Child Abuse Reporting

A California court ruled that the “ecclesiastical privilege” prevented it from resolving a pastor’s lawsuit against his denomination.

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08 . 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A California court ruled that the "ecclesiastical privilege" prevented it from resolving a pastor's lawsuit against his denomination in which he claimed that a denominational officer "barred" him from preaching in a church in order to prevent him from learning of and reporting an incident of child abuse allegedly perpetrated by the officer.

James was ordained as an elder in the United Methodist Church in 1951. This ordination enabled him to preach, conduct weddings and funerals, and provide all other sacraments recognized by the church. In 1994 he was acting as an associate pastor in a church when the senior pastor became incapacitated. Pastor James applied for the senior pastor position, but his application was "derailed" by his district superintendent. Instead, a new pastor was appointed. The church membership rejected the new pastor's appointment and Pastor James remained as the interim pastor for an additional year until his retirement. Shortly after Pastor James' retirement, the district superintendent issued a "barring order" preventing him from preaching or worshipping at the church. Pastor James did not learn of the barring order until 2002 when the church's senior pastor invited Pastor James to conduct worship services while he was out of town. The senior pastor was informed by denominational officials of the barring order, and he rescinded his invitation.

Pastor James later sued his annual conference as a result of the barring order and rescission of the invitation to preach. Pastor James' lawsuit claimed that after he was rejected as senior pastor at the church in 1994 the district superintendent appointed another pastor who was rejected by the congregation; and, that the superintendent thereafter sent a letter to a 16-year-old youth leader who was a member of the church's pastor-parish relations committee regarding her participation in the rejection of the new pastor. In the letter, the superintendent charged the youth leader with "knowingly becoming involved in a smear campaign" against the pastor, being involved in "unchristian behavior" by acting on gossip, and "undermining the ministry of a pastor," which was a "chargeable offense" that risked one's standing in the denomination as well as possible legal repercussions.

The youth leader was extremely upset as a result of this letter. Pastor James' lawsuit alleged that the letter constituted "emotional child abuse" and was viewed as such by church leaders. The superintendent knew that Pastor James was a psychologist and, therefore, a mandatory reporter of child abuse, and he feared that if he became senior pastor he would discover that the superintendent had been accused of the abuse of a minor church member and that as a mandatory reporter he would have been obliged to report the alleged abuse to the authorities. To prevent this, Pastor James alleged, the superintendent embarked upon a plot to prevent him from learning about the abuse, and this included the issuance of the secret barring order.

A state appeals court began its opinion by noting that when a dispute involves the employment or termination of employment of clergy, the "ecclesiastical privilege" applies barring the civil courts from intervening. The rule "is about as absolute as a rule of law can be—the first amendment guarantees to a religious institution the right to decide matters affecting its ministers' employment, free from the scrutiny and second-guessing of the civil courts." And, this is true "regardless of whether the termination, or other adverse action, was taken for theological reasons. The fact that the employee was a clergyperson is enough to trigger the privilege."

The court noted that Pastor James was claiming that the barring order was part of an attempt to prevent him from discovering and reporting an act of reportable child abuse. Reportable child abuse, under the applicable reporting law, includes "a situation where any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering." The court rejected Pastor James' argument that the superintendent's letter to the youth leader constituted a willful infliction of unjustifiable mental suffering. It observed, "[The superintendent] wrote a single letter to the official youth member of a church pastor-parish relations committee expressing his displeasure at the member's participation in the rejection of a pastor. While the letter may have caused the youth leader to experience some feelings of guilt, anxiety, or remorse, the letter does not constitute child abuse. A youth leader who participates in a church committee and is reprimanded by a member of the church hierarchy for decisions made by that committee regarding church leadership is not a victim of child abuse."

The court concluded that Pastor James' lawsuit was subject to the ecclesiastical privilege, and that he was attempting "to circumvent the bar of the ecclesiastical privilege by arguing [that the superintendent] barred him from the church in order to prevent him from discovering and reporting an act of child abuse. Even if he were barred to prevent his discovery of the letter to the youth leader, the letter was not an act of child abuse. Therefore, there is no compelling governmental interest at issue in this case sufficient to override application of the ecclesiastical privilege."

Application . Note that clergy were not mandatory reporters of child abuse in California in 1994 when the alleged abuse in this case occurred. But, Pastor James was a mandatory child abuse reporter because he was a psychologist. As a result, it was Pastor James' contention that the superintendent attempted to bar him from serving as pastor of the church in order to prevent him from learning of and reporting the "abuse" of the youth leader. The court rejected this argument as nothing other than an attempt to avoid the dismissal of his claims against the church on the basis of the ecclesiastical privilege. The court concluded that the child abuse reporting law could not be used in this manner. Johnson v. California-Pacific Annual Conference of the United Methodist Church, 2004 WL 2474437 (Cal. App. 2004).

Legal Developments

Child Abuse Reporting

A Pennsylvania court ruled that a victim of child abuse could not sue ministers who knew of the abuse but failed to report it.

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08 . 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Pennsylvania court ruled that a victim of child abuse could not sue ministers who knew of the abuse but failed to report it, but he could sue the church for breaching its promise to pay his counseling bills.

