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

Evaluating Allegations of Child Abuse

A recent case will be of use to churches.

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Child Abuse

Church Law and Tax 1997-09-01

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• Key point. In evaluating whether an allegation of child abuse is legitimate, church leaders can benefit from the approach taken by the civil courts in criminal cases.

A Georgia court upheld the conviction of a man for child abuse, and its decision will be useful to church leaders in evaluating allegations of child abuse. Church leaders occasionally are confronted with an allegation of child abuse. For example, a parent claims that a youth worker molested her minor child. The alleged offender often denies any wrongdoing, and this places church leaders in a difficult position of having to determine the truthfulness of the accusation. The civil courts wrestle with the same issue in criminal cases involving the guilt or innocence of persons accused of child abuse. A recent case provides some helpful guidance. A 7—year—old girl alleged that a man molested her. The man was prosecuted for criminal child abuse, and he insisted at trial that he was innocent and that the girl had “made up” the allegations. A trial court convicted the man, and a state appeals court upheld this verdict. The court concluded that the girl’s testimony was reliable on the basis of the following ten factors:

(1) the conditions under which the statement was made; (2) the statement’s spontaneity; (3) the age of the child; (4) the child’s demeanor; (5) the child’s physical and mental condition; (6) the presence or absence of any threats or promises of benefit; (7) any involvement of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or others either before or during the giving of the statement; and (10) the consistency between repeated out—of—court statements.

Application. The court’s checklist of factors to consider in evaluating the reliability of a child’s accusations or molestation will be helpful to church leaders in responding to such accusations. Of course, if there is reasonable cause to believe that a child has been abused, then in many states a pastor or other church leader who learns of the allegation will be under a legal duty to report it to civil authorities. Heard v. State, 471 S.E.2d 22 (Ga. App. 1996). [Failure to Report Child Abuse]

© Copyright 1997, 1998 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 c0597

Legal Developments

Government Officials and Religious Oaths

Officials may not coerce citizens into engaging in religious exercises.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Child Abuse

Church Law and Tax 1997-05-01

Evidence

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Government officials are prohibited by the first amendment “nonestablishment of religion” clause to coerce citizens into making religious oaths or engaging in religious exercises.

A federal appeals court ruled that a federal prosecutor may have violated the constitutional rights of a child abuse suspect by agreeing to dismiss all charges against her if she swore to her innocence in a church with her hand on a Bible. The facts of this case are very unusual, but compelling. Prosecutors, as well as church officials, often agonize over child abuse allegations because of a lack of proof. The accused may offer a convincing denial of the charges, though some evidence of guilt exists. A prosecutor in New York came up with a novel idea-dismissing child abuse charges against a woman if she swore to her innocence in her church with her hand on a Bible. The woman’s attorney agreed to this unusual arrangement, and on the appointed day the woman, her attorney, and the prosecutor met in the woman’s Roman Catholic church for the ceremony. The prosecutor assured the woman that she did not have to go through with the ceremony, but that if she did, all charges against her would be dropped. The woman agreed to proceed, placed her hand on a Bible, and stated: “I swear on this Bible that I did not have any form of sexual contact with my son on any occasion, so help me God.” All charges against the woman were dropped later that day. A few months later, the woman sued the prosecutor, claiming that his offer constituted a “coerced religious practice” in violation of the first amendment’s nonestablishment of religion clause. A federal court appeals court refused to dismiss the case and allowed it to proceed to trial. In conclusion, while such a ceremony would be a permissible (though not foolproof) method for a church to use in determining guilt, it is not appropriate for government officials to do so. Doe v. Phillips, 81 F.3d 1204 (2nd Cir. 1996). [The Establishment Clause]

Legal Developments

Priest Sued for Failure to Report Child Abuse

Court rules that man is not legally responsible for damages.

Richard R. Hammar, Attorney, CPA

Bio

State: Iowa
Categories: Child Abuse

Church Law and Tax 1997-03-01

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Persons who are mandatory reporters of child abuse under state law may be civilly liable for an abused child’s injuries if they fail to report known or reasonably suspected abuse.

A New York court ruled that a teacher could be sued by a child who was molested by an uncle because she failed to report the abuse to civil authorities. An 8—year—old girl lived with her parents in New York. She began spending portions of her summer vacation at the home of her aunt and uncle in New Jersey. When the girl was 12 years old, she told two of her girlfriends that she had been sexually abused by her uncle when staying at his home during two previous summers. Encouraged by her girlfriends to tell an adult about the abuse, the victim decided to tell her sixth grade teacher because she felt she could trust her. The girlfriends interrupted the teacher’s class and asked the teacher to speak with the victim in the hallway. The victim, who was crying uncontrollably, and her friends then told the teacher of the abuse. The teacher told the victim there was “nothing she could do” because the uncle was in New Jersey. The victim pleaded with her teacher not to tell her mother, who also taught at the school. The teacher made no report of the abuse, and the victim continued to visit her aunt and uncle in New Jersey. A year later, she told a school guidance counselor about the sexual conduct of her uncle. The guidance counselor told the victim’s mother and a report was filed. The victim’s parents sued the school, seeking to recover damages for the psychological and emotional trauma the daughter suffered after she informed her teacher of the abuse because of the teacher’s failure to report it. A trial court dismissed the lawsuit, and the parents appealed.

