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Clergy-Penitent Privilege May Not Protect Church Elders Who Did Not Report Child Abuse Case
Key point 3-08.08. Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.

A Delaware court ruled that the clergy-penitent privilege did not necessarily protect two church elders who failed to report a case of child abuse that was shared with them by the victim and his mother. In 2013, a juvenile member (the "victim") of a church reported to his mother that he was engaged in a sexual relationship with an adult female church member. Two church elders met with the victim and his mother at the church. The elders were informed of the sexual relationship. They later spoke with the adult member who confirmed that the relationship occurred. Both the victim and the perpetrator were "disfellowshipped" (excommunicated) from the congregation. The elders did not report the child abuse under the procedures established by the state child abuse reporting law. The state of Delaware assessed civil penalties against the church and its two elders (the "defendants").

The defendants asked a trial court to dismiss the state's demand for civil penalties on the basis of section 909 of the Delaware child abuse reporting statute, which provides:

No legally recognized privilege, except that between attorney and client and that between priest and penitent in a sacramental confession, shall apply to situations involving known or suspected child abuse, neglect, exploitation or abandonment and shall not constitute grounds for failure to report as required by § 903 of this title or to give or accept evidence in any judicial proceeding relating to child abuse or neglect.

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