A 36-year-old male (Eric) claimed that he was sexually molested by three priests some 20 years before when he was 16 years of age. He sued his former church and diocese on the basis of several theories of liability including a failure to report the abuse when it happened pursuant to the state child abuse reporting law, breach of a fiduciary duty, and negligent supervision. In addition, Eric claimed that when he informed the diocese of the abuse in 2002, he was assured by diocesan officials that the diocese would pay for psychological treatment which was not covered by insurance. However, he claimed that a year later the diocese ceased payment of these bills and instead imposed "oppressive conditions" that would have to be met for the payments to resume. These conditions required the diocese to review a clear treatment plan that would include both comprehensive psychiatric and psychological evaluation "to ensure that the recommended treatment plan is well reasoned and has a high probability of being a benefit to him."

failure to report child abuse

Eric claimed that the church and diocese were responsible for his injuries because they failed to report suspected child abuse pursuant to the state child abuse reporting law. At the time of the alleged abuse in 1980 and 1981, the reporting law did not specifically list clergy as a category of those required to report abuse. Clergy were not added to the list of mandatory reporters until the law was amended in 1995. The court refused to apply the 1995 amendment retroactively to make church and diocesan officials mandatory reporters in 1980 and 1981. It concluded that "no statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." Such an intent was not present in this case.

counseling fees

While the diocese's promise to pay Eric's counseling bills was initially an unenforceable, oral commitment, it may have become enforceable as a result of the legal doctrine of "promissory estoppel." The doctrine of promissory estoppel "is invoked when there is no enforceable agreement between the parties" and is applied "to avoid injustice by making enforceable a promise made by one party to another, when the promisee relies on the promise, and therefore changes his position to his own detriment." The court noted that Eric began treatment in reliance upon the otherwise unconditional promise to pay, and then discontinued his treatment because the diocese failed to continue to make payments.

Application . This case is important for two reasons. First, it affirms the general view that ministers who fail to report known or reasonably suspected incidents of child abuse do not thereby expose either themselves or their employing church to civil liability unless they are mandatory reporters under the reporting law and civil liability for failing to report is imposed either by the reporting law itself or by court decisions in that state.

Second, this is one of the few courts to address the issue of counseling fees paid by a church to a victim of clergy sexual abuse. The court concluded that the church's promise to pay Eric's counseling fees was unenforceable at the time it was made, based on the principle of "consideration." It is a fundamental principle of contract law that a promise is not legally binding or enforceable unless the party making the promise receives something of value (called "consideration") in exchange. Since the diocese received nothing in exchange for its promise to pay Eric's counseling bills, its promise was unenforceable. However, there are certain exceptions to this rule, including the doctrine of promissory estoppel. As the court noted, this doctrine may make an unenforceable promise enforceable "when the promisee relies on the promise, and therefore changes his position to his own detriment." The court noted that Eric began treatment in reliance upon the otherwise unconditional promise to pay, and then discontinued his treatment because the diocese failed to continue to make payments. As a result, the church's promise to pay the counseling bills may have become enforceable. Morrison v. Diocese of Altoona-Johnstown, 2004 WL 3141330 (Pa. Com. Pl. 2004).

Legal Developments

Child Abuse Reporting

A federal appeals court ruled that a church was not liable for a minister’s acts of child molestation on the basis of a failure to comply with the state child abuse reporting law.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08. 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.
Failure to Report Child Abuse

A federal appeals court ruled that a church was not liable for a minister's acts of child molestation on the basis of a failure to comply with the state child abuse reporting law since ministers were not mandatory reporters at the time of the abuse and the church had no reason to suspect that the minister was engaging in such acts.

An adult male (Randy) sued a church and diocese claiming that he had been sexually molested by a priest when he was a 16-year-old student attending a church school. Randy claimed that the priest sexually abused him on multiple occasions, often after serving him alcohol, and that he repressed the shame associated with the abuse and discovered the link between the abuse and his psychological injuries only years later, when a psychologist explained that his emotional problems stemmed from the experiences with the priest. Randy asserted that the diocese had a legal duty to report child abuse, and that its failure to do so constituted negligence. A state appeals court disagreed. It acknowledged that "clergy" have been mandatory reporters under the Pennsylvania child abuse reporting law since 1995, but concluded that clergy were not mandatory reporters prior to 1995, and that the diocese had no reason to suspect that the priest had molested Randy and so there was nothing to report even if a duty did exist. As a result, the court dismissed Randy's claim. Hartz v. Diocese of Greensburg, 94 Fed.Appx. 52 (3rd Cir. 2004).

Legal Developments

Child Abuse Reporting

A Minnesota court ruled that a failure by church leaders to report known cases of child abuse as required by state child abuse reporting law did not expose the church to liability.

Richard R. Hammar, Attorney, CPA

Bio

State: Minnesota
Categories: Child Abuse Reporting

Key point 4-08. 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.
Failure to Report Child Abuse

A Minnesota court ruled that a failure by church leaders to report known cases of child abuse as required by state child abuse reporting law did not expose the church to liability.

Two adult females (the plaintiffs) claimed that they had been sexually molested over several years when they were minors by the same adult male (Don). They also claimed that their parents were aware of the molestation, and reported it to the elders of their Jehovah's Witness church. The plaintiffs alleged that Jehovah's Witnesses doctrine requires members "to associate only with other members of the Jehovah's Witnesses organization and avoid association with other people who are not Jehovah's Witnesses." They also alleged that members are expected to bring all allegations of wrongdoing to church elders. If a member makes an allegation of wrongdoing to anyone other than an elder, including law enforcement, that person can be accused of gossip or slander, which are punishable offenses within the church. According to Jehovah's Witnesses doctrine, wrongdoing cannot be proven without two eyewitnesses to the wrongful act, nondisputable evidence, or confession by the wrongdoer. According to the presiding overseer of the plaintiffs' church, upon hearing allegations of child abuse the elders are supposed to contact legal counsel at the Jehovah's Witnesses national headquarters and make a report to civil authorities if directed to do so by counsel.

When the plaintiffs' parents informed church elders of the molestation of their daughters, the elders investigated the allegation, did not immediately report the information to law enforcement, informed the national headquarters, and allowed Don to continue as a member of the church. The elders instructed the parents not to report the abuse to anyone and threatened to "disfellowship" (excommunicate) them if they did so.

The plaintiffs later sued their church and national headquarters, claiming that the "church defendants" were responsible for Don's acts because they failed to report his conduct to civil authorities as required by the state child abuse reporting law. A trial court dismissed the plaintiffs' lawsuit, and they appealed.

A state appeals court ruled that the state nonprofit corporation law, which requires ministers and other "mandatory reporters" to report known or reasonably suspected incidents of child abuse, "does not create a private cause of action for violation of its reporting requirements or create a duty which could be enforced through a common-law negligence action." Therefore. the plaintiffs' claims had to be rejected.

