Child Abuse

A California court ruled that an associate pastor who was suspended for reporting a suspected incident of child abuse involving his senior pastor could sue his church for “retaliation.”

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.

A California court ruled that an associate pastor who was suspended for reporting a suspected incident of child abuse involving his senior pastor could sue his church for "retaliation."

An associate pastor saw his senior pastor engage in an incident of suspected child abuse. He reported the incident to church and law enforcement officials. The associate pastor later sued the church, claiming that it "retaliated" against him for reporting the incident. Among other things, he claimed that the church relieved him of his duties; placed him on administrative leave; falsely reported to other clergy that he had committed inappropriate conduct; and demanded that he submit to a psychological evaluation.

The associate pastor's lawsuit alleged that the church's actions were defamatory, and caused him emotional distress. The church claimed that its treatment of its associate pastor was protected by the first amendment guaranty of religious freedom.

Clergy as Mandatory Child Abuse Reporters

The court began its opinion by observing that

While … civil courts may not involve themselves in reviewing the termination of clergy for theological or disciplinary reasons … churches and their congregations and hierarchy are as amenable as other societal entities to rules governing property rights, torts and criminal conduct. Here, the issue is whether the court may enforce the legislature's mandate that clergy members are not subject to sanction for making reports of suspected child abuse …. We conclude that the issues posed by [this lawsuit] are subject to judicial review. To hold otherwise … would be contrary to the legislative intent in amending the statute to include clergy within its ambit.

The court noted that the state child abuse reporting law reflects the state's compelling interest in preventing child abuse and protecting children. The objective of the reporting requirement is to identify victims and bring them to the attention of the authorities. The court stressed that the legislature

consistently has increased, not decreased, reporting obligations and has afforded greater, not less, protection to mandated reporters whose reports turn out to be unfounded. To that end, in 1996, the legislature [added] clergy members to those mandated to report known or suspected instances of child abuse to child protective agencies. In adding clergy to the list of mandated reporters, the legislature intended to address the reluctance of some religious institutions to report child abuse, to train clergy to recognize and address child abuse, and to afford clergy the immunity of mandated reporters. Section 11166, subdivision (c)(1) thus provides in pertinent part that "any clergy member who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her duties, whom he or she knows or reasonably suspects has been the victim of child abuse, shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident."

The court rejected the church's claim that including clergy on the list of mandatory child abuse reporters violated the first amendment guaranty of religious freedom:

In amending the Act to include clergy members as mandated reporters, the legislature determined that requiring clergy members to report suspected cases of child abuse was necessary to further the Act's purpose of protecting children from abuse …. [T]he statute as applied does not violate the free exercise clause of the first amendment nor does it constitute an excessive government entanglement with religion. The Act clearly applies to clergy members, is limited in scope and furthers the compelling state interest of protecting children from abuse. This interest is significant and outweighs the burden on [the church's] free exercise rights. Moreover, [the church], by seeking to shield its actions from scrutiny, would prevent [the associate pastor] from obtaining the benefit of the protections afforded mandatory reporters under [the Act]. A critical component of the statutory scheme is to require mandatory reporting but to protect those reporters from being subject to any sanction for their reports. To permit [the church] to escape scrutiny for its actions would be contrary to the legislative intent in [including] clergy members as mandatory reporters.

Retaliation Prohibited

The California child abuse reporting statute prevents employers from retaliating against employees who report child abuse. It specifies that "[t]he reporting duties under this section are individual, and no supervisor or administrator may impede or inhibit the reporting duties, and no person making a report shall be subject to any sanction for making the report."

The court concluded that a church that sanctions or retaliates against a pastor or other employee for reporting a suspected incident of child abuse may be legally liable on the basis of intentionally inflicting emotional distress. The court noted that the intentional infliction of emotional distress consists of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by plaintiff; and (3) plaintiff's emotional distress is the result of defendant's outrageous conduct. For conduct to be "outrageous," it must "be so extreme as to exceed all bounds of that usually tolerated in a civilized community." The court concluded that the associate pastor's allegation that the church sanctioned him because he reported suspected child abuse "is clearly an act which would reasonably support a finding of outrageous conduct." Similarly, the court ruled that the church could be sued on the basis of defamation since its public comments concerning the associate pastor were "not directed to any decision by [the church] to discipline or terminate [him] but to [its] exercise of his duty as a mandatory reporter."

Application. Clergy are mandatory reporters under some state laws. (Review the child abuse reporting laws in all 50 states). In several other states clergy are mandatory reporters if they are employed as teachers, school administrators, or counselors. In most of these states, clergy cannot be punished or "retaliated" against for discharging their legal duty to report a known or suspected incident of child abuse. To illustrate, assume that an adolescent female informs her youth pastor that her stepfather has been sexually abusing her. The youth pastor, who is a mandatory child abuse reporter, immediately reports this allegation to a state agency that investigates child abuse. When the church's senior pastor learns that the youth pastor reported the allegation without informing him, he dismisses the youth pastor. According to this case, the dismissal of the youth pastor could be viewed as prohibited retaliation that could expose the senior pastor and the church to liability. Conley v. Roman Catholic Archbishop, 2000 WL 1880609 (Cal. App. 2000).

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