Application of Child Abuse Reporting Laws to Pastoral Counselors

Nussbaumer v. State of Florida, 882 So.2d 1067 (Fla. App. 2004)

A Florida court addressed the legal duty of ministers to report incidents of child abuse that are communicated to them in confidence in the course of spiritual counseling. This article will summarize the facts of this important case, explain the court’s ruling, and evaluate the significance of the case to ministers and churches.

Many ministers have faced the question of whether to report child abuse that is disclosed to them in the course of a conversation protected by the clergy-penitent privilege. Does the clergy-penitent privilege, which prevents certain communications to ministers from being admissible as evidence in civil or criminal trials, relieve ministers from a legal duty to report child abuse?

A recent case in Florida addressed an attempt by a prosecutor in a criminal case to compel a pastoral counselor to disclose information shared with him during counseling sessions. The prosecutor conceded that under Florida law ministers are not required to report child abuse that they learn of in the course of a privileged conversation, but he claimed that the clergy-penitent privilege did not apply in this case because the pastor was functioning as a “psychotherapist.” This article will review this important case and assess its relevance to pastors who engage in counseling.

An ordained pastor (Pastor Eric) served as senior pastor of a church. Pastor Eric also engaged in an active counseling ministry as part of his pastoral duties. He had a doctoral degree in “clinical Christian psychology” and was licensed as a clinical Christian psychologist by the Florida Association of Christian Counselors and Therapists (F.A.C.C.T.). F.A.C.C.T. is a nonprofit organization dedicated to developing and applying biblically based models of counseling and therapy that are supported by established psychological concepts.

One of Pastor Eric’s counselees was Scott. A local court issued Pastor Eric a subpoena, demanding that he turn over “any and all records relating to treatment and or counseling” of Scott “relating to his involvement with sexual abuse of a child.” Pastor Eric responded to the subpoena by sending the prosecutor a copy of his ordination certificate and informing him that the counseling notes he had compiled while counseling Scott were protected against disclosure by the clergy-penitent privilege. The prosecutor asked the court to compel Pastor Eric to comply with the subpoena, and to hold him in contempt of court if he failed to do so. Pastor Eric did not show up at the hearing, and later asked the court for an “order of protection as an ordained minister.” The court found Pastor Eric to be in contempt of court, but withheld sentencing until another hearing could be conducted.

The prosecutor insisted that the clergy-penitent privilege did not apply in this case since Pastor Eric was acting as a “psychotherapist” rather than a minister when counseling Scott, and, since the child abuse reporting law did not exempt psychotherapists from the duty to report child abuse, Pastor Eric had to turn over his counseling notes. The trial court agreed, and Pastor Eric appealed.

A state appeals court began its opinion by noting that the Florida child abuse reporting law made everyone a mandatory reporter with the exception of communications covered by the attorney-client or clergy-penitent privileges. The statute specifies,

The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the [clergy-penitent privilege] as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report [child abuse] regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.

Note the following features of this statute. First, it clarifies that except for the attorney-client and clergy-penitent privileges, the duty to report child abuse applies even if information concerning child abuse is obtained in the course of a communication that is “privileged” under state law. All other privileges do not excuse a failure to report child abuse, including the husband-wife, doctor-patient, and psychotherapist-patient privileges. Second, the attorney-client and clergy-penitent privileges not only excuse the reporting of child abuse, but also render attorneys and clergy incompetent to testify in civil or criminal trials relating to child abuse.

The court noted that the statute did not exempt any other types of privileged communications from the duty to report child abuse, including the psychotherapist-patient privilege. Therefore, Pastor Eric had to comply with the subpoena seeking his counseling notes if he was functioning as a psychotherapist rather than as a minister when he counseled Scott.

