Child Abuse Reporting

The Missouri Supreme Court refused to rule that the first amendment guaranty of religious freedom prohibits states from applying child abuse reporting laws to ministers who learn of incidents of child abuse.

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 Missouri Supreme Court refused to rule that the first amendment guaranty of religious freedom prohibits states from applying child abuse reporting laws to ministers who learn of incidents of child abuse in the course of communications protected by the clergy-penitent privilege.

Two pastors of a local church were served with subpoenas by a local prosecutor. The subpoenas ordered the pastors to appear at the prosecutor's office and to bring "any and all relevant materials, including personal knowledge" regarding a criminal defendant who attended their church. The defendant was being prosecuted for sexually molesting his stepdaughters, and the prosecutor issued the subpoenas in order to obtain information about a confession that the defendant allegedly made to the two pastors.

The pastors asked the court to "quash" the subpoenas on the ground that the subpoenas required them to disclose a privileged communication made to them in their capacity as ministers providing spiritual advice and counseling. They claimed that compelling them to disclose this information would violate their first amendment right to freely exercise their religion.

The prosecutor insisted that the pastors were mistaken. He noted that the Missouri child abuse reporting law contains the following provision: "Any legally recognized privileged communication, except that between attorney and client, shall not apply to situations involving known or suspected child abuse or neglect and shall not constitute grounds for failure to report … to cooperate with the division … or to give or accept evidence in any judicial proceeding relating to child abuse." This provision, the prosecutor argued, nullified the clergy-penitent privilege in the context of child abuse reporting.

A trial court agreed with the pastors, and quashed the subpoenas on the ground that they violated the first amendment. The prosecutor appealed this ruling to the state supreme court. The supreme court concluded that it did not have to address the constitutional claim made by the pastors since it could dispose of the case on "nonconstitutional" grounds. Specifically, it noted that the state law under which the subpoenas had been issued only authorized the inspection of books and records, and not conversations or personal recollections. Therefore, the court refused to address the question of whether the child abuse reporting law "abrogates the minister-communicant privilege in situations involving child abuse or neglect" as the prosecutor insisted, or "violates the pastors' right to free exercise of religion."

Application. Several states have child abuse reporting laws containing the following contradictory provisions: (1) ministers are not included within the definition of a "mandatory reporter," and so they are permitted to report incidents of child abuse to civil authorities but they are not legally required to do so; and (2) the law specifies that "legally recognized privileged communications" (including the clergy-penitent privilege) do not excuse a failure to report child abuse. Why are these provisions contradictory? Because if ministers are not mandatory child abuse reporters then why does the statute say that the clergy-penitent privilege does not excuse the reporting of child abuse? There is only one logical way to resolve this contradiction. Ministers in these states are not mandatory reporters in their role as ministers, but they may be mandatory reporters because of some other status (e.g., a professional counselor, teacher, school administrator), and while acting in that other status they cannot excuse a failure to report child abuse on the basis of the clergy-penitent privilege.

Let's illustrate this with an example. Assume that ministers are not mandatory reporters in a particular state, and that the state child abuse reporting law specifies that the clergy-penitent privilege does not excuse a failure to report abuse. Pastor Ken is a full-time pastor of a church who learns of child abuse during a conversation protected by the clergy-penitent privilege. While the child abuse reporting law provides that the clergy-penitent privilege does not excuse a failure to report child abuse, the fact remains that Pastor Ken is not a mandatory child abuse reporter and therefore is not required to report the abuse. Now, let's assume the same facts except that Pastor Ken is also a licensed professional counselor. If professional counselors are mandatory child abuse reporters, and Pastor Ken was acting in his role as a professional counselor when he learned of the child abuse, then he would be legally required to report the abuse despite the fact that the conversation was protected by the clergy-penitent privilege. This may not be the interpretation that the courts will give to these contradictory provisions, but it certainly is the most reasonable and likely interpretation. Unfortunately, no court has ever addressed this issue.

There is one other possible explanation for these contradictory provisions. In some states, such as Missouri, ministers were included on the list of mandatory child abuse reporters in the past. It made sense for the statute to clarify that the clergy-penitent privilege would not excuse a failure to report abuse. However, the legislature later removed ministers from the list of mandatory reporters, but failed to delete the provision barring the clergy-penitent privilege from excusing a failure to report abuse. In other words, the contradictory provisions were the result of legislative oversight. If this is the case, then this supports the interpretation of these provisions set forth above. State v. Eisenhouer, 40 S.W.3d 916 (Mo. 2001).

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