Failure to Report 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.
It is common for ministers to learn that a minor is being abused. This can occur in a number of ways, including a confession by the perpetrator, or a disclosure by a friend or relative of the victim or perpetrator. Often, ministers want to resolve such matters internally through counseling with the victim or the alleged offender, without contacting civil authorities. Such a response can have serious legal consequences, including the following: (1) Ministers who are mandatory reporters under state law face possible criminal prosecution for failing to comply with their state child abuse reporting law; (2) some state legislatures have enacted laws permitting child abuse victims to sue mandatory reporters for failing to report child abuse; and (3) some courts have permitted child abuse victims to sue mandatory reporters for failing to report child abuse.
As a result, it is imperative for ministers to be able to answer the following questions: (1) What is the definition of reportable "child abuse" under my state child abuse reporting law? (2) Am I a mandatory reporter of child abuse? (3) What if I learn of child abuse in the course of a conversation that is protected by the clergy-penitent privilege? Am I still required to report? (4) How do I report child abuse? Each of these questions is answered below.
What is child abuse?
All 50 states have enacted child abuse reporting statutes in an effort to protect abused children and prevent future abuse. Child abuse is defined by most statutes to include physical abuse, emotional abuse, neglect, and sexual molestation. A child ordinarily is defined as any person under the age of 18 years. Some states specifically limit the definition of "child abuse" to abuse that is inflicted by a parent, caretaker, or custodian. Such a statute, if interpreted narrowly, might not require ministers and lay church workers who are mandatory reporters of child abuse under state law to report incidents of abuse inflicted by custodians, associate ministers, adolescents, or volunteer youth workers.
Who are mandatory reporters of child abuse?
All 50 states enumerate categories of persons who are under a legal duty to report abuse to designated civil authorities. In most states, such "mandatory reporters" must report both actual and reasonably suspected cases of child abuse. Failure to do so is a crime (usually a misdemeanor). Some states define mandatory reporters to include any person having a reasonable belief that child abuse has occurred. Obviously, ministers will be mandatory reporters under these statutes. The remaining states define mandatory reporters by referring to a list of occupations which generally includes physicians, dentists, hospital employees, nurses, coroners, school employees, nursery school workers, law enforcement officers, and licensed psychologists. Ministers are specifically identified as mandatory reporters under a few of these statutes. But even if they are not, they may be mandatory reporters if they fall within a listed classification, such as school or child care workers and administrators, or counselors. In summary, many ministers have a mandatory duty to report child abuse. Ministers should not assume that they have no duty to report.
Ministers who are not mandatory reporters under their state's law generally are considered "permissive reporters," meaning that they may report cases of abuse to the designated civil authorities but are not legally required to do so.
Ministers who are mandatory reporters of child abuse under state law are under a profound ethical dilemma when they receive information about child abuse in the course of a confidential counseling session that is subject to the clergy-penitent privilege. They have to choose between fulfilling their legal obligation to report, or honoring their ecclesiastical duty to maintain the confidentiality of privileged communications. A number of states have attempted to resolve this dilemma by specifically exempting ministers from the duty to report child abuse if the abuse is disclosed to them in the course of a communication protected by the clergy-penitent privilege. Other states, while not specifically excluding ministers from the duty to report, do provide that information protected by the clergy-penitent privilege is not admissible in any legal proceeding regarding the alleged abuse. Some state child abuse reporting statutes do not list the clergy-penitent privilege among those privileges that are abolished in the context of child abuse proceedings. The intent of such statutes may be to excuse ministers from testifying in such cases regarding information they learned in the course of a privileged communication.
Even if the clergy-penitent privilege applies in the context of child abuse reporting, it is by no means clear that the privilege will be a defense to a failure to report, since (1) the information causing a minister to suspect that abuse has occurred may not have been privileged (that is, it was not obtained in confidence, or it was not obtained during spiritual counseling); and (2) a privilege ordinarily applies only to courtroom testimony or depositions, and not to a statutory requirement to report to a state agency.
