Child Abuse Reporting

The New Hampshire Supreme Court ruled that church leaders who failed to report allegations of child abuse could not be sued.

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 New Hampshire Supreme Court ruled that church leaders who failed to report allegations of child abuse could not be sued by the victims on the basis of their failure to report.

A female church member sought spiritual guidance from elders of her church because of marital problems she was experiencing, which included physical and verbal abuse. In response to her requests, the elders provided the couple with spiritual advice and assistance, which included prayers, Bible readings, and discussion of the Scriptures for application to their problems. The wife claimed that on ten separate occasions she informed the elders that her husband was abusing their two minor children. The husband was later convicted of molesting one of the children. Several years later, when the two children were adults, they sued their church, and a parent denomination (the 'church defendants'), claiming that they were liable for their injuries on the following grounds: (1) negligent failure to report the abuse; (2) a breach of their fiduciary duties by failing to report the abuse; and (3) willful concealment of the abuse.

The church defendants asked the trial court to dismiss the lawsuit since (1) the clergy-penitent privilege prevented the elders from reporting the abuse; (2) they had no fiduciary duty to protect minor church members from abuse; and (3) the child abuse reporting law did not create a private right of action. The trial court ruled that all of the plaintiff's claims amounted to 'clergy malpractice,' and that the First Amendment guaranty of religious freedom barred the civil courts from resolving such claims. The plaintiffs appealed.

The child abuse reporting law

The plaintiffs argued on appeal that the plain language of the child abuse reporting law required the elders to report the suspected child abuse to law enforcement authorities, and so their failure to report rendered them liable for the plaintiffs' injuries. The court conceded that the reporting law specifies that 'any priest, minister, or rabbi or any other person having reason to suspect that a child has been abused or neglected shall report the same in accordance with this chapter.' However, the court concluded:

[The reporting law] did not give rise to a civil remedy for its violation. Failure to comply with the statute is a crime and anyone who knowingly violates any provision is guilty of a misdemeanor. The reporting statute does not, however, support a private right of action for its violation. Even assuming, without deciding, that the elders had an obligation to report suspected child abuse to law enforcement authorities, the plaintiffs have no cause of action for damages based on the elders' failure to do so. Accordingly, we need not decide whether the church elders qualify as 'clergy' for purposes of the religious privilege.

'Common law duty' to report child abuse

The plaintiffs claimed that the church defendants had a common law duty to take action to protect them because a 'fiduciary relationship' existed between them that arose because 'they and their family were members of the church and relied to their detriment on elders of the congregation for moral, spiritual, and practical guidance.'

The court noted that 'special relationships' giving rise to a duty to aid or protect individuals from the criminal acts of others include relationships between schools and students, common carriers and passengers, innkeepers and guests, and landowners and invitees. These are deemed special relationships because each involves the assumption of custody over another 'under circumstances such as to deprive the other of his normal opportunities for protection.'

In this case, however, the court concluded that there was no reason to find a special relationship between a church and its members (including those who are minors), since 'there is no allegation that [the father's] alleged abusive acts took place on congregation property or during congregation-related activities. There is no allegation that the plaintiffs were under the custody or control of the church defendants at any time. In fact, the evidence is that the plaintiffs were at all times under the custody and protection of their parents. [As a result] there are no factors present that establish any special relationship between the plaintiffs and church defendants.' Since there was no special relationship, there was 'no common law duty running from the church defendants to the plaintiffs' that was breached by their failure to report the abuse.

The court pointed out that the mother had her own independent and overarching duty to protect her children from abuse perpetrated by her husband and had a common law obligation to intervene regardless of any advice she received from the elders.

Breach of a fiduciary duty

The court rejected the plaintiffs' claim that the church defendants owed them a fiduciary duty of care when the elders became aware of the abuse. A fiduciary relationship exists 'wherever influence has been acquired and abused or confidence has been reposed and betrayed.' In this case, the plaintiffs 'did not allege that the elders acquired influence over them or that their confidence had been reposed in the elders and that without these basic facts, there can be no fiduciary relationship.'

Application . This case is significant for two reasons. First, it rejects the view that a state child abuse reporting statute authorizes victims of abuse to bring civil lawsuits against persons who knew of the abuse but failed to report it. This same conclusion has been reached by many other courts. Note, however, that eight states have amended their child abuse reporting law to specifically authorize victims to sue mandatory reporters who fail to report abuse. Second, it is interesting to note that the court failed to point out that the New Hampshire child abuse reporting law specifically negates the clergy-penitent privilege in the context of child abuse reporting. It states, 'The privileged quality of communication between husband and wife and any professional person and his patient or client, except that between attorney and client, shall not apply to proceedings instituted pursuant to this chapter and shall not constitute grounds for failure to report as required by this chapter.' Berry v. Watchtower Bible and Tract Society, 879 A.2d 1124 (N.H. 2005).

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