The court also rejected the plaintiffs' claim that the church defendants had a legal duty to protect them against a known child molester. It observed, "The fact that an actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action unless a special relationship exists between the actor and the other which gives the other the right to protection." The plaintiffs claimed that a special relationship existed between them and church elders as a result of Jehovah's Witnesses doctrine which requires members to rely on congregation elders for all of their concerns, and that allows members to associate only with other Jehovah's Witnesses who are in good standing with the church. The plaintiffs insisted that this amounted to significant control which deprived them of normal opportunities for self-protection. The court disagreed noting that special relationships typically involve custody exercised by one person over another, and in this case the church had not exercised custody over the plaintiffs at the time the molestation occurred. Rather, the molestation occurred at Don's residence, on a snowmobile, and in an automobile.

The court concluded that "providing faith-based advice or instruction, without more, does not create a special relationship …. Mere knowledge coupled with power is insufficient to impose a duty." Further, the church's doctrine that requires members to bring complaints exclusively to the attention of elders did not constitute an affirmative duty to investigate allegations of wrongdoing and protect congregants from future wrongful acts. The church "did not assume a duty to the plaintiffs but rather acted within their constitutional right to religious freedom, which includes the authority to independently decide matters of faith and doctrine." Meyer v. Lindala, 675 N.W.2d 635 (Minn. App. 2004).

Legal Developments

Child Abuse Reporting

A New York court ruled that a school principal and counselor could be personally liable for failing to report suspected child abuse to state authorities.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08 . 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A New York court ruled that a school principal and counselor could be personally liable for failing to report suspected child abuse to state authorities.

A 9-year-old girl informed her mother that she had been sexually molested by her half-brother, Anthony. The mother reported this information to a school counselor who referred the girl to a counseling center for professional counseling. The mother then informed the school principal of Anthony's behavior. A few months later, the mother learned that Anthony had been subjecting two other sisters to continuous acts of sexual intercourse and she immediately called the police. The mother later sued the school counselor and principal for failing to report the allegations of sexual abuse to the statewide central register of child abuse. New York's child abuse reporting law requires mandatory reporters to report child abuse "when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."

The child abuse reporting law specifies that "any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure."

Both the school counselor and principal were mandatory reporters under state law, and as such were potentially liable for failing to report the information shared with them by the mother. They claimed, however, that reportable child abuse was defined by state law to include only such abuse as is inflicted upon a minor by a "parent or other person legally responsible for his care." The counselor and principal argued that since Anthony was not a person "legally responsible" for the care of any of the victims, they were not required to report the mother's allegations of abuse as required by state law. The court disagreed. It concluded,

It is not the duty of the mandated reporter to assess whether the abuser would be considered by Family Court to be a "person legally responsible" or whether a "person legally responsible" allowed the abuse to occur. If [the mandated reporter] has reasonable cause to suspect that a child has been sexually abused, the reporter must report immediately. It is the duty of the investigating agency to determine whether the report was founded.

Application . This case demonstrates two important points. First, mandatory reporters of child abuse under state law may be personally liable for failing to report known or reasonably suspected cases of child abuse. A listing of each state that imposes liability on mandatory reporters who fail to report abuse is contained in a feature article that appeared in the May-June 2004 issue of this newsletter. Second, the court in this case concluded that the principal and counselor could be personally liable for failing to report suspected child abuse even though they did not believe reportable abuse had occurred since Anthony was not a person "responsible for the care" of the victims. The court ruled that it is the duty of the state, and not mandatory reporters themselves, to determine if a perpetrator of child abuse is someone "responsible for the care" of the victim. As a result, the principal and counselor erred in not reporting the suspected abuse, and letting the state decide whether or not the abuse met the definition of reportable abuse under the law. Catherine G. v. County of Essex, 761 N.Y.S.2d 727 (Sup. Ct. 2003).

Legal Developments

Child Abuse

A Florida court ruled that a victim of child abuse cannot sue a mandatory child abuse reporter who knew of the abuse but failed to report it.

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08 . 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Florida court ruled that a victim of child abuse cannot sue a mandatory child abuse reporter who knew of the abuse but failed to report it.

A counselor met with a divorced woman and her minor children, and concluded that the children had been sexually molested by their father. Though the counselor was a mandatory child abuse reporter under state law, she chose not to report the abuse. The mother used the counselor's opinion to obtain an injunction against her former husband, without advance notice to him. Because the husband did not have advance notice of the injunction, he did not have an opportunity to defend against the allegations. The injunction denied him legal custody of his children and effectively denied him all parental rights, including visitation.

The father sued the counselor (and the counselor's employer), claiming that her failure to report the abuse denied him the opportunity to prove his innocence in the course of a state investigation. A state appeals court concluded that the child abuse reporting statute does not authorize civil lawsuits against mandatory reporters who fail to report known or suspected cases of child abuse.

The court noted that the child abuse reporting statute does not specifically create "a cause of action for violation of its terms." It acknowledged that a cause of action could be "implied" if there was clear evidence of a legislative intent to create one, but it failed to find such an intention in the statute.

It observed, "We find nothing in [the statute] that suggests such an intent. On the contrary, we note that [it] appears to address the subject of penalties for failure to report known or suspected child abuse and makes such nonfeasance a first-degree misdemeanor. It says nothing about the availability of a cause of action for damages …. Accordingly, we hold that [the child abuse reporting statute] does not create a cause of action for damages."

Application . This case is important because it rejects the argument that mandatory child abuse reporters can be personally liable for failing to report known or suspected abuse. While such reporters are subject to criminal liability (a misdemeanor) for failing to report, they may not be subject to personal liability in a civil lawsuit for failing to report, at least in states that follow the ruling in this case. Welker v. Southern Baptist Hospital of Florida, 2004 WL 34512 (Fla. App. 2004).

Legal Developments

Child Abuse

The Georgia Supreme Court ruled that a person who reported suspected child abuse to the authorities could not be sued by the alleged perpetrator.

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08 . 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

The Georgia Supreme Court ruled that a person who reported suspected child abuse to the authorities could not be sued by the alleged perpetrator after the report was determined to be unfounded.