Unfortunately, the failure by many states to recognize the clergy-penitent privilege in the context of child abuse reporting disregards the therapeutic purpose of the privilege. Many child abusers will be discouraged from seeking spiritual counsel if the privilege does not assure the confidentiality of their communications. This will only compound the problem. If, on the other hand, the privilege were preserved, many child abusers would seek out ministers for spiritual counseling, and the underlying causes of such behavior could be isolated and in some cases corrected.
• The Arizona child abuse reporting law makes every citizen a mandatory reporter of child abuse. However, with regard to clergy, it provides that "a member of the clergy … who has received a confidential communication or a confession in that person's role as a member of the clergy … may withhold reporting of the communication or confession if the member of the clergy … determines that it is reasonable and necessary within the concepts of the religion." An Arizona court ruled that this exception did not apply to a minister with regard to a confession of child abuse since the counselee had "waived" the privilege by informing his wife of what he had disclosed to the minister. The court concluded: "The defendant's conduct shows he did not intend for his communications with the pastor to be privileged because he told his wife that he had told the pastor about the molestations. … Because the defendant's conduct was inconsistent with the maintenance of confidentiality … the defendant waived the clergyman-penitent privilege." State v. Baca, 2009 WL 5156236 (Ariz. App. 2009).
• A prosecutor in Florida sought to compel a pastoral counselor to divulge a confession of child abuse made by a counselee. The prosecutor conceded that under Florida law ministers are not required to testify about child abuse they learn of in the course of a privileged conversation, but he claimed that the clergy-penitent privilege did not apply in this case because the pastor was functioning as a "psychotherapist." The court disagreed. It noted that the counselee had sought out the pastor for spiritual counsel: "The counseling sessions were conducted either in the church itself or in an office on the church grounds. A substantial portion of the counseling sessions was devoted to prayer and to the study of the Bible." The court found no evidence that the counselee had consulted with the pastor for "secular purposes." The court further concluded that the clergy-penitent privilege was not precluded by the fact that the pastor had an advanced degree in counseling; "We are not willing to assume that a member of the clergy who has attained such an advanced degree is thereby rendered incapable of responding appropriately to a request for spiritual advice and counsel. It would be antithetical to the purpose of the clergy communications privilege if a clergy member's attainment of an advanced degree in a subject other than religion, theology, or divinity could strip the confider of the benefit of the clergy communications privilege or make another privilege applicable in its stead regardless of the confider's original purpose." Nussbaumer v. State of Florida, 882 So.2d 1067 (Fla. App. 2004).
IMMUNITY FROM LIABILITY
Every state grants legal immunity to reporters of child abuse. This means that a reporter cannot be sued simply for reporting child abuse. However, several states require that the report be based on "reasonable cause to believe" that abuse has occurred. The purpose of extending legal immunity to reporters obviously is to encourage child abuse reporting. However, several studies indicate that numerous false reports have also been encouraged. Such studies have raised serious legal questions concerning the propriety of legal immunity. One expert has observed that the many false reports "invite the intolerable situation of falsely accusing large numbers of parents of abuse." Persons who maliciously transmit false reports are subject to civil liability in most states and criminal liability in some.
How to report
Persons who are legally required to report child abuse generally make their report by notifying a designated state agency by telephone and confirming the telephone call with a written report within a prescribed period of time. The reporter generally is required to (1) identify the child, the child's parents or guardians, and the alleged abuser by name, and provide their addresses; (2) give the child's age; and (3) describe the nature of the abuse. Most states have toll-free numbers that receive initial reports of child abuse.
CRIMINAL LIABILITY FOR FAILING TO REPORT
While persons who are legally required to report child abuse are subject to criminal prosecution for failure to do so, instances of actual criminal prosecution are rare. However, some clergy have been prosecuted for failing to file a report when they were in a mandatory reporting classification and they had reasonable cause to believe that abuse had occurred. Criminal penalties for failing to file a report vary, but they typically involve short prison sentences and small fines.
• 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. People v. Prominski, 839 N.W.2d 32 (Mich. App. 2013).