The court rejected the prosecutor’s argument that Pastor Eric had to comply with the subpoena because he was functioning as a psychotherapist when he counseled Scott and the child abuse reporting law did not list the psychotherapist-patient privilege as an exception to the reporting requirement. It pointed out that the psychotherapist-patient privilege only applied to confidential communications made to psychotherapists, and that the statute defined a “psychotherapist” as a person licensed to practice medicine or psychology, or licensed or certified by the state as a marriage and family therapist or mental health counselor.

Pastor Eric did not meet this definition, despite the fact that he had an advanced degree in “clinical Christian psychology” and was licensed as a clinical Christian psychologist by the F.A.C.C.T. As a result, the court concluded that “to the extent that the trial court found that Pastor Eric qualified as a ‘psychotherapist’ for purposes of the psychotherapist-patient privilege, we reject that finding because it is not supported by competent, substantial evidence.”

Having rejected the prosecutor’s claim that the psychotherapist-patient privilege applied to Pastor Eric’s counseling sessions with Scott, the court then turned to the question of whether the clergy-penitent privilege applied. If it did, then Pastor Eric was not required to turn over his counseling notes or testify in the prosecution of Scott for child molestation.

The Florida clergy-penitent privilege statute is similar to those enacted in many other states. It provides,

The court distilled this language into four requirements that must be present for the clergy-penitent privilege to apply: “First, the communication must be made to a member of the clergy as defined in the statute. Second, the confider must make the communication for the purpose of seeking spiritual counseling and advice. Third, the clergy member must receive the communication in the usual course of his or her practice or discipline. Fourth, the communication must be made privately and must not be intended for further disclosure except to other persons present in furtherance of the communication.” The court then applied these four requirements to the facts of this case.

(1) to a member of the clergy

The court concluded that this requirement was satisfied since Pastor Eric had been an ordained pastor since 1977, and his duties at the church included preaching at Sunday services, providing spiritual and administrative leadership, and pastoral counseling.

(2) for the purpose of seeking spiritual counsel and advice

The clergy-penitent privilege does not apply “unless the confider consults the member of the clergy for the purpose of seeking spiritual counsel or advice.” Since no Florida court had ever interpreted this language, the court looked to other states having identical or similar language in their clergy-privilege statutes. It noted that the “common thread in such cases is that the privilege may not be invoked to enshroud conversations with wholly secular purposes solely because one of the parties to the conversation happened to be a religious minister.”

The court concluded that Scott had sought out Pastor Eric for spiritual counsel and advice. It observed,

(3) in the course of the minister’s practice or discipline

The court noted that the requirement that the communication be made to the member of the clergy “in the usual course of his or her practice or discipline” had “not been the subject of any reported Florida decisions.” Once again, the court looked to court rulings in other states interpreting this language, and concluded that “although the interpretation of the discipline enjoined requirement is by no means uniform, the modern trend is to interpret it as requiring only that the confider consulted the clergy member in his or her professional capacity.” Based on this interpretation, this third requirement was satisfied.

(4) made privately and not intended for further disclosure

In order for the privilege to apply, the communication to the clergy member must be made “privately.” The presence of a third person or persons not present in furtherance of the communication when the communication is made renders the privilege inapplicable. Further, a communication to a member of the clergy is not confidential and not privileged if it is intended to be communicated to others.

The court noted that no third persons were ever present during Pastor Eric’s counseling sessions with Scott, and there was no evidence that Scott ever made any communications to Pastor Eric with the intent that the information be disclosed to someone else. As a result, the fourth requirement for the clergy-penitent privilege to apply was satisfied.

The prosecutor insisted that the clergy-penitent privilege did not apply to Pastor Eric because he was acting as a psychotherapist when counseling Scott. The court rejected this argument for the following reasons:

First, the focus of the clergy-penitent privilege is what the counselee is seeking rather than the nature of the pastor’s response. Since Scott sought spiritual advice and counsel from Pastor Eric, the privilege applies “and the inquiry is at an end.” It is not necessary to “examine Pastor Eric’s response and place it in the appropriate pigeonhole.”