Many pastors, lay church employees, and volunteers are mandatory reporters of child abuse under state law. Mandatory reporters are legally required to report known and reasonably suspected cases of child abuse to a designated state agency. Often, it is very difficult to know if abuse has occurred. This raises the possibility that abuse in some cases will be reported that in fact never occurred, so long as the reporter had a "reasonable suspicion" that it did.

In a recent case in Georgia, a mother suspected that her two young daughters had been sexually molested by their paternal grandfather after spending a weekend with him. She took the girls to a counselor, who reported the suspected abuse to the state. The prosecutor later announced a "nolle pros" of the case, meaning that a decision had been made not to prosecute (neither innocence nor guilt is to be inferred from such a disposition). The grandfather sued the counselor for filing a false report.

The state supreme court noted that the child abuse reporting law provided "immunity" from civil or criminal liability to anyone who "in good faith" reports child abuse. The court continued,

We conclude that immunity may attach in two ways, either by showing that "reasonable cause" exists or by showing "good faith." Once a reporter has reasonable cause to suspect child abuse has occurred, she must report it or face criminal penalties. The trigger for the duty to report is "reasonable cause to believe," which requires an objective analysis. The relevant question is whether the information available at the time would lead a reasonable person in the position of the reporter to suspect abuse. Once reasonable cause has been established under this standard, a reporter complying with the statutory mandate to make a report is, by definition, operating in good faith. Therefore, if the objective analysis supports the reporter's conclusion that child abuse has occurred, then immunity attaches and there is no need to further examine the reporter's good faith.

On the other hand, if under an objective analysis, the information would not lead a reasonable person to suspect child abuse, the reporter may still have immunity if she made the report in good faith …. Good faith is a subjective standard … a state of mind indicating honesty and lawfulness of purpose; belief that one's conduct is not unconscionable or that known circumstances do not require further investigation …. Thus, the relevant question is whether the reporter honestly believed she had a duty to report. A reporter acting in good faith will be immune even if she is negligent or exercises bad judgment.

The court concluded that the evidence in this case clearly demonstrated that the counselor was acting in good faith when she made the report. In particular, the court noted that the victims were young children who made specific allegations of sexual contact by their grandfather. The "sexually explicit nature of these allegations by such young children raised a concern about the possibility of abuse. We conclude that, as a matter of law, the children's allegations are sufficient to cause a reasonable person to suspect that child abuse has occurred." As a result, the court dismissed the grandfather's lawsuit against the counselor.

The court rejected the grandfather's argument that even if a reporter has reasonable cause to believe that child abuse has occurred, he may be personally liable for reporting the abuse if he did so in bad faith. The court noted that "this interpretation chills the reporting requirement and fails to honor the legislative goal of protecting children by encouraging the reporting of suspected child abuse. It furthermore would require a mandatory reporter to make a detailed investigation before making a report. Such an investigation is contrary to the statutory scheme that places the job of investigation on child welfare authorities and the criminal justice system."

Application . Every state provides limited immunity from liability to persons who report child abuse. According to this court, reporters have immunity from liability if they (1) have a reasonable suspicion that child abuse has occurred, or (2) act in good faith. The counselor in this case satisfied both of these grounds, and so there was no basis for personal liability. Second, the court concluded that "specific allegations" of sexual molestation by young children raise an inference of child abuse that trigger the immunity from liability provided by law. O'Heron v. Blaney, 583 S.E.2d 834 (Ga. 2003).

Legal Developments

Child Abuse Reporting

Maryland’s highest court ruled that the state child abuse reporting law included a school teacher after school hours who molested a minor while driving her home from school.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08 . 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

Maryland's highest court ruled that the state child abuse reporting law which limited reportable abuse to abuse inflicted by parents or "a person responsible for the supervision of a child" included a school teacher after school hours who molested a minor while driving her home from school.

The court's decision provides helpful guidance in the interpretation of reportable child abuse, since many states have laws restricting reportable abuse to acts committed by parents or others responsible for the care of a minor. A teacher volunteered to drive a 14-year-old girl home following classes on the last day of school, and en route he stopped at his home and engaged in sexual intercourse with the girl. Although the teacher had driven the victim home from school on prior occasions, the victim's mother was unaware of this practice. The school principal later testified that teachers had no responsibility for students after the school day ended when not engaged in any official school activity. The teacher was later found guilty of felony child abuse under a state law that specified, "A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a household or family member who causes abuse to the child is guilty of a felony." Although the teacher was neither a parent nor a family member of the victim, the trial court found that he had "responsibility for the supervision" of the victim at the time of the alleged misconduct. The teacher appealed, claiming that he was not a person having "supervision of a child" after the end of the school day while driving a student home, and so he could not be guilty of violating the law. The state court of appeals (the highest court in Maryland) upheld the teacher's conviction. The court observed,

It is absurd to suggest that when a parent entrusts her child to a school that that parent does not impliedly consent to any reasonable assistance that a teacher may provide to assure the child's return home from school. In other words, it may be reasonably assumed by both parent and teacher that a parent impliedly consents to all reasonable measures taken by a teacher to assure the safe return of the child from school, including personally driving that child home. Once a teacher assumes the task of personally transporting a child from school to home with the implied consent of the parent, he or she also assumes the responsibility of supervising that child.

The court also noted that there was no "break" in the "teacher and student relationship" that existed between the teacher and the victim. It acknowledged that "such a break, depending on its length and nature, can dispel the teacher's duty to supervise." For example,

Had the teacher and [the victim] met, for example, after they had parted, at a location unconnected with the school, we might have reached a different result in this case. But that is not the case here. Indeed, the teacher's offer to give the child a ride home was made on school premises while the child was still under the supervision of the teacher. And the trip home began on school premises. From the moment he extended his invitation until the time he and [the victim] had sexual intercourse, she was never for long, if ever, either out of his sight or, for that matter, out under his influence or control. At bottom, a teacher-student relationship is based on the student's trust and acquiescence to her teacher's authority. At no time was there a temporal break in that relationship so that we might conclude the relationship inducing both trust and acquiescence to authority have at least temporally ended.