• The Pennsylvania Supreme Court affirmed the felony conviction of a priest who worked in an administrative position with an archdiocese for "endangering the welfare of a child" for failing to take steps to protect children from a priest who had molested children. Commonwealth v. Lynn, 2015 WL 1888582 (Pa. 2015).
CIVIL LIABILITY BASED ON STATUTE
Eight states have enacted laws that create civil liability for failure to report child abuse. In these states victims of child abuse can sue adults who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for money damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law. A summary of these eight state laws is set forth below.
"A person required by this chapter to make a report of child maltreatment or suspected child maltreatment to the Child Abuse Hotline who purposely fails to do so is civilly liable for damages proximately caused by that failure." Arkansas Code § 12-18-206.
Any person who is a mandatory reporter of child abuse and who willfully fails to report known or reasonably suspected incidents of abuse "shall be liable for damages proximately caused thereby." Colorado Statutes § 19-3-304(4)(b).
"Any person, official, agency or institution, required … to report a suspected case of child abuse who knowingly fails to do so or who knowingly interferes with the making of such a report … is civilly liable for the damages proximately caused by such failure or interference." Iowa Code § 232.75.
"A person who is required by this act to report an instance of suspected child abuse or neglect and who fails to do so is civilly liable for the damages proximately caused by the failure." Michigan Compiled Laws § 722.633.
"Any person, official, or institution required by law to report known or suspected child abuse or neglect who fails to do so or who prevents another person from reasonably doing so is civilly liable for the damages proximately caused by such failure or prevention." Montana Code § 41-3-207.
(6) New York
"Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure." New York Social Services Law § 420.
"Whoever violates division (A) of this section [i.e., mandatory child abuse reporters] is liable for compensatory and exemplary damages to the child who would have been the subject of the report that was not made. A person who brings a civil action or proceeding pursuant to this division against a person who is alleged to have violated division (A)(1) of this section may use in the action or proceeding reports of other incidents of known or suspected abuse or neglect, provided that any information in a report that would identify the child who is the subject of the report or the maker of the report, if the maker is not the defendant or an agent or employee of the defendant, has been redacted." Ohio Revised Code § 2151.421(N).
(8) Rhode Island
"Any person, official, physician, or institution who knowingly fails to perform any act required by this chapter or who knowingly prevents another person from performing a required act shall be civilly liable for the damages proximately caused by that failure." Rhode Island General Laws § 40-11-6.1.
Key point. Persons who are mandatory child abuse reporters in Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio and Rhode Island can be sued by victims of child abuse for failure to comply with state child abuse reporting requirements. These lawsuits may be brought in some states many years after the failure to report. It is possible that other state legislatures will enact laws giving victims of child abuse the legal right to sue mandatory reporters who failed to comply with their reporting obligations. It is also possible that the courts in some states will allow victims to sue mandatory reporters (and perhaps those who are not mandatory reporters) for failing to report child abuse even if no state law grants them the specific right to do so. These potential risks must be considered when evaluating whether or not to report known or suspected incidents of child abuse.
CIVIL LIABILITY BASED ON COURT RULINGS
Several courts have refused to allow child abuse victims to sue ministers on the basis of a failure to comply with a child abuse reporting law. A few courts have reached the opposite conclusion.
A few courts have ruled that clergy who are mandatory child abuse reporters under state law can be personally liable for monetary damages for failing to report abuse.
• An Indiana appeals court ruled that an adult who had been abused as a minor could sue his pastor on the basis of negligence for failing to report the abuse. The court concluded, "[The pastor] knew of the alleged abuse and could have reasonably foreseen that it would continue absent adult intervention. In addition, there is a genuine issue of material fact as to whether [he] enjoyed a special relationship with [the victim]. When the level of interaction or dependency between an abused child and an adult results in a special relationship, the adult necessarily assumes a greater responsibility for that child. The special relationship imbues to the child a sense of security and trust. For the child, the stakes are high. For the adult, making a good faith report to a local child protection service is neither burdensome nor risky. In such circumstances, the adult is committing an even greater disservice to the child when the adult fails to make a report of the alleged abuse." J.A.W. v. Roberts, 627 N.E.2d 802 (Ind. App. 5 Dist. 1994).
