Child Abuse Reporting

A Texas court ruled that a pastor was legally required to report to civil authorities the confession of a counselee that he had molested his three children.

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 Texas court ruled that a pastor was legally required to report to civil authorities the confession of a counselee that he had molested his three children, and rejected the counselee's claim that the confession should not have been used in court since it was protected by the clergy-penitent privilege.

A young girl called a Methodist church and disclosed that she and her brother and sister were being sexually molested by their father ("Carl"). Three days later, Carl called the church and made an appointment to talk with the pastor. When he arrived at the church, the senior pastor told him that his daughter had informed him that she (and her sister and brother) had been sexually molested by him. The pastor told Carl that he had called Child Protective Services (CPS) and reported the assaults. The pastor also told Carl that they were going to notify the police. Carl told the pastor, an elder in the church, and a business administrator that he did "not remember doing any such thing." Carl was charged with several counts of child molestation. He claimed that he had gone to the church to talk about marital problems, but was confronted by the pastor, elder, and administrator who repeatedly exhorted him to confess to the allegations of child abuse. After nearly an hour, Carl claimed that he "broke down" and said, "Yeah, I did it." He insisted that he said this to the church officials "to get them off my back." He testified that the church elder had accused him of being demon possessed, and that all three church officials informed him that God could not forgive him until he confessed and that he would be given a "lighter sentence" if he confessed.

Carl was convicted of molesting each of the three children, and was sentenced to 75 years in prison for each child. He appealed, insisting that the trial court erred by allowing the prosecution to inform the jury about his confession to the church officials. He claimed that the confession was privileged, and that it had resulted from deceptive promises of leniency and spiritual cleansing.

The Texas clergy-penitent privilege (Rule 505 of the Texas Rules of Evidence) provides, "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser." The state asserted that the clergy-communication privilege cannot be used to exclude any evidence obtained in these child abuse cases, citing sections 261.101 and 261.202 of the Texas Family Code. Section 261.101 states, "A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter …. The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including … a member of the clergy." Section 261.202 provides, "In a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client."

The court concluded that these provisions "create an exception" to the clergy-penitent privilege. It observed,

Sections 261.101 and 261.202 create an exception to [the clergy-penitent privilege]. Statutory interpretation requires that we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. To that end, we must focus our attention on the statute's text and attempt to discern the fair, objective meaning of that text at the time of its enactment …. The exceptions to the privilege in the Family Code are clear and unambiguous. We hold that section 261.202 clearly makes an exception to [the clergy-penitent privilege] in this case …. We hold that the trial court did not err in denying Carl's claim of clergy-communication privilege because section 261.202 excepts the privilege in child abuse cases such as this.

The court also referred to a legal treatise which concluded, "First, the Family Code explicitly provides that a claim of privilege, other than the attorney-client privilege, may not be interposed in proceedings regarding the abuse or neglect of a child. An Attorney General Opinion resolves the seeming conflict between the Family Code and [the clergy-penitent privilege] in favor of the Family Code [citing Op. Tex. Atty. Gen. No. JM-342 (1985)]. Since the rules of evidence are subordinate to legislative enactments, the Attorney General's interpretation is doubtlessly correct." S. Goode, Texas Practice: A Guide to the Texas Rules of Evidence: Civil and Criminal § 505.1(2d ed. 1993).

The court also rejected Carl's argument that his "confession" to the church officials should not have been used since it was obtained through "deception." Specifically, he claimed that the church elder told him that if he confessed, he would "probably just have only five years instead of fifteen years" and his confession would "cleanse him." Carl insisted that these deceptive promises induced him to involuntarily confess. The court did not agree. It noted that the elder's advice regarding the likely prison sentence was not a "promise," but rather was "attempted legal advice by a layman, which turned out to be incorrect." Further, the elder's advice about "cleansing" was "not of the type likely to make Carl believe that his condition would be bettered by making a confession, even a false confession." Bordman v. State, 56 S.W.3d 63 (Tex. App. 2001).

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