A state appeals court ruled that the parents could sue the school as a result of the teacher’s failure to report the abuse. The court noted that teachers are mandatory reporters of child abuse under state law. The school insisted that the teacher was not required to report the abuse since the incidents in question did not constitute child abuse under the statute. The school asserted that the statute requires that the child be abused by a parent or other person “legally responsible” for his or her care, and that because the victim was not continuously or regularly in the same household as the uncle he could not be a “person legally responsible” for her care and therefore the teacher had no duty to report the abuse. The court rejected this reasoning. It agreed that under New York law child abuse is defined to include only those acts of abuse that are committed by a parent or other person responsible for a child’s care. But it pointed out that the statute defines “person responsible for a child’s care” to include “any other person responsible for the child’s care at the relevant time.” The court concluded that the uncle clearly satisfied this definition since the victim visited with her uncle in New Jersey on a regular basis during school holidays and vacations and her parents were not with her on those occasions. Further, the teacher was aware of these trips, and so she had sufficient information to conclude that reportable abuse had occurred.

Most importantly, the court concluded that the school could be sued by the victim’s parents for the molestation that occurred following the teacher’s failure to report: “We conclude that a mandated reporter is obligated to report suspected cases of child sexual abuse based upon facts and circumstances within the knowledge of the reporter at the time the abuse is suspected and may be held liable for a breach of that duty even though it might ultimately be determined that the abuse was not committed or allowed to have been committed by a person legally responsible for the child.” In other words, the school’s civil liability would not be affected by the fact that the uncle was not found guilty of child abuse. As long as reasonable suspicion of reportable abuse existed, and a mandatory reporter failed to report it, civil liability arises.

The court agreed with the school that there was no “common law duty” to report the abuse. It noted that schools are “under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries [directly] related to the absence of adequate supervision.” However, in this case the acts of abuse “did not occur while [the child] was in the custody and control of school officials.” Rather, the acts of abuse “occurred in another state during school vacations” and were “well beyond the supervisory responsibility of the school.” As a result, the school had no “common law duty” to report the abuse to anyone.

It is very important for church leaders to be familiar with this case for the following reasons: First, and most significantly, the court ruled that a school could be legally responsible for the molestation of a child occurring after a teacher learns of the abuse or has reasonable suspicion that it occurred. In other words, there is a significant risk if a mandatory reporter fails to report child abuse. This is an important point for church leaders to keep in mind when evaluating whether or not to report suspected abuse. In New York, and in a number of other states (as noted in previous issues of this newsletter), mandatory reporters and their employer may be civilly liable for failing to report abuse. Second, the court gave a broad interpretation to the term “person responsible for a child’s care.” In many states, reportable child abuse must be inflicted by a parent or person responsible for a child’s care. According to this court, this definition includes a relative who a child visits on a periodic basis. Third, the court rejected the parents’ claim that the teacher had a “common law duty” to report the abuse. This is a significant conclusion since it means that school personnel who are not mandatory reporters of abuse are under no “common law duty” to report. This conclusion will be helpful to persons who are not mandatory reporters of abuse but who are sued for failing to report on the basis of a “common law duty.” Kimberly S.M. v. Bradford Central School, 649 N.Y.S.2d 588 (A.D. 1966). [Failure to Report Child Abuse]

Legal Developments

Mandatory Reporters and the Clergy-Penitent Privilege

Are confessions of abuse protected?

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse

Church Law and Tax 1997-03-01

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Ministers who enage in pastoral counseling are not necessarily subject to a state law that makes “counselors” mandatory reporters.

• Key point. Ministers who are not mandatory reporters of child abuse, and who do not report known or suspected abuse, are not necessarily liable for a minor’s continued abuse.

