During one of our church services, someone submitted a prayer request card describing a situation that may involve child abuse. How should we respond to this situation and any future ones like it?
The first thing to do is carefully read the prayer request card to determine whether the situation is described with sufficient specificity to evaluate under the relevant child abuse statutes. Does the card identify the child or sufficient facts to identify the child? Does it describe a current situation or one that occurred years ago? Does it describe circumstances in detail sufficient to evaluate as potential child abuse? If the prayer request fails any one of these questions, then the church should contact the requestor for more information to determine the answers.
Assuming the church has sufficient information, the next thing to do is evaluate your state’s mandatory child abuse reporting law
. This will help you determine what constitutes a legally required report of child abuse or neglect and who the law says is a required reporter. The top priority is to determine whether the person who read the card is a mandatory reporter. Generally, if someone is a mandatory reporter, the report must be made very quickly. Time is of the essence.
Additionally, the definition of what is considered abuse or neglect is also important to review. Neglect can be very broad in some states. Therefore, what may be a required disclosure in one state may not be required in another. The church should also review its policies and procedures regarding child abuse and neglect reporting. Hopefully, these policies and procedures have been vetted by an attorney knowledgeable about your state’s child abuse reporting status. Each church should be familiar with the statutory definitions of child abuse and neglect.
For an example, let’s consider what reporting might look like in California
—the state in which I practice law. California’s Penal Code has an extensive list of those who are considered mandated reporters of suspected child abuse. Clergy members, which are defined in the Code as a “priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization,” fall within the category of mandated reporters.
In addition, “any custodian of records of a clergy member” are mandated reporters. This means that church secretaries and other lay people could be considered mandated reporters if their job—or even voluntary function—is to maintain records for clergy. According to the California Penal Code, “[a] mandated reporter shall make a report to an agency whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.”
After determining whether there is a reportable offense and if it was made to a mandatory reporter, the second step is to determine if there is an exception for penitential communication. Or, to put it in another way, you should determine if the communication is protected by your state’s law addressing the clergy-penitent privilege
. Some states do not require clergy to report if the communication is penitential in nature. Using California as an example again, a penitential communication is defined as “a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.” The provision is narrow. The Penal Code states that the exception does not limit a clergy member’s duty to report known or suspected child abuse or neglect when the clergy member is acting in some other capacity that would otherwise make the clergy member a mandated reporter.” Therefore, a pastor is a mandated reporter unless the prayer card is considered a penitential communication.
Courts have yet to address whether a prayer card would be considered a penitential communication. However, churches can take steps to bring some clarity to this issue.
An initial step is to include a statement on the prayer card that says “CONFIDENTIAL—For the pastoral team only.” The goal is to indicate that the prayer request is intended to be read only by someone in a pastoral role. This could be helpful evidence that the communication was intended to be penitential and the pastor might not be a mandated reporter in that situation.
If the prayer card does not indicate that the prayer request is only to be read by the pastors, then the pastor cannot reasonably invoke the provision and should make an immediate report assuming the circumstances describe potential child abuse or neglect. In California, the code requires reports to be made “as soon as is practicably possible” and a written report is required within 36 hours. The quick time frame demonstrates why it is important for a church to understand its role in reporting suspected child abuse or neglect.
However, if the card was not marked confidential, or it was still seen by someone other than a pastor, the question remains as to who read the prayer card. Was it a prayer team volunteer, an usher, or a church secretary? Are any of these people mandated reporters? If someone is not a pastor by title but employed by the church in a role that is ministerial in nature, they could be viewed as a mandated reporter and must make an immediate report. The church should address this issue in its child abuse and neglect reporting policy. Since this is a fact-specific matter, it may be best to have an attorney review the matter prior to the leadership choosing to make the report.
After all these questions have been asked and answered, one question remains: How should a church respond to a prayer card where abuse is at least implied? This will look different for each church. Everyone wants to keep children safe and well cared for. Even if the prayer card is confidential and the reader is exempt from making a report, churches should always consider the steps they can take to ensure the safety of children who are at risk of harm or neglect. We recommend that all churches have a comprehensive plan
in place to minimize the risk of abuse and to follow up with all reports of possible child abuse and neglect.
Kelli Marsh is an attorney with Church Law Center, offering clients legal counsel in the areas of governance and tax-exemption.