and Tract Society of New York, Inc., 2020 MT 3 (Mont. 2020), a trial court judgment upon a jury verdict for $4 million and punitive damages of $35 million were overturned. The Montana statute contained a confessional privilege, as set forth, too, in the table above. The Supreme Court of Montana extensively analyzed the record before it as to the confessional privilege recognized by the denomination. The denomination made it a violation of canon law to breach the confessional confidentiality. However, the denomination recognized a church officer with authority to take confessions, unlike some denominations, could violate canon law and report the confession but that punishment would be unlikely. Nevertheless, that the denomination left some discretion in the confidentiality decision did not make it the ineligible for the confessional privilege set forth in Montana’s statute. The court held it was prohibited from considering whether religious confessional conduct conformed to the standards of a particular religious group. Also, the court held that by the Establishment Clause the court was prohibited from comparing confidentiality practices between denominations to favor one over the other.

The tension between confessional confidentiality and mandatory reporting statutes remains. Clergy are simply at risk. There is no easy way out. In some denominations, confession is not meaningful without proof of repentance. However, the breadth of the proof of repentance, or the vow to be undertaken to cure the sin, are beyond the scope of this report.