The Iowa Supreme Court ruled that a priest was not legally responsible for damages suffered by a victim of child abuse as a result of his decision not to report the abuse to civil authorities. A child (the victim) and her parents met with their parish priest on a number of occasions for family counseling. The priest was not a licensed counselor. The victim did not tell the priest that her father had sexually abused her but did tell him that he had “hurt” her. The physical and sexual abuse of the victim stopped when her father left home when she was in eighth grade. The victim attempted suicide a month later. The victim later sued her former priest and church. She claimed that the priest failed to report her abuse to the civil authorities, and that as a result the abuse continued and her injuries were aggravated. She conceded that the priest was not aware that abuse had occurred, but she insisted that he should have been aware of the abuse based on her statement to him that her father had “hurt her”. The victim also sued her former church, claiming that it was responsible for the priest’s failure to report the abuse. She also alleged that the church negligently failed to provide training in child abuse detection for its pastor and the teachers at the church—operated school the victim attended. A trial court dismissed the claim against the priest on the ground that he was not a mandatory child abuse reporter under state law and as a result had no duty to report the abuse even if he suspected it. The court also dismissed the claim against the church. The victim appealed. The state supreme court agreed with the trial court’s decision. With regard to the victim’s claims against the priest, the court observed:

The [priest] met with the family on several occasions for purposes of assisting them in their familial relationship. It appears, however, that his role in these discussions was that of a clergyman counseling the family to work out their differences in accordance with the teachings of the church. We agree with the conclusions of the district court that this involvement in … familial conflicts did not render him a mandatory reporter of suspected child abuse under [state law]. To the extent that [the] statute makes a “counselor” a mandatory reporter of child abuse, this is limited to a reasonable belief actually formed by the counselor “in the scope of professional practice.” [The priest’s] professional practice, as it related to the [victim’s] family, was that of clergyman ….

The legislature did not include members of the clergy among those that are required to report child abuse under [the statute]. Because it is common knowledge that clergymen engage in activities within a religious context that might unearth abusive situations, that omission must be deemed to have been a conscious choice to exclude this profession from the reporting requirements of the statute. The district court was correct in concluding that [the priest] had no statutory duty to report child abuse visited upon [the victim].

The court also rejected the victim’s allegation that the church was negligent in failing to properly train the pastor or its teachers in the detection and reporting of child abuse. It observed:

When [the priest and teachers] were selected by [the church] they were each college trained and professionally licensed in their respective fields. There is nothing in the record … that would permit a finding that [the church] antecedently had reason to believe that these individuals were not properly trained in the requirements of their professional undertakings or, in particular, that there was any risk associated with the manner in which they would perceive situations involving child abuse. There is thus no liability on [the church’s] part for a failure to train these persons or to adopt special procedures dealing with the unperceived risk.

This case is significant for the following reasons: First, it demonstrates the members of the clergy are not necessarily mandatory child abuse reporters under a state law that makes “counselors” mandatory reporters. This is an important interpretation that will be useful to ministers in other states. Of course, other states may interpret the term “counselor” differently, and may include ministers. The Iowa Supreme Court’s ruling will be helpful in contending for a more narrow definition. In the final analysis, as has often been stated in this newsletter, ministers should be aggressive in reporting known or reasonably suspected incidents of child abuse whether or not they are mandatory reporters under state law. This is especially true in the case of young children who are powerless to defend themselves or seek help. Second, the court concluded that ministers who are not mandatory reporters of child abuse under state law cannot be sued for failing to report. And third, the court refused to find a church liable on the basis of its allegedly negligent failure to train its professional staff (a minister and teachers) in the detection of child abuse. Wilson v. Darr, 553 N.W.2d 579 (Iowa 1996). [Failure to Report Child Abuse]

Legal Developments

Reliability of Children’s Claims of Molestation

How is the reliability of children’s statements determined?

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Child Abuse

Church Law and Tax1994-11-01Recent Developments

Sexual Misconduct by Clergy and Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Some courts have listed factors to consider in evaluating the reliability of a child’s accusation of molestation. These factors may be helpful to churches in evaluating allegations of molestation.

• A Georgia appeals court listed several factors to consider in evaluating the reliability of a child’s claim that he was molested. The factors may be useful to churches in evaluating similar claims. Here they are: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same, and the nature of the child’s statement and type of language used; and (10) the consistency between repeated out-of-court statements by the child.

The court concluded that “[o]ur review of the record, including the transcript of the interview of the victim by the social service specialist, indicates that the victim’s statements, introduced through hearsay at trial, were made originally by the victim in a spontaneous manner without apparent coaching. Although there was evidence presented that the victim had originally named other possible perpetrators, her later statements consistently named the defendant. We find that a sufficient showing of indicia of reliability … was established as to all out-of-court statements made by the victim and testified to by witnesses at trial.” White v. State, 440 S.E.2d 68 (Ga. App. 1994).