Second, the prosecutor’s approach would require the court to review and interpret Pastor Eric’s message in order to determine whether it was spiritually based counseling or secular psychotherapy. Depending upon the circumstances, such a task might be difficult, if not impossible.

Psychotherapy may be defined as “the treatment of mental and emotional disorders through the use of psychological techniques designed to encourage communication of conflicts and insight into problems, with the goal being relief of symptoms, changes in behavior leading to improved social and vocational functioning, and personality growth.” The American Heritage Dictionary of the English Language 1415 (4th ed. 2000). We need not devalue religion to recognize that there are probably many instances in which it would be difficult to distinguish a call to personal growth based on a spiritual message from one that is only psychotherapeutic in origin. And if, as we would anticipate, the call to personal growth incorporates elements of the spiritual and the secular, what then? The prosecutor’s approach poses an array of overwhelming practical problems to the application of the clergy communications privilege. Fortunately, [the clergy-penitent privilege statute] does not require the courts to assess the spiritual content of the clergy member’s response to the confider’s request for spiritual advice and counsel.

Third, the prosecutor’s approach “runs afoul of the ecclesiastical abstention doctrine” which prevents the civil courts from interpreting religious doctrine or otherwise inquiring into matters involving religious dogma.” The judicial review of “the clergy member’s message required by the prosecutor’s approach would likely involve an interpretation of religious doctrine in violation of the ecclesiastical abstention doctrine. We decline to interpret [the privilege] in a way that would lead to such an interpretation of religious doctrine.”

The prosecutor claimed that Pastor Eric’s training and practice in the field of clinical psychology proved that he was acting as a psychotherapist and not as a member of the clergy in his counseling sessions with Scott. Once again, the court disagreed:

Initially, we note that it is not unusual for a member of the clergy to hold an advanced degree in such traditionally secular disciplines as psychology, sociology, philosophy, or even law. We are not willing to assume that a member of the clergy who has attained such an advanced degree is thereby rendered incapable of responding appropriately to a request for spiritual advice and counsel. It would be antithetical to the purpose of the clergy communications privilege if a clergy member’s attainment of an advanced degree in a subject other than religion, theology, or divinity could strip the confider of the benefit of the clergy communications privilege or make another privilege applicable in its stead regardless of the confider’s original purpose. Yet this would be the logical result of the state’s position.

More to the point, we also note that licensing requirements for persons performing psychological services and clinical, counseling, and psychotherapy services contain express exemptions for clergy members. These exemptions are indicative of the legislature’s intention to permit members of the clergy to perform pastoral counseling that might otherwise be characterized as psychological or psychotherapeutic services without being denominated as “psychologists” or “psychotherapists.” Such pastoral counseling is not inconsistent with clerical status. Thus the prosecutor’s division of pastoral counseling functions into the “spiritual” and the “psychotherapeutic” is a false dichotomy. Pastor Eric was a member of the clergy. Because Scott consulted him for spiritual advice and counseling in the usual course of his practice and discipline, the clergy communications privilege applies.

The prosecutor claimed that the clergy-penitent privilege did not apply in this case since Scott was not a member of Pastor Eric’s church. Must a counselee be a member of a minister’s church in order for the privilege to apply? No, concluded the court. It noted that the prosecutor could not cite a single case imposing a membership requirement on the application of the privilege. Further, the clergy-penitent privilege statute contained no such requirement. The court concluded,

The fact that the confider is not a member of the church of the clergy member consulted may be one circumstance among others relevant to the determination of the spiritual purpose or the discipline enjoined requirements of the privilege. However, the modern trend of authority does not support a requirement that the confider be a member of the clergy member’s church in order for the confider to claim the benefit of the privilege. Taking into account the absence of a membership requirement in [the statute] and the trend in the modern authority to dispense with such a requirement, we hold that Scott was entitled to claim the benefit of the privilege despite the fact that he was not a member of Pastor Eric’s church.

