Abuse Reporting and Penitent Privilege

Child abuse confession protected by clergy-penitent privilege, court says.

Church Law and Tax 1996-11-01

Confidential and Privileged Communications

Key point. In some states, ministers who are not mandatory reporters of child abuse are not legally required to report cases of abuse that are disclosed to them during confidential conversations protected by the clergy—penitent privilege.

An Illinois court ruled that the clergy—penitent privilege applied to confessions of child abuse made by a church member to his pastor. Two teenage girls went to their church one afternoon to set up for a youth event that evening. A 23—year—old youth counselor was on the premises, and he offered to assist the girls. At one point, the counselor was alone with one of the girls (the victim). He began kissing and fondling her. The girl told the counselor to stop, and then the two of them went to look for the other girl. When they found the other girl, the counselor told her to go to the basement to get a piece of equipment. After she left, the counselor immediately began kissing and fondling the victim. Once again, the victim asked him to stop, which he did. However, 30 seconds later he began making advances again. The victim pulled herself away, informing the counselor that she and her friend had to leave. The victim told her friend about the counselor’s behavior. The counselor later informed his pastor of his actions. The pastor arranged a meeting between the counselor, the victim, and the victim’s parents. The counselor apologized to the victim and her parents at the meeting. None of the participants at that meeting said anything to indicate that his statements would be revealed in public. The pastor then referred the counselor to an associate pastor for further counsel. The associate pastor provides spiritual and psychological counseling which he views as inseparable. He is a clinical psychologist and an ordained minister. As an ordained minister, he took an oath containing a vow of silence with respect to confessions. After speaking with the youth counselor, he became concerned that he was required to report the incident. He contacted the Illinois Department of Children and Family Services (DCFS) and was informed that as a pastor he was not required to report, but as a psychologist he was required to report. Thereafter, he filed a report with the DCFS which led to a criminal investigation of the matter which in turn led to criminal charges being filed against the youth counselor. He was later convicted on two counts of aggravated criminal sexual abuse, and sentenced to prison for nine months and an additional 36 months of probation.

The youth counselor appealed his conviction. He argued that the state improperly compelled him to file a report with DCFS in violation of the clergy privilege. In response, the state maintained that the clergy privilege did not apply in this case because the youth counselor did not initiate the spiritual counseling and his relationship with the pastors was more of an employee—employer relationship than a “clergy—penitent” relationship. The state also insisted that the privilege belonged only to the pastors and therefore the associate pastor could waive the privilege when he made the report.

A state appeals court rejected the state’s argument, and agreed wit the youth counselor that the clergy—penitent privilege applied to the conversations he had with both of his pastors, and accordingly the associate pastor was improperly informed by the state that he should report the abuse. The court noted that ministers are not mandatory reporters under the Illinois child abuse reporting law, and as a result “the clergy privilege is applicable.” The court then reviewed the clergy—penitent privilege under Illinois law, and concluded that it applied to the conversations the youth counselor had with both pastors. The court observed:

[W]e find that the [youth counselor’s] conversations with [the associate minister] were privileged. The fact that [the associate minister] was a clinical psychologist in addition to a pastor and that he applied both spiritual and psychological principles in his counseling did not negate the existence of the privilege. Since the privilege belonged to the pastor as well as the [youth counselor], the trial court properly excluded the report from being introduced into evidence. The fact that the [youth counselor] did not instigate the counseling and that he was counselor for the youth group at the church did not destroy the privilege. The statute simply does not limit the privilege in the ways suggested by the state.

However, the court rejected the youth counselor’s argument that the proper remedy for the violation of the clergy privilege is to dismiss the case and discharge him from further prosecution since “it is unlikely that any evidence would have been obtained against him had the state not compelled the report.” The court noted that the proper remedy would be to exclude the privileged communications and the report filed in violation of the privilege. People v. Burnidge, 664 N.E.2d 656 (Ill. App. 1996). [ The Clergy-Penitent Privilege, Failure to Report Child Abuse]

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