Mandatory Reporters and the Clergy-Penitent Privilege

What to do when a confession of child abuse is disclosed confidentially.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Child Abuse, Confidential and Privileged Communications

Church Law and Tax 1994-09-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: In some states the clergy-penitent privilege does not protect ministers from the legal duty to report child abuse. However, the privilege still may protect ministers from having to testify in a civil lawsuit arising out of the abuse.

• A federal court in Utah ruled that a church official did not have to disclose in a civil trial information shared with him by a father who was guilty of abusing his adopted child. In many states ministers are mandatory reporters of child abuse. This means that they can be criminally prosecuted for failing to report known or reasonably suspected incidents of abuse. In most of these states the clergy-penitent privilege does not excuse ministers from their duty to report. As a result, ministers who are mandatory reporters under state law have a duty to report incidents of child abuse even if they learn of them in the context of a confidential counseling session. A federal court in Utah recently addressed a related question—does the clergy-penitent privilege protect a minister from testifying in a civil lawsuit brought by an adult survivor of child abuse against her adoptive father? The facts of this case are simple. An adult woman sued her adoptive father, alleging that he had sexually abused her throughout her childhood. As a result of his conduct, the father sought advice from a bishop of his church. The church later convened a disciplinary hearing at which the father was excommunicated. The daughter sought information regarding any communications her father had with the bishop regarding his conduct. The bishop opposed this request on the ground that the information sought by the daughter was protected from disclosure by the clergy-penitent privilege. The daughter insisted that any communications made by her father to the bishop were not privileged since they were not made in the context of a confession. The court agreed with the bishop that the statements made by the father were privileged. It noted that a federal court applies the clergy-penitent privilege available under state law, and that the Utah clergy-penitent privilege provides: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of the discipline enjoined by the church to which he belongs.” The court concluded that the bishop was a “clergyman,” and that the father’s statements to the bishop had been made in the course of “discipline.” The court rejected the daughter’s claim that the clergy-penitent privilege applies only to confessions. It reviewed several court rulings rejecting this narrow interpretation of the privilege, and then observed: “From these authorities it can be seen that the modern trend of cases construing the scope of the clergy privilege is to read it more broadly than merely being applicable to ‘confessions’ in the penitential sense, but to apply it to communications for religious counseling.” It further noted that “[i]n this case, it seems appropriate to use the term ‘confession’ to mean a confidential communication within the doctrine of the church involved.” Accordingly, the court rejected the daughter’s attempt to force the bishop to disclose in court the content of his conversation with her father. The father’s communications with his bishop were privileged since “they were for the religious purpose of receiving church counseling and ecclesiastical advice.”

Does this mean that the clergy-penitent privilege also excuses ministers from a duty to report child abuse to civil authorities? The court refused to address this related question, noting simply that “this court has no reason to develop this issue.” The court also noted that the father’s wife was present during his conversation with the bishop. However, this did not affect the court’s conclusion that the communications between the father and the bishop were privileged. It simply noted that “the parties have not raised any issue as to the defendant’s wife being present during one communication and the court will not [on its own initiative] consider the circumstances as affecting this case.” Finally, the court noted that the bishop had discussed the father’s statements regarding his conduct with another church official. The court concluded that this did not affect the privileged nature of the original conversation. Quite to the contrary, the court concluded that “[t]he intra-faith communications from one ecclesiastical officer to another for the purpose of carrying out church discipline are also protected.” The court continued:

It is appreciated that the communication in this case is different than one that involves a declaration by the church member to an assemblage of church officials. In this case, the communication was passed vertically from one religious authority up to another within the church hierarchy. Such communication was necessary as a part of the church sanction process and in carrying out church discipline. The need for the privilege to follow the communication in such circumstances is obvious and appropriate. Otherwise, the privilege would be destroyed and the confidence abridged. Therefore, the repeating of the defendant’s statement and its communication to superior religious authorities must be deemed cloaked with confidentiality and privileged from forced disclosure.

This last observation is an important one. Associate and youth pastors sometimes feel compelled to disclose privileged communications with a senior minister. Or, a senior minister feels compelled to disclose a privileged communication with a denominational official. According to this court, such disclosures do not affect the privileged status of the original communication. Scott v. Hammock, 133 F.R.D. 610 (D. Utah 1990). [PCL4H, PCL3G6h]

© Copyright 1994, 1998 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: m33 m10 c5094

Legal Developments

Reporting Child Abuse

Can a reporter be sued if the abuse did not actually occur?

