• Key point. In some states ministers are mandatory reporters of child abuse, but they are not required to report known or reasonably suspected incidents of abuse that they learn of in the course of a privileged conversation.
The California legislature has enacted a statute making clergy mandatory child abuse reporters. However, ministers who learn of abuse in the course of a conversation protected by the clergy—penitent privilege are not required to report. The law took effect January 1, 1997. Here are the relevant provisions (all of which appear in the California Penal Code):
§ 11166. Report; duty; time
(c)(1) Except as provided in paragraph (2) and subdivision (d), any clergy member who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her duties, whom he or she knows or reasonably suspects has been the victim of child abuse, shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident. A child protective agency shall be notified and a report shall be prepared and sent even if the child has expired, regardless of whether or not the possible abuse was a factor contributing to the death.
(2) A clergy member who acquires knowledge or reasonable suspicion of child abuse during a penitential communication is not subject to paragraph (1). For the purposes of this subdivision, “penitential communication” means a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.
(3) Nothing in this subdivision shall be construed to modify or limit a clergy member’s duty to report known or suspected child abuse when he or she is acting in the capacity of a child care custodian, health practitioner, employee of a child protective agency, child visitation monitor, firefighter, animal control officer, humane society officer, or commercial film print processor.
(d) Any member of the clergy who has knowledge of or who reasonably suspects that mental suffering has been inflicted upon a child or that his or her emotional well—being is endangered in any other way may report the known or suspected instance of child abuse to a child protective agency.
There are a number of points to note about the new California legislation: First, ministers are mandatory reporters of child abuse. They now may face criminal liability for not reporting abuse to civil authorities. While they are free to handle such matters internally as a matter of church discipline, they must not do so in lieu of making a report to civil authorities. Second, ministers are mandatory reporters only with respect to incidents of abuse they learn of or observe in the course of their professional capacity or within the scope of their duties. Third, ministers who “acquire knowledge or reasonable suspicion of child abuse during a penitential communication” are not subject to the mandatory reporting requirements. The statute provides a definition of the critical term “penitential communication.” Fourth, the statute defines the term “clergy member” to include “a priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized religious denomination or organization.” Fifth, the statute provides immunity from liability for ministers and other persons who report abuse. This means that they cannot be assessed civil damages for making a report, even if it later proves to be false, so long as they did not act maliciously. The statute provides for the payment of attorneys fees of up to $50,000 to defend persons who are sued for making a report under the statute. [Failure to Report Child Abuse]
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