“ In state legislation listing mandatory reporters by profession , the trend is to add clergy to that list .”
“ 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
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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 .
STOP CHILD SEXUAL ABUSE • CHURCH EXECUTIVE 19