Richard R. Hammar, Attorney, CPA

Bio

State: Arizona
Categories: Child Abuse

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

Richard R. Hammar, J.D., LL.M., CPA

• Can a person who reports suspected child abuse be sued if it is later determined that the abuse did not actually occur? That was the issue before an Arizona appeals court. A mother began taking her 5-year-old son to a counselor. The mother later informed the counselor that her 3-year-old daughter had described being molested by her father. Based on this information, the counselor reported the alleged child abuse to state authorities. The father was indicted on two felony counts, but the charges were later dismissed. The father then sued the counselor for actual and punitive damages. A trial court dismissed the lawsuit, and the father appealed. A state appeals court agreed with the trial court that the counselor could not be sued for making a report of child abuse. It noted that counselors are “mandatory reporters” under Arizona law, meaning that they have a legal obligation to report child abuse if they have “reasonable grounds” that it has occurred. The court concluded that the counselor did have reasonable grounds that abuse had occurred, based on the conversation with the child’s mother, even though the counselor had not conducted an independent investigation. The court observed that the child abuse reporting statute “does not contemplate that a person must fully investigate the suspected abuse before making a report,” and that “we do not believe that our legislature intended persons with knowledge of alleged child abuse to conduct their own investigation to decide whether enough evidence of abuse exists to warrant a report.” The court also noted that the child abuse reporting statute specifies that a person who has reasonable grounds to make a report “shall be immune from any civil or criminal liability” unless the person acts with “malice”. The state child abuse reporting statute defines “malice” as “a wish to vex, annoy or injure another person, or an intent to do a wrongful act.” The court concluded that the counselor in this case was not guilty of malice, and accordingly she was entitled to immunity from legal liability for filing her report. It noted that there was no evidence that the counselor’s report had been motivated by any malice toward the father or that the counselor “bore any ill will toward the father.” This case is relevant to church workers. Most if not all state child abuse reporting laws provide a “qualified immunity” to persons with reasonable grounds for reporting abuse. This means that the reporter cannot be legally liable for reporting the abuse so long as he or she did not act maliciously. This is a very difficult standard to prove. This case suggests that reasonable grounds to report child abuse may exist solely on the basis of one other person’s (in this case, the mother’s) disclosure of an incident of abuse. L.A.R. v. Ludwig, 821 P.2d 291 (Ariz. App. 1991).

Mandatory Reporters and the Clergy-Penitent Privilege

Can confessions of child abuse be privileged conversations?

Richard R. Hammar, Attorney, CPA

Bio

State: Alaska
Categories: Child Abuse, Confidential and Privileged Communications

Church Law and Tax1992-11-01Recent Developments

Taxation – Church Property

Richard R. Hammar, J.D., LL.M., CPA

• Does the “clergy-penitent” privilege exempt ministers from the obligation to report child abuse? That was the difficult question addressed by an Alaska appeals court. A man sexually molested a 4-year-old child who had been placed in his care for an evening. The molester sought help through counseling with a minister. After learning of the individual’s sexual relations with a child, the minister reported the incident to the authorities. State troopers investigated the report, and the molester was prosecuted. The molester claimed that the troopers’ investigation, and the subsequent prosecution, were based entirely on information he provided to his minister in the course of confidential counseling. As such, it was protected by the clergy-penitent privilege and could not be basis for a criminal prosecution. A trial judge agreed that the statements made to the minister were covered by the clergy-penitent privilege. On that basis, the judge ruled that the minister could not be called as a witness to testify regarding the statements made to him by the molester in the course of their confidential counseling session. On the other hand, the judge ruled that the minister had a legal obligation to report the abuse, and this duty was not affected by the clergy-penitent privilege. The molester appealed the trial judge’s ruling, and an appeals court concluded that the trial court’s decision was correct. The Alaska clergy-penitent privilege specifies that “a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser.” The privilege applies “at all stages of all actions, cases, and proceedings.” This is broad language, meaning that the privilege is not confined to “in court” testimony. The court concluded, however, that the minister’s “report of sexual abuse was made in an out-of-court statement that was unrelated to any action, case, or proceeding then pending. For this reason, although it divulged confidential communications between [the molester and the minister], the report did not amount to a violation of the … clergy privilege.” In summary, the court concluded that the clergy-penitent privilege applies only to pending “actions, cases, or proceedings,” and accordingly it prevents a minister from testifying in court regarding a conversation protected by the privilege. However, the privilege does not excuse a minister from making a report of child abuse (and thereby initiating an official investigation) since at the time of a report there ordinarily is no pending legal action. Of course, this case assumes that a minister has a mandatory duty to report child abuse. This is true in only about half the states. In those states in which ministers are not required to report child abuse, they are free to refrain from making reports on the basis of information they receive in the course of confidential spiritual counseling. Of course, even in such cases there may be legal and ethical reasons why a minister would want to report the abuse. Walstad v. State, 818 P.2d 695 (Alaska App. 1991).

