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 Utah Supreme Court ruled that a pastor could not be sued by a victim of child molestation for advising her to forgive the offender and forget the incident rather than reporting it to the police.
Beginning in 1986, a 7-year-old girl (Leah) was sexually abused by a 14-year-old boy (Drew). At the time the abuse occurred, Leah and Drew were members of the same church. The sexual abuse was so extreme that Leah repressed the memory of the abuse until 1992, when she was 14. Upon recalling these incidents, Leah and her parents sought counseling from their minister. During these counseling sessions, the minister advised Leah to "forgive, forget, and seek atonement." At some point in the process of the counseling, Leah determined that she needed additional help and was referred by the minister to a counselor. While this counselor held himself out as a professional counselor, he was not licensed. The counselor encouraged Leah and her parents to forgive Drew and forget the incidents of sexual abuse rather than to inform the police. Leah and her parents were not comfortable with this advice, and they sought out another counselor who immediately reported the incidents of sexual abuse to the police. After the abuse was reported to the police, Leah alleged that she was "ostracized and denigrated" by the members of her church, causing her to withdraw.
Leah and her parents sued the minister and church, alleging (1) clergy malpractice; (2) gross negligence; (3) infliction of emotional distress; (4) breach of fiduciary duty; and (5) fraud. The church asserted that a resolution of the lawsuit would create an excessive governmental entanglement with religion in violation of the first amendment because it would require the court to impose a secular duty of care on pastoral counselors. Leah claimed that all of her claims could be resolved by the court without any inquiry into the church's doctrines, practices, or beliefs and therefore they were not barred by the first amendment. The trial court agreed with the church and dismissed all of Leah's claims. It concluded that Leah was asking the court to impose a secular duty of care on pastoral counselors in the performance of their spiritual counseling duties in violation of the first amendment guarantees of religious freedom and nonestablishment of religion. Leah appealed this ruling to a state appeals court.
The appeals court began its opinion by noting that "it is well settled that civil tort claims against clerics that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred by the first amendment under the entanglement doctrine" and that churches must have "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." The court noted that this principle has caused the courts to "uniformly reject" claims of clergy malpractice since "a determination of such claims would necessarily entangle the courts in the examination of religious doctrine, practice, or church polity."
Leah insisted that the court could resolve her other claims, including negligence, infliction of emotional distress, and breach of fiduciary duty. The court disagreed. It observed,
An examination of Leah's complaint reveals that each of her … claims alleges that while counseling with Leah in the context of an ecclesiastical counseling relationship, the [minister] breached a duty owed to Leah by advising her to "forgive, forget, and seek atonement" or by advising her to seek outside help from … an unlicensed therapist. Accordingly, like her clergy malpractice claim … the essence of [the other claims] is that the [minister] mishandled the pastoral counseling relationship by giving bad advice-claims necessarily directed at the … performance of ecclesiastical counseling duties. Therefore, despite Leah's characterization of [these other claims] as gross negligence, negligent infliction of emotional distress, and breach of fiduciary duty, we must deal with the real issue here-clergy malpractice …. Because [these claims] allege that the [minister] generally mishandled his ecclesiastical counseling duties, a determination of the claims, like the clergy malpractice claim … could not be made without first ascertaining whether the [minister] performed within the level of expertise expected of a similar professional, i.e., a reasonably prudent bishop, priest, rabbi, minister, or other cleric in this state. Indeed, malpractice is a theory of tort that would involve the courts in a determination of whether the cleric in a particular case … breached the duty to act with that degree of skill and knowledge normally possessed by members of that profession. Defining such a duty would necessarily require a court to express the standard of care to be followed by other reasonable clerics in the performance of their ecclesiastical counseling duties, which, by its very nature, would embroil the courts in establishing the training, skill, and standards applicable for members of the clergy in this state in a diversity of religions professing widely varying beliefs. This is as impossible as it is unconstitutional; to do so would foster an excessive government entanglement with religion in violation of the [first amendment's "nonestablishment of religion" clause]. Accordingly, we conclude that the trial court correctly determined that Leah's claims against the [minister and church] are barred by the first amendment.
Leah also claimed that the minister had committed fraud by falsely representing that the first counselor she was referred to "had a Ph.D. in counseling or psychology or was a licensed psychiatrist." In rejecting this claim, the court simply noted that the counselor in fact did have a doctorate degree in counseling and therefore the minister did not make a false representation.
Application. What is the significance of this case to other churches and ministers? Consider the following points:
1. Civil liability. Pastors often receive information about child abuse during counseling. In some cases, like this one, the victim discloses the abuse. In other cases, the offender confesses, or a third party with knowledge of the abuse discloses it. According to this court, a pastor who urges a victim to forgive the offender and forget the matter, and does not report it to the civil authorities, cannot be sued for malpractice, emotional distress, or negligence since such claims are barred by the first amendment.
2. Criminal liability. In Utah, as in about half the states, pastors are mandatory reporters of child abuse. As such, they can be criminally liable for not reporting known or reasonably suspected incidents of abuse. Pastors who are mandatory reporters should recognize that a decision not to report an incident of child abuse may result in criminal liability. However, in some states pastors who are mandatory reporters are excused from the duty to report child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Utah is such a state. Therefore, the pastor in this case could not have been criminally prosecuted if he learned of the abuse in the course of a privileged communication. It is important for ministers to be familiar with the child abuse reporting law in their own state. See a summary of the child abuse reporting laws of all 50 states.
3. Referrals. Pastors often refer church members to mental health professionals for counseling. This case suggests that pastors are not liable for the advice given by these counselors. However, the case also suggests that pastors who refer members to a mental health professional for further counseling who they represent is "licensed" or "has a Ph.D. in counseling" may be liable for fraud if such representations are false. It is therefore prudent for pastors to refrain from making these kinds of statements about a counselor without verifying their accuracy. Franco v. The Church of Jesus Christ of Latter Day Saints, 2001 WL 228354 (Utah 2001).