Key point 3-08.08. Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.
A Delaware court ruled that the clergy-penitent privilege did not necessarily protect two church elders who failed to report a case of child abuse that was shared with them by the victim and his mother.
In 2013, a juvenile member (the "victim") of a church reported to his mother that he was engaged in a sexual relationship with an adult female church member. Two church elders met with the victim and his mother at the church. The elders were informed of the sexual relationship. They later spoke with the adult member who confirmed that the relationship occurred. Both the victim and the perpetrator were "disfellowshipped" (excommunicated) from the congregation. The elders did not report the child abuse under the procedures established by the state child abuse reporting law. The state of Delaware assessed civil penalties against the church and its two elders (the "defendants").
The defendants asked a trial court to dismiss the state's demand for civil penalties on the basis of section 909 of the Delaware child abuse reporting statute, which provides:
No legally recognized privilege, except that between attorney and client and that between priest and penitent in a sacramental confession, shall apply to situations involving known or suspected child abuse, neglect, exploitation or abandonment and shall not constitute grounds for failure to report as required by § 903 of this title or to give or accept evidence in any judicial proceeding relating to child abuse or neglect.
The court noted that section 909 "is a narrow exception to the duty to report child abuse or neglect. It is the religious equivalent of the attorney/client privilege. The obvious purpose of these privileges is to balance free and candid communications with legal or religious advisors, with the public mandate to prevent and prosecute child abuse."
The court noted that if the terms "priest," "penitent," and "sacramental confession" were narrowly interpreted, "only certain religions would be entitled to take advantage of the section 909 exception. The exception only would apply to "denominations that title their clergy 'priests,' refer to parishioners as 'penitents,' and officially recognize a sacrament called 'confession.' Clearly, such an interpretation would compel a finding that section 909 is in violation of the [Constitution] since carving out an exception only for certain denominations would impermissibly grant a preference to some religious societies, denominations, or modes of worship. If section 909 were to be interpreted narrowly, the effect would be to advance certain religions over others."
The court concluded that "to avoid a finding that section 909 is unconstitutional, the statute may be interpreted more generically." For example, "priest" could be interpreted to include any member of the clergy. A "penitent" could refer to any person who seeks spiritual counsel from a minister. And, a "confession" could refer to any confidential conversation with a minister for the purpose of absolution or spiritual counsel.
The court noted that there were two conversations at issue in this case.
The first conversation was among the victim, his mother, and the two elders. The court concluded that this conversation was not necessarily privileged, and therefore it could not agree with the defendants' request to dismiss the state's attempt to assess civil penalties for violation of the child abuse reporting statute:
The section 909 privilege applies only when the purpose of the conversation is for penitence. The affidavits supplied by defendants leaves open certain questions of fact. What was the motivation of the victim and his mother in bringing the sexual relationship to the attention of the elders? Was the intention to report misconduct to church officials, or to confess sinful behavior and thus to obtain absolution? The fact that the victim was excommunicated may indicate that he did not come voluntarily to the meeting, or that he did not reveal the information with the understanding that his repentance might result in the absolution that ordinarily is associated with a sacramental confession.
The court also noted that the circumstances and motivation of the perpetrator were in question. The defendants' affidavits indicate that the conversation was demanded by the elders as part of a disciplinary process. If the meeting with the elders was not initiated by the perpetrator, "she may not be deemed to be a penitent. If the purpose of this meeting was for the elders to investigate alleged child abuse, this conversation may not be a sacramental confession."
What this means for churches
This case is relevant to church leaders for the following reasons.
First, it demonstrates that clergy-privilege statutes that use restrictive terminology (i.e., priest, penitent, sacramental confession) are constitutional only if they are interpreted broadly to encompass confidential spiritual counseling involving ministers.
Second, the case illustrates the potentially negative consequences that may accompany decisions by church leaders not to report child abuse. Those consequences include the following:
1. Persons who are mandatory reporters of child abuse under state law are subject to criminal prosecution for failure to report. Some clergy have been prosecuted for failing to file a report. Criminal penalties for failing to file a report vary, but they typically involve short prison sentences and small fines. The important point to note is that the legal duty to report is not excused by a church policy of handling such cases.
2. Ministers who are mandatory child abuse reporters under state law may face civil liability for failing to report abuse, if (1) no clergy-penitent privilege exception exists under state law, or (2) such an exception exists, but information concerning child abuse is not obtained in the course of a privileged conversation. Note that the application of the clergy-penitent privilege can be a complex legal question since there are specific requirements that must be met. The communication must be in confidence; it must be made to a minister; and it must be made for the purpose of seeking spiritual counsel. While in some cases the application of the privilege seems clear, in many cases it is not, and so clergy should seek legal counsel if there is any doubt as to the existence of a clergy-penitent privilege exemption and its application to a particular conversation.
In some cases, civil liability for failure to report is based on court rulings. But, seven states have enacted laws that create civil liability for failure to report child abuse. In these states victims of child abuse can sue adults who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for monetary damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law. These seven states are: Arkansas, Colorado, Iowa, Michigan, Montana, New York, and Rhode Island. State v. Laurel Delaware Congregation, 2016 WL 369355 (Del. App. 2016).