Legal Developments

Criminal Sentences for Child Molesters

Sentencing varies by state.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Child Abuse

Church Law and Tax 1992-05-01 Recent Developments

Child Abuse and Molestation

Richard R. Hammar, J.D., LL.M., CPA

• What kinds of criminal sentences do child molesters face? This depends on the criminal laws of each state. However, it occasionally is instructive to mention a particular case to demonstrate the seriousness of such an offense. This is especially true in view of the common perception that child molestation involving only physical touching or fondling (and not sexual intercourse) is an insignificant offense. Nothing could be further from the truth. Consider a recent case in Louisiana. A 56-year-old grandfather was convicted of fondling his 4-year-old granddaughter on several occasions. No intercourse was involved. The grandfather pleaded guilty, and expressed remorse for his conduct. Nevertheless, a trial court sentenced him to 14 years of hard labor, despite the fact that it was the grandfather’s first criminal offense and he had enjoyed a good reputation in his community and church. A state appeals court affirmed the sentence. Clearly, it is dangerous to assume that seemingly minor incidents of child molestation are treated leniently by the courts. State v. Driggers, 582 So.2d 369 (La. App. 369).

See the feature article in this issue entitled Sexual Abuse in the Church Nursery; Personal injuries—on church property and during church activities, Miller v. Everett, 576 So.2d 1162 (La. App. 1991); Karen S. v. Streitferdt, 568 N.Y.S.2d 946 (A.D. 1 Dept. 1991).

Religious Conversion of Child Abusers

A court refused to suspend a man’s sentence on the basis of his religious conversion.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Child Abuse

Church Law and Tax 1991-11-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• A Louisiana appeals court refused to suspend a child abuser’s 12-year prison sentence on the basis of his religious conversion. A 38-year-old male (who was married and the father of 5 children) was convicted of sexually abusing one of his minor daughters. He was sentenced to serve 12 years at hard labor. The jury based this sentence on the serious nature of the offense, and the likelihood that the father would commit a similar crime if placed on probation. The father appealed his sentence, arguing that the court failed to adequately consider his religious conversion. Specifically, he maintained that he had “completely rehabilitated” himself as a result of his religious conversion, and that no further rehabilitation was necessary. He asked the appeals court to throw out his prison sentence, and place him on probation. The appeals court rejected this request. It observed: “The defendant repeatedly engaged in extremely serious criminal conduct over a period of about 9 years. His victim was his own biological child …. The blameless victim endured this abuse from the age of 2 to 11 years. She was not able to unburden herself and confide in her mother until she was 14 years old …. [S]he has been greatly traumatized by the defendant’s conduct …. Although the defendant may have made strides in rehabilitating himself, his serious conduct demands punishment.” This case illustrates an important point. The civil courts give little if any weight to religious conversions in evaluating the risk posed by convicted child molesters. On the other hand, churches have been far more willing to trust child molesters who profess to having experienced a life-changing religious conversion. Churches that use such persons in any capacity involving contact or association with minors must understand that they are incurring an enormous legal risk. If such a person molests another child during a church activity, the church almost certainly will be viewed as having acted negligently and recklessly in giving the person “another chance.” Evidence of the person’s professed religious conversion would be of little help in refuting the church’s legal liability. Churches should not hire or use known child molesters in any capacity (paid or volunteer) involving contact with minors. Those that choose to do so must understand that they are assuming the role of guarantor of the safety of children exposed to the molester. This is a duty that few if any churches can meet. State v. Crabtree, 569 So.2d 646 (La. App. 1990).

Negligent Selection

© Copyright 1991, 1998 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 c0691

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

Child Care Worker, Dismissed for Striking Child, Sues Former Employer

An Ohio court recently faced a difficult issue.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Breach of Contract, Child Abuse

