• Key point. Churches may reduce their risk of liability by responding to allegations of child abuse on church premises in a way that is viewed as appropriate and reasonable by the victim and the victim’s family.

The Illinois Supreme Court ruled that a church counselor could be criminally prosecuted for child molestation despite the fact that the prosecution was based in part on a pastor’s unauthorized disclosure of the incident to civil authorities. The court rejected the counselor’s argument that the abuse would never have come to the attention of the prosecutor had it not been for the pastor’s unauthorized disclosure. The court noted that the victim’s parents were so dissatisfied with the church’s response to the incident that they would have reported it to the civil authorities even if the pastor had not. The case contains some important lessons for all church leaders.

Facts

Two minor girls arrived at their church one evening for a youth activity. They came early to help prepare for the event. An adult counselor to the youth group was already present when the two girls arrived. One of the girls (the “victim”) was sexually assaulted by the counselor when he asked her to accompany him to the church basement to look for some sound equipment. Later that evening the victim reported the incident to the church’s assistant pastor. The counselor insisted that the incident was a superficial incident of fondling that lasted for only ten seconds, and had been initiated by the victim. A jury did not buy this account, and found the counselor guilty of aggravated criminal sexual abuse.

The counselor appealed his conviction, arguing that the entire prosecution should have been dismissed because it was based in part on an improper disclosure of confidential information. Following disclosure of the incident the counselor’s pastor referred him to the pastor of another church for counseling. The other pastor was also a licensed psychologist. After speaking with the counselor, the pastor was not sure whether he was required by the state child abuse reporting law to report the incident to state authorities. He called a state agency for advice, and was told that as a clergyman he was not required to submit a report but that as a psychologist he was. The Illinois statute requires psychologists, but not members of the clergy, to report instances of abuse. The pastor later submitted a report that identified the victim but did not name the offender. This report was relayed to the sheriff’s office, and ultimately on to the prosecutor.

At the counselor’s trial the court ruled that the pastor with whom he had met could not be compelled to testify to their conversations and that the pastor’s child abuse report could not be introduced into evidence. It based this ruling on the clergy—penitent privilege. But the court rejected the counselor’s argument that the entire prosecution had to be dismissed because it was based on the pastor’s improper disclosure of information he had learned in confidence during the counseling session.

On appeal, the counselor insisted that the trial court erred by not dismissing the entire prosecution. He asserted that his conversations with the pastor were protected by the clergy—penitent privilege and that the state child abuse reporting law did not require the pastor to submit a report to the state. The counselor claimed that the prosecutor would never have learned of the molestation had it not been for the improper disclosure made by the pastor.

The court’s decision

The court began its opinion by noting that “information regarding the [counselor’s] involvement in the present offenses was not secret” even if it was assumed that his conversations with the pastor were privileged and that the pastor was not required to file a report with the state. The court also pointed out that the pastor’s report did not identify the counselor by name, and that it was not until further investigation that the prosecutor learned of the counselor’s identity.

The counselor insisted that the victim and her family were willing to resolve the matter “within the church,” and would have done so had the pastor not reported the incident to the authorities. The court disagreed. It observed:

[the victim’s] father, who was a deacon in the church, acknowledged that he, as well as the others involved in this case, sought initially to resolve this problem internally, without the involvement of civil authorities. [He] also said, however, that in his own mind he kept open the possibility that criminal charges could be brought. [He] explained further that he met with … the pastor and assistant pastor of the church … several days after the incidents charged here. [He] told the two clergymen that he was very concerned about the matter, that he did not believe that the [counselor] should be associated with the youth group, and that the [the counselor], who was a church trustee, should relinquish his set of keys to the church.

[The victim’s father] testified further that he next discussed the matter with [the two ministers] several weeks later … [He] was angry that more had not been done about the situation, and he continued to insist that the [counselor] should surrender his keys to the building and adopt a lower profile in church activities.

The victim impact statement submitted by the [victim’s] parents … also shows the family’s growing sense of displeasure with their church’s response to the accusations against the [counselor]. In a joint statement, the [victim’s] mother and father said that although they had initially believed that the matter could be resolved within the confines of their church, they later became dissatisfied with what the parents believed were insufficient measures taken by the church leaders in response to the [counselor’s] misconduct. The statement explained, “It was our INITIAL intent that this matter be handled by the church, but in our opinion, it was not handled, it was ignored!” The parents expressed their surprise at what they perceived to be the church’s reluctance to make any response to the charges, and noted that the [counselor] was allowed to participate in the church youth group even after [the victim] had reported the incident to [her pastor].

In short, there was no doubt that the counselor’s misconduct would have come to the attention of civil authorities even if the counseling pastor had not reported the incident to the state. The court concluded that the counselor’s interests were adequately protected by the trial court’s exclusion of the counseling pastor’s testimony on the basis of the clergy—penitent privilege.

Application. This case is important for a couple of reasons. First, it demonstrates that persons who are charged with child abuse cannot defend themselves by arguing that the abuse would never have “come to light” had it not been disclosed to civil authorities by a pastor who learned of the abuse in the course of a conversation protected by the clergy—penitent privilege. The pastor may be prohibited from testifying in a criminal prosecution, but this does not prevent the state from prosecuting the abuser on the basis of other evidence that would have been uncovered even if the pastor had not reported the incident.

Second, and perhaps even more importantly, this case demonstrates the risks that church leaders assume in not responding to allegations of child molestation in a way that will be viewed as “adequate” by the victim and his or her family. It is clear that the victim and her parents were content to let this incident be resolved internally by the church. However, this desire evaporated because of the parents’ conviction that the church had not responded adequately to their concerns. This conviction was based on the following factors: (1) the counselor was not required to return his keys to the church building, and (2) the counselor was allowed to continue participating in the church youth group even after the victim had reported the incident of molestation to her pastor. This is an important lesson for all church leaders. In many cases victims of sexual misconduct in the church (and their families) are willing to resolve the matter within the church-so long as they are convinced that the church is taking the matter seriously and is responding appropriately. In this case, the victim’s family were not satisfied with the response of their church in allowing an accused child molester to remain involved in youth activities and to have keys (and unrestricted access) to the church building. People v. Burnidge, 687 N.E.2d 813 (Ill. 1997). [The Clergy-Penitent Privilege , Failure to Report Child Abuse]

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