Application . Several states define reportable child abuse as abuse that is inflicted by a parent or other person "responsible for the supervision of a child." This case suggests that this definition can be met by a teacher even outside of school hours and off of school property so long as there has been no "break" in the teacher-student relationship. The court based its decision in part on a Missouri case in which a teacher was convicted of felony child abuse against a student after a school play when the teacher offered to drive the student home. The student accepted the ride and the teacher made a detour to his own home. Sexual contact occurred during the ride. The teacher challenged the evidence that there existed a custodial relationship between himself and the victims. The court described the scope of the student-teacher relationship as follows: "Teachers are undeniably charged with the care and custody of students. When parents send their child to school, they entrust the teacher with that child's well-being. A teacher's duty of care and custody extends beyond the confines on the schoolyard. By virtue of a teacher's position, he was able to exert influence upon [the victim], not only within the confines of the school, but outside of it as well." Anderson v. State, 2002 WL 31812670 (Md. 2002).

Legal Developments

Child Abuse Reporting

The Wisconsin Supreme Court ruled that a school principal who disclosed to an alleged child abuser the identities of the school employees who reported the abuse could be prosecuted.

Richard R. Hammar, Attorney, CPA

Bio

State: Wisconsin
Categories: Child Abuse, Child Abuse Reporting

• Key point. Persons who disclose the identities of those who report child abuse may be subject to criminal prosecution under the confidentiality provisions of the child abuse reporting laws of some states.

* The Wisconsin Supreme Court ruled that a school principal who disclosed to an alleged child abuser the identities of the school employees who reported the abuse could be prosecuted for violating the state child abuse reporting law's prohibition on the disclosure of the identities of reporters. A teacher noticed a mark on a child's forehead, and suspected it was the result of child abuse. The teacher removed the student from the classroom and took him to another teacher for evaluation. The teachers concluded that it was possible that the child had been abused, and they reported the abuse to civil authorities. A social worker arrived a short time later, spoke with the student, and determined that abuse was unlikely. The child's parents learned of the incident and were very upset at how it was handled. They met with their child's teacher, the school principal, and the superintendent of schools. The superintendent of schools later wrote the parents a letter in which he disclosed the identity of the two teachers who noticed and reported the suspected abuse. The superintendent was later charged with violating a state law prohibiting the disclosure of the identities of persons who report suspected child abuse. The statute specifies, "All reports made under this section … shall be confidential. Reports and records may be disclosed only to [the child's parents] …. Any person who violates this section … may be fined not more than $1,000 or imprisoned not more than 6 months or both."

The state supreme court ruled that the word "disclose" requires that the persons to whom the identity of a child abuse reporter is communicated must have been unaware of the reporter's identity at the time of the disclosure, and therefore the state has the burden of proving this beyond a reasonable doubt. However, the court rejected the superintendent's argument that he could not be guilty of violating the statute because he did not "intend" to disclose confidential information. The court concluded that the statute did not require a specific intent, and therefore the superintendent could be convicted for simply disclosing reporters' identities without any proof of intent. It concluded, "Here, the legislature, by establishing a confidentiality requirement, was clearly attempting to impose a high standard of care on those with access to records and reports of child abuse and neglect. In such a case, it is not unfathomable that the legislature would eliminate a mental state to enforce such a standard."

Application. The relevance of this case to church leaders is apparent. In many states, pastors are mandatory reporters of child abuse (see the May-June 2003 issue of Richard Hammar's Church Law & Tax Report newsletter for a review of the child abuse reporting laws of all 50 states). In many cases, church employees or volunteers share their suspicions of child abuse with the pastor who then may or may not report the allegations to the state. Pastors who report abuse that is disclosed to them by staff members, and who later reveal the identity of the "reporter" to the alleged offender, may be subject to criminal penalties. This is an important point for pastors to consider before disclosing the identity of a child abuse reporter to the person accused of abuse. State v. Polashek, 646 N.W.2d 330 (Wisc. 2002).

© Copyright 2003 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 c0403

Legal Developments

Child Abuse

A California court ruled that a 6-year-old child could not be sued by an adult male against whom she made false accusations of child abuse.

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Child Abuse Reporting

• Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a "qualified privilege," meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

A California court ruled that a 6-year-old child could not be sued by an adult male against whom she made false accusations of child abuse. It is every youth worker's worst fear—being falsely accused of molesting a child. What recourse does a person have in such a case? Can a child be sued who makes a knowingly false accusation of child abuse? That was the issue in a recent California case. A 6-year-old child made a false accusation of child abuse against an adult acquaintance. The child accused the adult of performing various sexually deviant acts upon her person. She made her initial accusations to her grandmother, and then to her parents. After her parents reported the accusations to the police, the child was interviewed by police officers. She repeated the accusations to the police. The child knew that the accusations she was making were false.

As a result of the false accusations, the alleged offender was arrested, booked and jailed. It was later determined that the child had fabricated her allegations, and the alleged offender was released and all charges were dropped. He sued the child for defamation. He conceded that the state child abuse reporting law gave mandatory and permissive child abuse reporters "limited" immunity from liability, but only if their reports were not "malicious" (knowingly false). Since the child in this case was a permissive reporter, and she knew her allegations of abuse were false, she was not protected from personal liability. A trial court dismissed the lawsuit, and a state appeals court upheld this disposition. The court concluded that children who are victims of abuse are neither mandatory nor permissive child abuse reporters, and so they have much broader protection from liability than what is provided under the child abuse reporting law.

The court concluded that the statements the child made to the police were "absolutely privileged," meaning they could not be the basis for liability even if she knew they were false. This is because of a state law that provides absolute immunity to any statement made in "an official proceeding authorized by law." The court noted that other courts in California had reached different conclusions as to whether allegations of child abuse made to the police are statements made in "an official proceeding authorized by law." It concluded, however, that they fit within this rule of immunity, and therefore the child could not be liable. It also concluded that the statements she made to her grandmother were also privileged, since they were directly related to the allegations that were later made to the police.

