Clergy-Penitent Privilege Protects Pastor

Charges of criminal failure to report child abuse were dismissed for one Michigan pastor.

Child Abuse Reporting

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 Michigan court ruled that a pastor could not be prosecuted under the state child abuse reporting law for failing to report an incident of child abuse that had been disclosed to him in the course of a conversation protected by the clergy-penitent privilege. In 2009, a pastor was approached by a parishioner regarding her concerns that her husband was abusing her daughters. The parishioner testified as follows at a hearing to dismiss the charges:

I didn't know what to do, because I had found out that my husband at the time had my girls touch themselves [in their genital areas], and I went to my pastor because I didn't know what to do. So I went to him to find out what to do, because I wanted [my husband] to get help, and I wanted to know what he thought—whether I should make a report when my husband did not actually touch the girls.

She further testified that she told the pastor she was willing to report it if necessary. She asked the pastor to meet with her husband. She could not remember if she met with him at the church, but she thought she had called him. She testified that she talked with him alone and no one else was listening to the conversation.

The mother went to her pastor again in 2011 after an additional incident. She explained: "I woke up to my daughter screaming. My husband was in her room, and she was screaming, "I hate you, I hate you, don't ever touch me again. I went in there and asked her what happened. And she said that he was touching her."

When the mother went to the pastor following this incident he told her she needed to report it or else he would. It was during the investigation of this incident that the police learned about the 2009 report by the mother to the pastor.

The pastor was prosecuted for criminal failure to report child abuse. He asked the court to dismiss the charges on the ground that his conversations with the mother were protected from disclosure by the clergy-penitent privilege. The Michigan child abuse reporting law defines mandatory reporters to include any "member of the clergy," but it further provides:

Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to this act.

The clergy-penitent privilege is defined by Michigan law as follows: "Any communications between attorneys and their clients, between members of the clergy and the members of their respective churches, and between physicians and their patients are hereby declared to be privileged and confidential when those communications were necessary to enable the attorneys, members of the clergy, or physicians to serve as such attorney, member of the clergy, or physician."

The trial court dismissed the charges against the pastor on the ground that he had become aware of the abuse in the course of a conversation with the mother that was protected by the clergy-penitent privilege. The state appealed.

A state appeals court began its opinion by noting that there was no dispute that the pastor was a member of the clergy or that the mother talked with him in his professional character. The issue was whether the mother communicated with her pastor "in his … professional character in a confession or similarly confidential communication." The state asserted that the privilege was limited to confessions, and since the mother did not confess to anything in her conversations with her pastor, but rather relayed information pertaining to her husband's actions, the privilege did not apply and so the pastor could be prosecuted for failing to report the abuse.

The court disagreed:

We hold that a communication is within the meaning of "similarly confidential communication" when the church member does not make [a confession] but has a similar expectation that the information will be kept private and secret. In the case at bar, the trial court made a finding of fact that the mother went to the pastor "for guidance, advice and expected that the conversation be kept private." The court determined, "I can't find anything but that this was done within exactly what the privilege was intended to target" and concluded that the privilege applied … . The mother "was approaching [the pastor] in his role as a pastor. She was seeking his pastoral guidance and for that reason, there was the expectation of privacy." The trial court also noted that she "clearly testified as well that she did expect for this to be a confidential communication between her and within her family." Thus, in this case, although the mother did not make a confession, she had a similar expectation the communication would not be shared. Therefore, the communication [was privileged] and the pastor was not required to make a report.

What This Means For Churches:

Clergy are mandatory child abuse reporters in 41 states, either because the definition of "mandatory reporter" under state law includes "ministers" (26 states) or because the state child abuse reporting law defines "mandatory reporter" to include all persons (15 states). However, in 30 of these states, clergy who otherwise are mandatory reporters are not required to report abuse disclosed to them in the course of a conversation covered by the clergy-penitent privilege.

This case is significant for three reasons:

First, it illustrates the potential criminal liability that clergy face if they are mandatory child abuse reporters under state law, but fail to report known or reasonably suspected incidents of abuse.

Second, this case demonstrates the importance of being familiar with the clergy-penitent privilege. The wording of this privilege varies somewhat from state to state, and few ministers could define it with specificity. But understanding the privilege is vital to an assessment of potential criminal liability for not reporting child abuse in those states in which clergy are mandatory reporters except in cases where they learn of the abuse in the course of a conversation protected by the clergy-penitent privilege.

Finally, note that the fact that a minister is excused from the duty to report child abuse by the availability of the clergy-penitent privilege does not mean that clergy should not report such abuse. They are deemed "permissive" reporters of abuse under such circumstances, meaning that they face no criminal liability for not reporting abuse. But in most cases, clergy should report known or reasonably suspected cases of child abuse even if not legally required to do so. Not only will this contribute to a cessation of the abuse, but it will also protect the minister and his or her church from potential civil liability for not reporting. People v. Prominski, 839 N.W.2d 32 (Mich. App. 2013).

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