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.