The court acknowledged that its decision prevented a wrongfully accused adult "from any relief or compensation for the grievous injury which we must assume resulted from intentionally false and malicious acts on the part of [the child]. We do so because we are obligated to honor the determination of the legislature that protection of one innocent segment of society warrants occasional injury to another."

Application. As this case illustrates, persons who are falsely accused of child molestation by a minor may have no legal recourse. This is a compelling reason why church leaders should implement appropriate policies and procedures to reduce the likelihood of innocent volunteer workers being falsely accused of child abuse. For a summary of preventive policies and procedures, see chapter 10 in Richard Hammar's book, Pastor, Church & Law (3rd ed. 2000). Smith v. M.D., 105 Cal.App.4th 1169 (Cal. App. 2003).

© Copyright 2001 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 m53 c0303

Legal Developments

Child Abuse Reporting

A California court ruled that a school counselor who reported suspected child abuse to civil authorities could not be sued for defamation and emotional distress.

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08 . 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A California court ruled that a school counselor who reported suspected child abuse to civil authorities could not be sued for defamation and emotional distress as a result of his disclosure to the victim's mother that he had reported the abuse.

The victim's mother informed the school counselor that her son had been molested by another student. The counselor reported the abuse to civil authorities, and then informed the victim's mother that he had done so. The molester's parents sued the counselor and the school, claiming that the counselor unlawfully disclosed the report to the victim's mother, a person "not authorized to receive the report." A trial court dismissed the lawsuit, and a state appeals court affirmed this result.

The court noted that a school counselor was a mandatory child abuse reporter under state law; that he was required to report the abuse reported to him by the victim's mother; and, that he had immunity from liability under the state child abuse reporting law, and this immunity prevented the molester's parents from suing him for informing the victim's mother that he had reported the alleged abuse.

The court concluded, "In exchange for imposing a mandatory duty to report instances of suspected child abuse, the law provides these individuals with absolute immunity from civil liability for making such reports." The child abuse reporting law specifies that no mandatory reporter who reports a known or suspected instance of child abuse "shall be civilly or criminally liable for any report required or authorized" by law. This immunity from liability "protects both initial and subsequent communications related to the reporting of suspected child abuse. Here [the counselor's] disclosure of the report was a subsequent communication, and she is absolutely immune from liability." The school was also immune, since it could not be liable if the counselor was not.

Application . Pastors often are presented with allegations of child abuse. This case suggests that pastors who are mandatory reporters cannot be sued by the alleged abuser if they inform a victim's parents that they have reported the abuse as required by law. Of course, there is no guaranty that the courts in other states will follow this ruling, so pastors should check with an attorney before informing victims' parents that they have reported allegations of child abuse. However, this case is one of the only cases that addresses this issue, and so it may be given special consideration by courts in other jurisdictions. Shryer v. Carmel Unified School District, 2002 WL 32556 (Cal. App. 2002).

Legal Developments

Child Abuse Reporting

A New Jersey court ruled that a woman could not sue her pastor and church for failing to report to civil authorities her sexual abuse that she had disclosed to them when she was a minor.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08 . 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A New Jersey court ruled that a woman could not sue her pastor and church for failing to report to civil authorities her sexual abuse that she had disclosed to them when she was a minor.

A 13-year-old girl ("Amy") was sexually abused by her father over a one-year period. She did not disclose the abuse to anyone at the time because she was afraid of him. She later testified that her father "absolutely petrified me, I was scared to death of him." She also claimed that her father "threatened my life to maintain my silence of his sexual abuse of me." When she was 16, Amy began to disclose the abuse to various people in her life. She disclosed the abuse to the principal of the church-operated school she attended, who was also an ordained minister. The principal told Amy that the abuse had happened too far in the past for anyone to do anything about it and "sometimes it's just best to leave things in the past." Amy understood this to mean she was to stop talking about the abuse. Several years later Amy met with an attorney to discuss her prior abuse, and the attorney urged her to meet with the local prosecutor, which she did. This led to the prosecution and conviction of her father for child molestation. He was sentenced to ten years in prison. It was not until her father had been convicted and sentenced to prison that Amy felt free of his threats. She again met with her attorney, and decided to sue her church and pastor for failing to report the abuse to civil authorities. Specifically, she alleged that her church and pastor refrained from reporting the abuse due to "fear of scandal to the church" and because the church protected child abusers who were respected members of the church family. A trial court dismissed all of Amy's claims against her church and pastor, and Amy appealed. An appeals court ruled that Amy's lawsuit had to be dismissed because it was filed after the deadline imposed by the statute of limitations. Amy argued that the statute of limitations should be "extended" because of what she called "religious duress." By this she meant that her church taught that it was wrong to criticize or take action against members of the clergy or the church, and that sexual abuse victims should remain silent, refrain from making any public accusations, and avoid any contact with civil authorities in search of justice. The court rejected Amy's "religious duress" theory and refused to extend the statute of limitations. It noted that "duress may take the form of moral compulsion or psychological pressure," yet "even moral compulsion or psychological pressure are not wrongful unless they are so oppressive under given circumstances as to constrain one to do what his free will would refuse." This test was not met.

Application. While Amy was not allowed to sue her pastor or church for failing to report her child abuse, this was because of her failure to file a lawsuit by the deadline specified by the statute of limitations. In other words, the court dismissed Amy's claims on technical grounds. It is possible that the court would have accepted Amy's claims had she filed her lawsuit on time. The potential civil liability of ministers for failing to report child abuse is an issue with which church leaders should be familiar. Smith v. Estate of Kelly, 778 A.2d 1162 (N.J. 2001).

Legal Developments

Child Abuse Reporting

The Missouri Supreme Court refused to rule that the first amendment guaranty of religious freedom prohibits states from applying child abuse reporting laws to ministers who learn of incidents of child abuse.

Richard R. Hammar, Attorney, CPA

Bio

State: Missouri
Categories: Child Abuse, Child Abuse Reporting

Two pastors of a local church were served with subpoenas by a local prosecutor. The subpoenas ordered the pastors to appear at the prosecutor's office and to bring "any and all relevant materials, including personal knowledge" regarding a criminal defendant who attended their church. The defendant was being prosecuted for sexually molesting his stepdaughters, and the prosecutor issued the subpoenas in order to obtain information about a confession that the defendant allegedly made to the two pastors.

