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 Washington state court ruled that the state child abuse reporting law did not give victims of abuse a right to sue a church for monetary damages as a result of a minister’s failure to report abuse, but victims in some cases may be able to sue a church on the basis of emotional distress as a result of how church leaders handled the case. A minor female (the plaintiff) claimed that she told a minister that her stepfather was sexually abusing her and her sister. She met with the minister because she “just wanted the abuse to stop. That’s it.” The plaintiff further alleged that the minister responded, “I’m so glad you came and talked to me, because I don’t have to report it.” The minister explained that another minor female in the church had informed her school counselor that her father was molesting her, and this had resulted in the state investigating the allegation and ruining the father’s reputation in the community and bankrupting the family. The plaintiff stated that “[the] message came across pretty loud and clear [that] had I gone to somebody else, they would have reported it. And the situation, what happened to the other family, would be what would happen to my family.”
A few years later the plaintiff and her sister sued their church for negligence and emotional distress as a result of the continuing molestation they had endured as a result of the failure by the church to report the child abuse to civil authorities. After three weeks of trial the jury returned a verdict in the plaintiffs’ favor of $4.2 million based on emotional distress and a negligent failure to report the abuse. The church appealed.
Does the Reporting Statute Create a Civil Remedy?
A state appeals court began its ruling by addressing the question of whether the state child abuse reporting law, which is a criminal statute, provides a civil remedy for a failure to report. The court concluded that a private remedy could be inferred by the reading of the reporting statute, for the following reasons: (1) “Implying a remedy is consistent with the underlying intent of the statute-imposing civil consequences for failure to report motivates mandatory reporters to take action to protect victims of childhood sexual abuse.” (2) The reporting statute grants immunity from civil liability to “a person who, in good faith and without gross negligence, cooperates in an investigation arising as a result of a report made pursuant to this chapter.” A grant of immunity from liability “clearly implies that civil liability can exist in the first place. Accordingly, we conclude that a private cause of action is implied under the mandated reporting statute.”
Liability for Failure to Report
The Washington reporting statute defines a “mandatory reporter” to include several specified occupations, including a “social service counselor.” A social services counselor is defined as “anyone engaged in a professional capacity during the regular course of employment in encouraging or promoting the health, welfare, support or education of children, or providing social services to adults or families, including mental health, drug and alcohol treatment, and domestic violence programs, whether in an individual capacity, or as an employee or agent of any public or private organization or institution.”
The church claimed that the reporting statute did not impose a general duty to report child abuse, but only requires certain categories of professionals to report child abuse. Because ministers are not professional social service counselors, the church argued that it had no duty to report. The court agreed. It concluded that “the legislature did not intend the mandated reporting statute to apply to volunteer counselors who are not professional social service counselors and not acting in their regular course of employment.”
In summary, the court acknowledged that a right to sue for civil damages could be implied in the child abuse reporting law, but only with respect to mandatory reporters. And, since ministers ordinarily are not professional social service counselors, they are not mandatory reporters and therefore no civil remedy exists for a failure to report child abuse. As a result, the court dismissed the plaintiffs’ claim that the church was liable for a failure to comply with the child abuse reporting law.
The church also claimed that ministers are not included on the list of mandatory reporters, and so the church could not be liable for a minister’s failure to report. Once again, the court agreed.
The court concluded that the church could be liable for inflicting emotional distress on the plaintiffs. It quoted the trial judge: “If the jury finds that [the minister] basically discouraged the plaintiff from pursuing anything further because the family would break up, they’d be out on the streets, basically, everybody would be talking about her, if that’s true, then it seems to me that there’s plenty of room for a jury to find outrage, and that would be the basis of the outrage. This is a 13- or 14- year old girl. This is sexual abuse. Someone who gets the courage up to go talk to an adult, a male adult at that, I believe that there’s plenty of evidence there for a jury to find that the tort of outrage was indeed committed if they believe that occurred.”
Application. This case is significant for two reasons:
First, the court concluded that the state child abuse reporting law gave victims of abuse the right to sue mandatory reporters for negligence as a result of a failure to report known or reasonably evident cases of child abuse.
Second, the court concluded that churches may be liable on the basis of emotional distress for how they handle disclosures by minors of abuse, even though there is no legal duty to report the abuse to civil authorities. Doe v. Corporation, 167 P.3d 1193 (Wash. App. 2007).
This Recent Development first appeared in Church Law & Tax Report, September/October 2008.