What is the relevance of this case to church leaders? Consider the following points:

1. In general. A decision by a Florida appeals court is not binding in any other state, and may be overturned by the state supreme court. However, since this is one of the few cases to address the application of the clergy-penitent privilege in the context of counseling provided by clergy with an advanced degree in clinical psychology, it likely will be given greater weight by courts in other jurisdictions facing similar questions. This makes the case relevant to church leaders in every state.

2. Be familiar with your state’s child abuse reporting law. Review the table in this article to determine if ministers are mandatory child abuse reporters in your state, and if so, if the reporting law contains a clergy-penitent privilege exception.

3. What if your state child abuse reporting law does not contain a clergy-privilege exception? The court noted that the Florida child abuse reporting law’s clergy-penitent privilege exception was added in 1985 through the efforts of a single pastor who had been cited for contempt and jailed briefly in 1984 after he refused to testify concerning communications made to him by a church member accused of sexually abusing a child. According to the table reproduced in this article, there are 21 states that do not recognize the clergy-penitent privilege as an exception to the duty to report child abuse. This means that 29 states do not have such a provision. Ministers in these 29 states (and especially those in which ministers are mandatory child abuse reporters) should consider contacting state legislators to urge enactment of a clergy-penitent privilege exception. Florida’s experience demonstrates the influence that one committed citizen can have in changing the law.

4. Legal versus moral duty. The fact that a minister learns of a case of child abuse in the course of a privileged conversation does not mean that the abuse should not be reported, even if the minister is in a state with a child abuse reporting law that contains a clergy-penitent privilege exception or that does not make ministers mandatory reporters. A clergy-penitent privilege exception simply means that ministers have the discretion to report or not report depending on their assessment of the circumstances. If a minister determines that interests served by the privilege outweigh those served by the reporting law, then the law allows the minister to make that choice.

5. Application of clergy-penitent privilege to psychotherapists. Many ministers have earned advanced degrees in counseling or psychology, or have been licensed by a state or private association as a mental health professional. Some serve as pastors and engage in counseling as part of their church ministry, while others have discontinued pastoral duties and serve strictly in a counseling role. Does the clergy-penitent privilege no longer apply to such ministers because of their training or license? The Florida case addressed in this article answers this question with a resounding “no.” Denying the clergy-penitent privilege to clergy with advanced training in counseling or psychology, or who have been licensed by a state or private association, would require a civil court to review and interpret the content of a minister’s counseling to determine if it was spiritually based counseling or secular psychotherapy. Not only would such a task be difficult if not impossible, but it also would violate the “ecclesiastical abstention doctrine” which prevents the civil courts from interpreting religious doctrine or inquiring into matters involving religious dogma.

The court also rejected the argument that a pastoral counselor’s advanced degree in clinical psychology disqualifies him or her from the clergy-penitent privilege. It pointed out that “it is not unusual for a member of the clergy to hold an advanced degree in such traditionally secular disciplines as psychology, sociology, philosophy, or even law,” and was “not willing to assume that a member of the clergy who has attained such an advanced degree is thereby rendered incapable of responding appropriately to a request for spiritual advice and counsel. It would be antithetical to the purpose of the clergy communications privilege if a clergy member’s attainment of an advanced degree in a subject other than religion, theology, or divinity could strip the confider of the benefit of the clergy communications privilege or make another privilege applicable in its stead regardless of the confider’s original purpose.”

6. No “membership” requirement. The court in this case rejected the argument that the clergy-penitent privilege applies only to counseling between a pastor and a member of his or her church. It noted that the “modern trend” of court rulings “did not support a requirement that the confider be a member of the clergy member’s church in order for the confider to claim the benefit of the privilege.

7. Application of the clergy-penitent privilege to counseling notes. The court concluded that the clergy-penitent privilege applies not just to oral communications but also to “any records relating to them.” This includes written notes made by ministers in the course of providing confidential spiritual counseling.

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