The pastors asked the court to "quash" the subpoenas on the ground that the subpoenas required them to disclose a privileged communication made to them in their capacity as ministers providing spiritual advice and counseling. They claimed that compelling them to disclose this information would violate their first amendment right to freely exercise their religion.

The prosecutor insisted that the pastors were mistaken. He noted that the Missouri child abuse reporting law contains the following provision: "Any legally recognized privileged communication, except that between attorney and client, shall not apply to situations involving known or suspected child abuse or neglect and shall not constitute grounds for failure to report … to cooperate with the division … or to give or accept evidence in any judicial proceeding relating to child abuse." This provision, the prosecutor argued, nullified the clergy-penitent privilege in the context of child abuse reporting.

A trial court agreed with the pastors, and quashed the subpoenas on the ground that they violated the first amendment. The prosecutor appealed this ruling to the state supreme court. The supreme court concluded that it did not have to address the constitutional claim made by the pastors since it could dispose of the case on "nonconstitutional" grounds. Specifically, it noted that the state law under which the subpoenas had been issued only authorized the inspection of books and records, and not conversations or personal recollections. Therefore, the court refused to address the question of whether the child abuse reporting law "abrogates the minister-communicant privilege in situations involving child abuse or neglect" as the prosecutor insisted, or "violates the pastors' right to free exercise of religion."

Application. Several states have child abuse reporting laws containing the following contradictory provisions: (1) ministers are not included within the definition of a "mandatory reporter," and so they are permitted to report incidents of child abuse to civil authorities but they are not legally required to do so; and (2) the law specifies that "legally recognized privileged communications" (including the clergy-penitent privilege) do not excuse a failure to report child abuse. Why are these provisions contradictory? Because if ministers are not mandatory child abuse reporters then why does the statute say that the clergy-penitent privilege does not excuse the reporting of child abuse? There is only one logical way to resolve this contradiction. Ministers in these states are not mandatory reporters in their role as ministers, but they may be mandatory reporters because of some other status (e.g., a professional counselor, teacher, school administrator), and while acting in that other status they cannot excuse a failure to report child abuse on the basis of the clergy-penitent privilege.

Let's illustrate this with an example. Assume that ministers are not mandatory reporters in a particular state, and that the state child abuse reporting law specifies that the clergy-penitent privilege does not excuse a failure to report abuse. Pastor Ken is a full-time pastor of a church who learns of child abuse during a conversation protected by the clergy-penitent privilege. While the child abuse reporting law provides that the clergy-penitent privilege does not excuse a failure to report child abuse, the fact remains that Pastor Ken is not a mandatory child abuse reporter and therefore is not required to report the abuse. Now, let's assume the same facts except that Pastor Ken is also a licensed professional counselor. If professional counselors are mandatory child abuse reporters, and Pastor Ken was acting in his role as a professional counselor when he learned of the child abuse, then he would be legally required to report the abuse despite the fact that the conversation was protected by the clergy-penitent privilege. This may not be the interpretation that the courts will give to these contradictory provisions, but it certainly is the most reasonable and likely interpretation. Unfortunately, no court has ever addressed this issue.

There is one other possible explanation for these contradictory provisions. In some states, such as Missouri, ministers were included on the list of mandatory child abuse reporters in the past. It made sense for the statute to clarify that the clergy-penitent privilege would not excuse a failure to report abuse. However, the legislature later removed ministers from the list of mandatory reporters, but failed to delete the provision barring the clergy-penitent privilege from excusing a failure to report abuse. In other words, the contradictory provisions were the result of legislative oversight. If this is the case, then this supports the interpretation of these provisions set forth above. State v. Eisenhouer, 40 S.W.3d 916 (Mo. 2001).

Legal Developments

Child Abuse Reporting

A Texas court ruled that a pastor was legally required to report to civil authorities the confession of a counselee that he had molested his three children.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Child Abuse, Child Abuse Reporting

Key point 4-08. 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. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Texas court ruled that a pastor was legally required to report to civil authorities the confession of a counselee that he had molested his three children, and rejected the counselee's claim that the confession should not have been used in court since it was protected by the clergy-penitent privilege.

A young girl called a Methodist church and disclosed that she and her brother and sister were being sexually molested by their father ("Carl"). Three days later, Carl called the church and made an appointment to talk with the pastor. When he arrived at the church, the senior pastor told him that his daughter had informed him that she (and her sister and brother) had been sexually molested by him. The pastor told Carl that he had called Child Protective Services (CPS) and reported the assaults. The pastor also told Carl that they were going to notify the police. Carl told the pastor, an elder in the church, and a business administrator that he did "not remember doing any such thing." Carl was charged with several counts of child molestation. He claimed that he had gone to the church to talk about marital problems, but was confronted by the pastor, elder, and administrator who repeatedly exhorted him to confess to the allegations of child abuse. After nearly an hour, Carl claimed that he "broke down" and said, "Yeah, I did it." He insisted that he said this to the church officials "to get them off my back." He testified that the church elder had accused him of being demon possessed, and that all three church officials informed him that God could not forgive him until he confessed and that he would be given a "lighter sentence" if he confessed.

Carl was convicted of molesting each of the three children, and was sentenced to 75 years in prison for each child. He appealed, insisting that the trial court erred by allowing the prosecution to inform the jury about his confession to the church officials. He claimed that the confession was privileged, and that it had resulted from deceptive promises of leniency and spiritual cleansing.

The Texas clergy-penitent privilege (Rule 505 of the Texas Rules of Evidence) provides, "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser." The state asserted that the clergy-communication privilege cannot be used to exclude any evidence obtained in these child abuse cases, citing sections 261.101 and 261.202 of the Texas Family Code. Section 261.101 states, "A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter …. The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including … a member of the clergy." Section 261.202 provides, "In a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client."

