Priest Not a Mandatory Reporter in Child Abuse Case

Overview

Every state has a child abuse reporting law that requires persons designated as “mandatory reporters” to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states, but some states exempt them from the reporting obligation if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. This generally refers to communications, in confidence, with a minister in the course of spiritual counsel.

This article explores a decision by the Louisiana Supreme Court regarding some of these issues. Of note, the court concluded a minister can be subject to civil liability for failing to report child abuse to the authorities, unless the minister learned of the abuse solely in the course of a conversation protected by the clergy-penitent privilege.

Background

Parents of Minor Child v. Charlet, 135 So.3d 1177 (La. 2014)

Key Point 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

A 64-year-old male (“Phil”) was a long-time and respected member of a Catholic church. He began exchanging emails with a 14-year-old girl (the “victim”) whom he met at church. The emails increased in frequency and became “laced with seductive nuances.” The relationship culminated in kissing and fondling.

The victim became confused and scared over the evolving “relationship” with Phil, and on three separate occasions she decided to seek spiritual guidance through confession with her priest. On each occasion she related to the priest that Phil had inappropriately touched her, kissed her, and told her that “he wanted to make love to her.” The victim alleged that the priest instructed her to handle the situation herself, because otherwise, “too many people would be hurt.”

Following these three meetings with the priest, the abusive acts continued. The priest and the victim's parents later met with Phil and his spouse concerning the “obsessive number of emails and phone calls” between Phil and the victim and the seemingly inappropriate closeness between the two that had been observed by various parishioners.

Shortly thereafter, the parents confronted their daughter about the emails and phone calls, at which time, she confessed to the true nature of the relationship, including details of the inappropriate sexual contacts. The parents immediately contacted Phil, ordering him to cease contact with their daughter, and filed a formal complaint with the local sheriff's department. An official investigation was ongoing when Phil died unexpectedly from a heart attack.

The parents filed a lawsuit naming as defendants the priest, for allegedly being a mandatory reporter who failed to report the abuse allegations; and their church, alleging vicarious liability for the alleged misconduct of the priest in failing to report the sexual abuse, as well as for the negligent training and supervision of the priest.

Shortly before the scheduled trial date, the church filed a motion seeking to prevent the plaintiffs from “mentioning, referencing, or introducing evidence at trial of any confessions that may or may not have taken place” between their minor child and the priest, while the priest was acting in his official capacity hearing a confession from his parishioner. The trial court denied the motion, finding the testimony of the victim regarding the confession was relevant and, as the holder of the privilege, she was entitled to waive it and testify. However, the trial court “did recognize the conundrum with which the priest is presented, and I know his solution to that is going to be that he is not going to say anything about any confession.”

A state appeals court reversed the trial court's ruling and concluded that the parents could not compel the disclosure of their daughter's communications with the priest. The court reasoned:

Because we have concluded that the priest is not a mandatory-reporter, there can be no private or civil cause of action against him for any breach of a statute inapplicable to him; thus, any evidence or testimony, by anyone, regarding the occurrence of a confession, or the subject matter thereof, is wholly inadmissible, irrelevant, and non-probative. Accordingly, the motion seeking to exclude all such evidence, should have been granted.

The appeals court further found no civil remedy for violation of a mandatory reporter's duty to report child abuse. Accordingly, the court dismissed the plaintiffs' claims against the priest and the church in their entirety. The parents appealed this ruling to the Louisiana Supreme Court.

the clergy-penitent privilege

The state supreme court first addressed the application of the clergy-penitent privilege to the victim's communications with her priest. The Louisiana clergy-penitent privilege, set forth in Code of Evidence Article 511, provides:

A. Definitions. As used in this Article:

(1) A “clergyman” is a minister, priest, rabbi, Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.

(2) A communication is “confidential” if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

B. General rule of privilege.
A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person. (emphasis added)

The court noted that, according to this language the privilege “clearly belongs to the penitent-communicant, not to the priest.” It observed:

A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman …. It follows, if the penitent waives the privilege, the priest cannot then raise it to protect himself as he can only “claim the privilege on behalf of the person,” not in his own right. Therefore, we find the appellate court erred in granting the church's motion excluding all evidence of the confession in its entirety as the child is free to testify and introduce evidence as to her own confession.

failure to report child abuse

Can a minister be subject to civil liability for failing to report child abuse to the authorities? The court referenced “the duty imposed by law on members of the clergy” under the state child abuse reporting law, which defines a mandatory reporter to include a member of the clergy:

“Member of the clergy” is any priest, rabbi, duly ordained clerical deacon or minister, Christian Science practitioner, or other similarly situated functionary of a religious organization, except that he is not required to report a confidential communication, as defined in Code of Evidence Article 511, from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential. In that instance, he shall encourage that person to report the allegations to the appropriate authorities ….

As a result, “a member of the clergy as a mandatory reporter under this provision has a mandatory duty to report abuse in accordance with the following provision of the child abuse reporting law:

Notwithstanding any claim of privileged communication, any mandatory reporter who has cause to believe that a child's physical or mental health or welfare is endangered as a result of abuse or neglect or that abuse or neglect was a contributing factor in a child's death shall report [the abuse to the authorities].

The supreme court concluded that the appeals court erred in concluding that the priest could not be personally liable for violating his duty to report the victim's abuse. The appeals court concluded that “there is no duty on a clergy member, the breach of which would sustain a private or civil cause of action.” But the supreme court disagreed, noting that such a conclusion

disregards our general concept of liability set forth in our Civil Code that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” and “every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” It likewise disregards the duty imposed by law on members of the clergy [to report child abuse].

The court also rejected the appeals court's conclusion that the priest was not required to report the victim's abuse because he learned about it in conversations with the victim that were protected by the clergy-penitent privilege. Such a conclusion, the court concluded, assumed that the victim's communications with the priest fit within the narrow exception of privileged communications as defined in Code of Evidence Article 511 (above), meaning

from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential.

The court concluded that “there exist material issues of fact concerning whether the communications between the child and the priest were confessions and whether the priest obtained knowledge outside the confessional that would trigger his duty to report.”

The supreme court sent the case back to the trial court for further consideration.

Relevance to church leaders

The Louisiana Supreme Court's decision is relevant to church leaders because it directly addresses the role of the clergy-penitent privilege with respect to child abuse reporting laws. Leaders must be aware of who may claim the clergy-penitent privilege. Leaders also must be aware when the privilege may be waived.

Additionally, as this Louisiana Supreme Court ruling illustrates, leaders also must be aware of the potential civil liability of clergy, who are mandatory child abuse reporters under state law, for failing to report abuse. The court concluded that a minister can be subject to civil liability for failing to report child abuse to the authorities, unless the minister learned of the abuse solely in the course of a conversation protected by the clergy-penitent privilege. It rejected the lower court's conclusion that “there is no duty on a clergy member, the breach of which would sustain a private or civil cause of action.” Such a conclusion, the supreme court concluded,

disregards our general concept of liability set forth in our Civil Code that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” and “every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” It likewise disregards the duty imposed by law on members of the clergy [to report child abuse].

Lastly, leaders must know potential criminal liability for failing to report abuse.

The issues raised in this article are covered in greater detail in Richard Hammar’s article, “Child Abuse Reporting and the Clergy Privilege.”