Church Law and Tax1991-07-01Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• Can a child care worker who is dismissed for striking a child sue the child care facility for breach of contract and defamation? That was the difficult question presented to an Ohio state appeals court. A child care center hired a woman as the head teacher in a class of 2-year-old children. The center enrolled a 2-year-old boy who cried a great deal during his first few days at the facility. An employee informed the director that the teacher in the 2-year-old class had struck the boy. When the director entered the classroom, she saw the boy crying hysterically. As she was removing the boy from the room, she noticed a hand-mark on his face. Upon being questioned, the boy stated (and demonstrated) that the teacher had put her hand over his mouth and shook him. The teacher was confronted with this information, but denied it. However, she offered no other explanation as to the boy’s condition. The director was not satisfied that the teacher was being truthful, and accordingly she dismissed her. A teaching assistant later confirmed that the teacher had abused the boy by putting her hand over his mouth, shaking him, and telling him to “shut up.” The director later reported the incident to the boy’s mother, and to the state department of human services. The fired teacher sued the center, alleging defamation and breach of contract. She claimed that the center’s personnel manual constituted a contract, and that the center “breached the contract” by terminating her without utilizing “progressive discipline,” and by terminating her without “good cause.” She claimed that these actions were required by the personnel manual. Further, the fired employee claimed that she had been defamed by the director’s communications to the boy’s mother, to other workers at the center, to the president of the center’s board of directors, and to the state. A trial court rejected all of the teacher’s claims, and dismissed the lawsuit. The teacher appealed to a state appeals court, which also rejected her claims. The court noted that the teacher was an “employee at will” since she had been hired for an indefinite term. As an employee at will, she could be dismissed at any time for any reason. The court rejected the teacher’s claim that the personnel manual limited the center’s right to terminate her. It noted that the manual “specifically states that hitting or abusing a child is grounds for termination of service.” In rejecting the defamation claim, the court noted that the director was required by state law to report suspected cases of abuse to the department of human services, and so this communication did not constitute defamation. Further, there was no evidence that the director ever informed other workers at the center as to the reason that the teacher had been terminated. With respect to the communications made to the boy’s mother, and to the president of the center’s board of directors, the court concluded that such communications “enjoyed at least a qualified privilege” since they were matters of “common interest.” As such, the communications would not be defamatory unless they were made with “malice.” The court observed that “the record is devoid of evidence of actual malice on the part of [the director in communicating] the statements. On the contrary, the record reveals that [she] acted properly and reasonably under the circumstances.” Lail v. Madisonville Child Care Project, 561 N.E.2d 1063 (Ohio App. 1990).

Child Abuse Reporting | Failure to Report Child Abuse | Child Abuse Reporting | Child Abuse Reporting by Child Care Workers

Legal Developments

Child Abuse

Church Law and Tax 1990-05-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Malpractice

Church Law and Tax 1990-05-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• Can a person who reports a suspected case of child abuse be sued by the child’ parents after an investigation determines that no abuse occurred? That was the question before a California state court. A nine-year-old girl contracted chicken pox and was taken by her parents to a doctor for diagnosis and treatment. The doctor misdiagnosed the child’s symptoms as a venereal disease, and promptly notified county authorities while the girl was in his office. The same day, the girl was removed from her parents’ custody and was taken to a juvenile detention facility where she remained (without her parents’ knowledge) for seven weeks before being returned to her home after the county determined that the child was not suffering from a venereal disease. The parents sued the doctor for infliction of emotional distress, malpractice, and false imprisonment. They acknowledged that the doctor had a mandatory duty to report known or reasonably suspected cases of abuse, and that the child abuse reporting law granted “blanket immunity” to anyone filing a report based on actual knowledge or reasonable suspicion of abuse. However, the parents insisted that the doctor did not have enough facts to create a reasonable suspicion of abuse. Rather, he “jumped the gun” and acted with a “knee-jerk” response, and therefore was not protected by any immunity. The court agreed that the child and her parents were “traumatized by these events and suffered substantial individual and family distress.” However, it dismissed the lawsuit against the doctor on the ground that he did have enough evidence to create a reasonable suspicion of child abuse, and accordingly he could not be sued for damages resulting from the fact that his suspicion was wrong. This case illustrates the important principle that persons who report known or reasonably suspected incidents of child abuse generally cannot be sued if their suspicion later is proven to be false. The typical child abuse reporting law grants immunity to reporters in order to encourage reporting of reasonably suspected incidents of abuse as well as those that the reporter knows to be true. Cream v. Mitchell, 264 Cal. Rptr. 876 (Cal. App. 1989).

See Personal injuries—on church property or during church activities, Bender v. First Church of the Nazarene (Ohio App. unpublished opinion 1989).

© Copyright 1990, 1998 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 c0390

Legal Developments

Child Abuse – Part 1

Church Law and Tax 1990-03-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Child Abuse