The court concluded that these provisions "create an exception" to the clergy-penitent privilege. It observed,

Sections 261.101 and 261.202 create an exception to [the clergy-penitent privilege]. Statutory interpretation requires that we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. To that end, we must focus our attention on the statute's text and attempt to discern the fair, objective meaning of that text at the time of its enactment …. The exceptions to the privilege in the Family Code are clear and unambiguous. We hold that section 261.202 clearly makes an exception to [the clergy-penitent privilege] in this case …. We hold that the trial court did not err in denying Carl's claim of clergy-communication privilege because section 261.202 excepts the privilege in child abuse cases such as this.

The court also referred to a legal treatise which concluded, "First, the Family Code explicitly provides that a claim of privilege, other than the attorney-client privilege, may not be interposed in proceedings regarding the abuse or neglect of a child. An Attorney General Opinion resolves the seeming conflict between the Family Code and [the clergy-penitent privilege] in favor of the Family Code [citing Op. Tex. Atty. Gen. No. JM-342 (1985)]. Since the rules of evidence are subordinate to legislative enactments, the Attorney General's interpretation is doubtlessly correct." S. Goode, Texas Practice: A Guide to the Texas Rules of Evidence: Civil and Criminal § 505.1(2d ed. 1993).

The court also rejected Carl's argument that his "confession" to the church officials should not have been used since it was obtained through "deception." Specifically, he claimed that the church elder told him that if he confessed, he would "probably just have only five years instead of fifteen years" and his confession would "cleanse him." Carl insisted that these deceptive promises induced him to involuntarily confess. The court did not agree. It noted that the elder's advice regarding the likely prison sentence was not a "promise," but rather was "attempted legal advice by a layman, which turned out to be incorrect." Further, the elder's advice about "cleansing" was "not of the type likely to make Carl believe that his condition would be bettered by making a confession, even a false confession." Bordman v. State, 56 S.W.3d 63 (Tex. App. 2001).

Legal Developments

False Accusations of Child Abuse

Can reporters of child abuse be sued if the alleged abuse did not actually occur?

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Child Abuse Reporting

• Can one who reports a suspected case of child abuse be sued by the alleged offender if the report later proves to have been false? That was the issue before a California state appeals court. A two-month old child suffering from a congenital defect (arteriovenous malformation of the brain) was taken to a local hospital, and then transferred to a regional children's hospital. A doctor employed by the children's hospital failed to recognize that the infant was suffering from a congenital defect, and instead diagnosed the child as suffering from injuries of a nonaccidental nature which could only have resulted from a violent shaking or a fall.

Because of the suspicion of child abuse, the doctor filed a report with the state. The infant died from the condition four days later, and his remains were transferred to the coroner for an autopsy. The autopsy described the cause of death as a "subdural hematoma" caused by a blunt injury to the side of the head. As a result of the doctor's report and the coroner's findings, the district attorney recommended that dependency proceedings be commenced with respect to another child in the same home.

Based on this recommendation, the police removed the other child from her parents' custody, and dependency proceedings were begun. The parents hired an attorney and their own medical expert to review the autopsy and the infant's remains to determine the true cause of death. This medical expert was able to convince the coroner that the true cause of death was the congenital defect. The coroner amended his autopsy report, and the parents were cleared of all charges. The parents then sued the doctor on a number of grounds, including medical negligence, infliction of emotional distress, and civil rights violations.

They also alleged that the doctor's false report caused the district attorney to initiate dependency proceedings, depriving them of their constitutional right to family unity undisturbed by unwarranted governmental interference. The doctor asked the court to dismiss the case no the ground that state law grants "immunity" to reporters of child abuse. The trial court agreed with the doctor's defense, and the parents appealed. The parents argued that state law grants immunity only to reporters who have a "reasonable suspicion" of child abuse, and not to reports that are made negligently or recklessly. The appeals court rejected the parents' claim, noting that state law granted absolute immunity to those reporters, including doctors, under a mandatory duty to report child abuse.

The court emphasized that mandatory reporters were given absolute immunity in order to encourage them to report without fear of being sued if their reports turned out to be false. The court acknowledged that its decision denied the parents "from any relief or compensation for the grievous injury" that they sustained. It concluded: "We do so because we are obligated to honor the determination of the legislature that protection of one innocent segment of society warrants occasional injury to another. The mute and powerless victims of child abuse have long suffered at the hands of their tormentors.

Society's protective voice, the legislature has found, has been silenced by the fear of retaliation. The protection of the young victims, the legislature has determined, requires that uncompensated injury occasionally result to an adult. In this war on child abuse the legislature selected absolute immunity as part of its arsenal …. The tragedy of war, whether it be against child abuse or between nations, is that the nature of its drastic measures is such as to inflict injury on some innocents while producing the general benefit of a desired end result."

Few states, like California, grant absolute immunity to mandatory reporters of child abuse. Most states provide only limited immunity—meaning that reporters can be sued only if they act "maliciously" in filing a knowingly false report. Even this limited form of immunity is quite extensive, and is intended to further the governmental objective of encouraging persons to report suspected cases of abuse without fear of being sued if their reports prove to have been false. Thomas v. Chadwick, 274 Cal. Rptr. 128 (Cal. App. 4 Dist. 1990).

Legal Developments

Operation of a Childcare Facility, Even By a Church, Is a Secular Activity

A federal district court in Virginia held that state licensing of church-run childcare facilities to

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Child Abuse Reporting, Freedom of Religion, Schools

A federal district court in Virginia held that state licensing of church-run childcare facilities to certify compliance with health, safety and welfare standards would not burden a church's free exercise of religion.

The court concluded that "the operation of a childcare facility, even by a church, is a secular activity not entitling it to free exercise protection." Even if such as activity were deemed to be religious, the state's licensing requirements would be justified on the basis of the state's compelling interest in protecting the health and safety of small children.

The court also rejected the contention that church-run childcare facilities should be exempted from the law's financial disclosure requirements, prohibition of corporal punishment, child abuse reporting requirement, and program content requirements. Forest Hills Early Learning Center, Inc. v. Lukhard, 661 F. Supp. 301 (E.D. Va. 1987).