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Mandatory Reporters and the Clergy-Penitent Privilege
Can confessions of child abuse be privileged conversations?

Does the "clergy-penitent" privilege exempt ministers from the obligation to report child abuse? That was the difficult question addressed by an Alaska appeals court. A man sexually molested a 4-year-old child who had been placed in his care for an evening. The molester sought help through counseling with a minister. After learning of the individual's sexual relations with a child, the minister reported the incident to the authorities. State troopers investigated the report, and the molester was prosecuted. The molester claimed that the troopers' investigation, and the subsequent prosecution, were based entirely on information he provided to his minister in the course of confidential counseling. As such, it was protected by the clergy-penitent privilege and could not be basis for a criminal prosecution. A trial judge agreed that the statements made to the minister were covered by the clergy-penitent privilege. On that basis, the judge ruled that the minister could not be called as a witness to testify regarding the statements made to him by the molester in the course of their confidential counseling session. On the other hand, the judge ruled that the minister had a legal obligation to report the abuse, and this duty was not affected by the clergy-penitent privilege. The molester appealed the trial judge's ruling, and an appeals court concluded that the trial court's decision was correct. The Alaska clergy-penitent privilege specifies that "a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser." The privilege applies "at all stages of all actions, cases, and proceedings." This is broad language, meaning that the privilege is not confined to "in court" testimony. The court concluded, however, that the minister's "report of sexual abuse was made in an out-of-court statement that was unrelated to any action, case, or proceeding then pending. For this reason, although it divulged confidential communications between [the molester and the minister], the report did not amount to a violation of the … clergy privilege." In summary, the court concluded that the clergy-penitent privilege applies only to pending "actions, cases, or proceedings," and accordingly it prevents a minister from testifying in court regarding a conversation protected by the privilege. However, the privilege does not excuse a minister from making a report of child abuse (and thereby initiating an official investigation) since at the time of a report there ordinarily is no pending legal action. Of course, this case assumes that a minister has a mandatory duty to report child abuse. This is true in only about half the states. In those states in which ministers are not required to report child abuse, they are free to refrain from making reports on the basis of information they receive in the course of confidential spiritual counseling. Of course, even in such cases there may be legal and ethical reasons why a minister would want to report the abuse. Walstad v. State, 818 P.2d 695 (Alaska App. 1991).

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