Clergy-Penitent Privilege May Not Protect Church Elders Who Did Not Report Child Abuse Case

State’s definition of clergy narrowly defined

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.

Conversation 1

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.

Conversation 2

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).

Churches and Revoking Pension

Church Law and Tax Report Churches and Revoking Pension Key point 2-04.1. Most courts have

Church Law and Tax Report

Churches and Revoking Pension

Key point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

A federal bankruptcy court in Delaware ruled that it was barred by the “ministerial exception” from resolving a dismissed priest’s claim that his diocese acted unlawfully in revoking his pension benefits based on his sexual abuse of minors. A Catholic diocese filed for bankruptcy protection under Chapter 11 of the bankruptcy code. The diocese had been named as a defendant in 131 child molestation claims involving several priests. The diocese entered into a settlement with the abuse victims in the bankruptcy proceedings. The settlement contained a provision stating that eight priests who had been dismissed by the diocese for abusing minors would be ineligible for benefits of any kind arising on or after the date of the bankruptcy petition, including benefits under the diocese “clergy pension plan.” One of the priests objected to the revocation of his benefits, claiming that this amounted to a breach of contract that could be adjudicated by the court without delving into religious doctrine.

In rejecting the priest’s claim, the court relied on the so-called “ministerial exemption” which generally bars the civil courts from resolving employment disputes between churches and clergy. The court quoted from a 2012 United States Supreme Court ruling that recognized and affirmed the ministerial exemption:

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012).

The Supreme Court concluded that an award of any relief, such as frontpay, backpay, compensatory and punitive damages, or attorney’s fees, would “operate as a penalty on the church for terminating an unwanted minister,” and was prohibited by the First Amendment.

The diocese argued that under the Hosanna-Tabor ruling, the bankruptcy court was barred from granting the priest any relief on account of his removal from ministry. The court agreed.

Hosanna-Tabor has made it clear that the Establishment Clause and the Free Exercise Clause bar the government from interfering with the decision of a religious group to fire one of its ministers. In the same vein, the Court is unable to require a church to “accept or retain an unwanted minister, or punish … a church for failing to do so.” Awarding any relief that would “operate as a penalty on the church for terminating an unwanted minister” is equally prohibited by the First Amendment, seeing as the award of such relief would depend on a determination that the church was wrong to have relieved the minister in question … .

Much like how awarding [the plaintiff] in Hosanna-Tabor with any relief (of frontpay, backpay, compensatory and punitive damages, or attorney’s fees) would operate as a penalty on the church for terminating an unwanted minister, awarding [the priest in this case] with relief for his claim of pension and sustenance would likewise effectively create a penalty or punishment upon the diocese for the removal of the priest from ministerial duties … . The court is barred, by the ministerial exception, from forcing the dismissed priest’s reinstatement into ministry, or awarding any form of relief that would come at the diocese’s expense on account of his removal … .

The ministerial exception exists in order to ensure that “the authority to select and control who will minister to the faithful … is the church’s alone.” The diocese (through the Bishop) chose to remove eight priests from ministry, and that decision remains the diocese’s alone. The granting of any claims for pensions, sustenance, or other forms of relief against the diocese would create a determination that the diocese was wrong to have relieved the ministers of their positions—a decision that the Supreme Court has already declared “strictly ecclesiastical,” and off-limits for the courts.

What This Means For Churches:

This case illustrates how some courts have construed the ministerial exception broadly to apply not only to cases involving termination of clergy, but also to collateral issues. As the Supreme Court noted in the Hosanna-Tabor case, the ministerial exception bars civil courts from awarding damages to dismissed clergy if doing so would have the effect of punishing a church for its decision to terminate a minister. In re Catholic Diocese, 513 B.R. 639 (D. Del. 2014).

Confidential and Privileged Communications

In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

A Delaware court ruled that confidential statements made to a church deacon were not protected by the clergy-penitent privilege and therefore the deacon could be compelled to testify in court about them.

A woman (the 'defendant') was charged with various sex offenses involving a minor. At her trial, the prosecutor sought to have a church deacon testify concerning incriminating statements made to him in confidence by the defendant. The defendant objected to this testimony, claiming that it was protected from disclosure by the clergy-penitent privilege.

The Delaware 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.' It defines a clergyman as 'a minister … or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.'

The court noted that the deacon in this case was 'unquestionably, not a 'minister.' As a result, the defendant had two other options to prove her claim of privilege-first, that the deacon was a 'similar functionary of a religious organization,' or she reasonably believed him to be such. The court rejected both of these arguments.

First, a deacon is not a 'similar functionary' to a minister. It observed, 'Merely an individual's being an important—even critical—functionary in a profession is not identical to his being that particular named professional. A paralegal may not practice law. A nurse, who may well have a more precise working knowledge of a given patient than a physician, is not a physician, and cannot even testify as to injury causation.'

Second, the court rejected the argument that the defendant 'reasonably believed' the deacon to be a 'similar functionary.' She never observed him 'attired in ministerial garb or conducting services' and never heard him say that he was a minister. Further, the court pointed out that the defendant's father was a pastor, and so she 'should be even more aware than the average person that deacons and pastors are hardly one and the same.'

Finally, the court noted that the clergy-penitent privilege applies only to statements made to a minister acting in a professional capacity as a spiritual adviser, and that 'there is little suggestion of that in this case.' It stressed that the deacon thought that the defendant was speaking to him as a 'concerned friend.'

State v. Price, 881 A.2d 1082 (Dela. Superior 2005)

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