Church Law and Tax 1990-03-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• In a decision that will be of relevance to churches and religious denominations conducting scouting programs, a Louisiana state appeals court addressed the liability of the Boy Scouts of America (and a regional affiliate and local sponsor) for injuries sustained by a boy who was sexually molested by a scoutmaster. The case is especially relevant to local churches since the local sponsor of the scout troop was also sued (many churches that do not have scouting programs of their own sponsor Boy Scouts or other scouting programs by allowing them to meet on their premises). Here are the relevant facts in this significant case. A couple filed a lawsuit alleging that a particular scoutmaster repeatedly molested troop members from 1983 through 1986, including the couple’s two sons. The couple sued the scoutmaster, the national and regional scouting organizations, and the local sponsor of the scout troop. The lawsuit alleged that the national and regional organizations and local sponsor were negligent in (1) “failing to take prudent and reasonable precautions to assure that the [scoutmaster] did not have a history of, or characteristics that would suggest a propensity toward child sexual molestation”; (2) appointing the molester as a scoutmaster “when they knew or should have known of his propensity for committing the sexual acts complained of”; (3) carelessly and negligently selecting scoutmasters; (4) failing to warn parents of the known sexual propensities of the scoutmaster who molested their children; (5) failing to have the molester undergo psychological counseling and testing when they knew or should have known of his propensity to commit acts of sexual molestation; (6) allowing the scoutmaster to continue with his duties when they knew or should have known of his propensity to commit act of sexual molestation; (7) failing to properly supervise the scoutmaster; and (8) failing to properly supervise minor children. A trial court dismissed most of the charges against the national and regional scouting organizations and the local sponsor, and the parents appealed. The state appeals court ruled that the parents had stated a valid claim against the defendants and ordered the case to proceed to trial. The court concluded that “one who undertakes the control or supervision of a child owes a duty to exercise reasonable care to protect the child from injury”; that the parents had stated enough allegations to support liability on the part of the defendants (if proven); and, that the parents should be allowed the opportunity to prove their allegations before a jury. This is the latest of several cases addressing the issue of sexual molestation of minors during church-related activities that have been summarized over the last few years in Church Law & Tax Report. It is an issue that needs to be addressed by local churches and regional and national denominational offices. Suggestions were reported in feature articles in previous issues of this newsletter. This case is of special interest because it is the first to assert liability against the sponsor of a scout troop. As mentioned above, this suggests that churches that simply allow scouting organizations to utilize their facilities may be at risk as well as those churches and denominations that have established and promote their own scouting programs. Future developments in this case, and any related cases, will be covered in future issues of this newsletter. L. P. v. Oubre, 547 So.2d 1320 (La. App. 1989).

Legal Developments

Child Abuse – Part 2

Church Law and Tax 1990-03-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Child Abuse

Church Law and Tax 1990-03-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• Can a church and church officials be legally responsible for fatal injuries inflicted on a child by a foster parent selected by the church? That was the issue before a Georgia court in a recent case. The child, who was a mentally-retarded eleven-year-old, was left with the church by her natural parents when they moved to Hawaii. The church had difficulty locating a foster family, and was forced to place the child with a family that had received no training in foster parenting and no orientation or guidance regarding the needs of a mentally-retarded child. The foster father soon determined that the child “needed to be disciplined.” One evening, he slapped her and “pushed her head into the floor.” After the child stopped breathing, the foster parents rushed her to a hospital emergency room where the child died following surgery. The surgeon testified that the child died of a blood clot on the brain caused by the rupture of blood vessels, and that such a condition could only have been caused by “a very significant amount of force.” Following the child’s death, her natural parents sued the church and various church leaders for their negligence in placing the child with the foster parents. Specifically, the natural parents argued that the church and church leaders had been negligent in placing their child with foster parents who were not adequately trained or screened. The foster parents were also sued. The jury found the church and certain church leaders responsible, but refused to find the foster parents responsible. A state appeals court ruled that the church and church officials could not be legally responsible if the foster parents were not, and accordingly it dismissed the case against them on the ground that the jury had found the foster parents innocent. The court observed that “the jury reached a verdict in favor of the [foster parents] …. This constitutes a finding that [they] were not liable for [the child’s] death. If [they] were not liable for her death, there can be no liability on the part of those who placed [her] with the [foster parents], or who were responsible for supervising the foster care after placement.” In other words, if the foster parents were innocent, how could the church and church officials be responsible for placing the child with the foster parents? LDS Social Services Corp. v. Richins, 382 S.E.2d 607 (Ga. App. 1989).

Legal Developments

Child Can Choose Own Religious Training

An Illinois appeals court ruled that a minor who had been placed in a foster

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: Child Abuse, Freedom of Religion

An Illinois appeals court ruled that a minor who had been placed in a foster home could choose her own religious training even though it was against the wishes of her natural parents.

The minor had been raised according to strict religious tenets, and had experienced excessive beatings, severe restrictions, and sexual abuse. She was declared an abused child by the state and was placed in a foster home. After her placement in the foster home, the minor immediately rebelled against the religious teachings of her natural parents, and severed all ties with her parents and their church.

The natural parents were upset that their daughter was not attending a church of their choosing, and they insisted that they had a constitutional right to determine the religious training of their child. The appeals court conceded that "freedom of religion and the right of parents to [determine] the care and training of their children are to be accorded the highest possible respect." However, neither right is beyond limitation. The court concluded that allowing the minor to choose the church she would attend was appropriate because of the "exceptional circumstances" of this case. In the Interest of C.L.T., 540 N.E.2d 1043 (Ill. App. 4th Dist. 1989).