Key point 4-08
Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.
The Vermont Supreme Court ruled that persons who are mandatory reporters of child abuse under state law have no legal duty to report consensual sexual activity among two minors.
This addresses a question that is all too common for both senior pastors and youth pastors who learn of sexual activity among minors. Is there a legal duty to report such activity, assuming that it meets the definition of reportable abuse under state law and the pastor is a mandatory child abuse reporter? This is a very complex question for which there has been little if any guidance from the courts, and that is what makes the Vermont ruling significant.
The facts of the case can be quickly stated. A 14-year-old boy had "consensual" sexual intercourse with a 12-year-old girl while watching television at her home. The boy was prosecuted for being a delinquent on the basis of his commission of the crime of statutory rape. The state supreme court ruled that the boy could not be adjudicated a delinquent since minors cannot be guilty of the crime of statutory rape. It based this conclusion on the fact that statutory rape is reportable child abuse under the state child abuse reporting law, and so if consensual sex between minors (below the age of 16) constitutes statutory rape and obligates mandatory reporters to report every known or reasonably suspected incident then the following unacceptable consequences would result: (1) The state would have to list one or both minors in the child abuse registry as a victim or perpetrator despite the fact that an adjudication of delinquency is a confidential procedure that normally cannot be publicly disclosed. The court concluded, "We seriously doubt the that legislature intended to label a juvenile under sixteen years of age who engages in a sexual act a child abuser for life." (2) If the abuse is substantiated, the state "shall promptly inform a parent or guardian of the child." The written records of the investigation are placed in a registry of substantiated child abuse cases indexed by the name of the child. Registry information is available to day care providers for background checks on job applicants and staff. Thus, "placement of information in the registry represents a substantial stigma for the perpetrator, and a substantial privacy invasion for the abused child." (3) Prosecution for consensual sexual acts between minors "raises important privacy concerns that implicate constitutional rights. The United States Supreme Court has held that the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults."
Application. The fact is that consensual sex between adolescents is common, and pastors may be made aware of it when it involves members of their congregation. If the sexual relations constitute reportable child abuse under state law, and a pastor is a mandatory child abuse reporter (and is not exempted from the reporting obligation by the applicability of the clergy-penitent privilege), then the pastor faces a very difficult task in knowing whether or not to report the incident. This case suggests that not every act of consensual sex between minors under the age of 16 will constitute reportable child abuse under state law, since such conduct may not constitute statutory rape. Of course, this case reflects the conclusion of but one court. Courts in other states may reach a different conclusion. It is therefore imperative for pastors to consult with an attorney, or with an employee of the state agency that investigates reports of child abuse, to determine the existence of a reporting duty under these circumstances. In re G.T., 758 A.2d 301 (Vt. 2000).