Key point 3-08.08. Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.
A Texas court ruled that the clergy-penitent privilege did not prevent a minister from testifying against a church member in a child molestation prosecution.
A 10-year-old girl claimed that her stepfather (the defendant) had sexually molested her. Following this incident, the defendant and his wife conferred with an elder of their church. The defendant's wife also reported the incident to the police, and the defendant was charged with indecency with a child. At trial, the defendant claimed that statements he made to a church elder were privileged communications to a member of the clergy under a Texas law which states that "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."
A jury convicted the defendant of indecency with a child and imposed a sentence of 5 years in prison. The defendant appealed his conviction on the ground that the trial court improperly admitted the testimony of the elder in violation of the clergy-penitent privilege.
The appeals court conceded that "a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser." However, "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 "because this case involved abuse of a child, we conclude the trial court was correct in overruling defendant's objection that [the elder's] testimony involved privileged matters." It also pointed out that "the Texas legislature has determined that any communication involving the abuse or neglect of a child will not be afforded protection under any circumstances other than the attorney-client privilege," and "as a result, there is no privilege protecting communications with a clergyman in his professional capacity as a spiritual adviser regarding the abuse or neglect of a child."
Application . Several states, like Texas, have laws that make ministers mandatory child abuse reporters even with respect to information disclosed to them in the course of a confidential communication subject to the clergy-penitent privilege, and that allow such information to be admissible in court proceedings. Almendarez v. State, 153 S.W.3d 727 (Tex. App. 2005).
