“In state legislation listing mandatory
reporters by profession, the trend is to
add clergy to that list.”
have clearly expressed the overriding importance of child protection.
Other states have passed legislation narrowing or removing the
privilege entirely where reports of child abuse are concerned. When
equal expression of both interests cannot exist at the same time, child
protection overrides because it is the compelling state interest.
In states where clergy privilege currently exists, the privilege is
often much narrower than ministry leaders believe. Clergy privilege
does not provide blanket protection over all information received
by a minister. Rather, many state legislatures have redefined clergy
privilege to significantly limit protected information. Others have
simply removed the privilege altogether, and this is the trend.
In coming years, this trend of prioritizing child protection will
continue, until clergy privilege does not exist when it conflicts with
child abuse reporting requirements.
Criminal prosecution for failure to report
Every state has mandatory reporting requirements for mandated
reporters, and failure to report a suspicion (or allegation) of abuse is
a crime. Many state legislatures have increased penalties for failure to
report, but the more noteworthy trend relates to enforcement.
After the Penn State scandal of 2011, law enforcement officials
have significantly increased prosecution of ministry leaders who
fail to report child sexual abuse. Our culture is angry and frustrated
with repeated accounts of ministry leaders having information that
remained unreported to law enforcement. As a direct result, other
children were harmed. One outgrowth of this cultural frustration is a
commitment on the part of law enforcement to hold ministry leaders
accountable for unreported information or allegations brought to their
attention. If media headlines are any indication, those being prosecuted
for failure to report are primarily employed by churches, camps, day care
centers and schools.
communication made to a clergy member in his or her professional
character, expanding the privilege into professional services such as
marriage, relationship or grief counseling.
The clash between child protection and clergy privilege is an
ongoing issue for state legislatures. Clearly, protecting children from
child sexual abuse is a compelling state interest — a governmental interest
so important it outweighs individual rights. As such, the importance
of protecting children outweighs many other rights that might conflict
with this compelling interest.
The protected nature of clergy communication has been recognized
for centuries, and a form of this privilege has been adopted by statute in
all 50 states. The clergy-communicant (priest-penitent) privilege traces
back to the Catholic Church’s Seal of Confession, entrenched in law
prior to the 1066 Norman Conquest. Though diluted after the English
Reformation, the U.S. Supreme Court has noted that: “... privileges
are rooted in the imperative need for confidence and trust. The
priest-penitent privilege recognizes the human need to disclose to a
spiritual counselor, in total and absolute confidence, what are believed
to be flawed acts or thoughts and to receive priestly consolation and
guidance in return.” The Court opined that the privilege is “indelibly
ensconced” in American common law. Without doubt, the privileged
nature of clergy communication has recognized value. In general,
clergy cannot be compelled to disclose privileged information in any
governmental legal proceeding or investigation.
Notwithstanding the importance of privileged communication
and centuries of historical relevance, the clergy privilege clashes
with many child abuse reporting statutes. Various state legislatures
Adult-to-adult disclosures
Many adults working in child-serving ministries are familiar with
reporting requirements related to an outcry from a child. Reporting
requirements related to reports by an adult of past abuse (abuse which
occurred as a child) create new legal territory for most ministry leaders.
In some states, legislatures have passed requirements making
adult-to-adult disclosures of past child abuse subject to mandatory
reporting laws. In Texas, Colorado and South Carolina, for example,
certain disclosures by an adult to another adult form the basis for a
mandatory report to child protective services or law enforcement. In
these states, a report is required when an adult reports abuse as a child
and the following criteria is met:
• When ‘disclosure of the abuse is necessary to protect another
child’ (Texas);
• If the alleged abuser holds a position of trust or authority related to
children (Colorado); or
• If ‘another child has been or may be abused’ (South Carolina).
In the past, it would be up to the reporting adult whether he or she
chose to report past abuse, largely based upon an understanding of
inherent privacy interests. As state legislatures continue to prioritize
child protection over the privacy rights of an adult abuse survivor, this
trend will continue.
For more information about changes in the law concerning adult
disclosures of past abuse, visit https://ministrysafe.com/church-executive.
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