• The Maine Supreme Court ruled that a religious organization could be sued by a victim of child molestation on the ground that it knew of the molestation but failed to report it to civil authorities. The court concluded, "If a religious organization knows or has reason to know that a member of its clergy has a propensity to sexually abuse children, the First Amendment is not necessarily violated if the civil law imposes on the organization a duty to exercise due care to protect children with whom the organization has a fiduciary relationship…. [The victim's] claim that the diocese learned of the priest's propensity to sexually exploit and abuse young boys, but failed to report him to law enforcement officials and then concealed the information from the parishioners, and the public, stated a claim upon which relief can be granted." Fortin v. Roman Catholic Bishop of Portland, 871 A.2d 1208 (Me. 2005).
Several courts have ruled that clergy and others who are mandatory reporters of child abuse cannot be subject civil liability for failing to report unless the child abuse reporting law specifically creates this basis of liability.
- The Iowa Supreme Court ruled that a priest was not legally responsible for damages suffered by a victim of child abuse as a result of his decision not to report the abuse to civil authorities. The court noted that the priest was not a mandatory child abuse reporter under state law and as a result had no duty to report the abuse even if he suspected it. This case demonstrates that clergy who are not mandatory reporters, and who fail to report an incident of child abuse, will not necessarily be liable for the victim's injuries. Wilson v. Darr, 553 N.W.2d 579 (Iowa 1996).
- A Louisiana court ruled that a priest who learned of a case of child abuse in the course of counseling with the victim was not a mandatory reporter of child abuse under state law and was not subject to civil liability for failing to report the abuse to civil authorities. Parents of Minor Child v. Charlet, 135 So.3d 724 (La. App. 2013).
- The New Hampshire Supreme Court ruled that church leaders who failed to report allegations of child abuse could not be sued by the victims on the basis of their failure to report. The court conceded that the reporting law specifies that "any priest, minister, or rabbi or any other person having reason to suspect that a child has been abused or neglected shall report the same in accordance with this chapter." However, the court concluded: "[The reporting law] did not give rise to a civil remedy for its violation. Failure to comply with the statute is a crime and anyone who knowingly violates any provision is guilty of a misdemeanor. The reporting statute does not, however, support a private right of action for its violation. Even assuming, without deciding, that the elders had an obligation to report suspected child abuse to law enforcement authorities, the plaintiffs have no cause of action for damages based on the elders' failure to do so. Accordingly, we need not decide whether the church elders qualify as clergy for purposes of the religious privilege." Berry v. Watchtower Bible and Tract Society, 879 A.2d 1124 (N.H. 2005).
- A Texas court ruled that ministers who are mandatory child abuse reporters under state law cannot be sued by child abuse victims on account of their failure to report. The court concluded that the state child abuse reporting law is a criminal statute and that "nothing in the statute indicates that it was intended to create a private cause of action." Marshall v. First Baptist Church, 949 S.W.2d 504 (Tex. App. 1997).
- A Washington state court ruled that the state child abuse reporting law did not give victims of abuse a right to sue a church for monetary damages as a result of a minister's failure to report abuse. Doe v. Corporation, 167 P.3d 1193 (Wash. App. 2007).
- A federal court in Washington ruled that a mandatory child abuse reporter's failure to report the abuse of a minor by a church worker could result not only in criminal liability for the reporter, but also civil liability for the reporter and his employing church. The court conceded that the reporting statute did not explicitly authorize civil lawsuits for failure to report, but ruled that such a right could be "implied" from the statute. Fleming v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 WL 753234 (W.D. Wash. 2006).
DISCLOSURE OF REPORTERS' IDENTITIES
Some church leaders are reluctant to report known or suspected cases of child abuse due to a concern that the state will disclose their identity to the alleged molester. In fact, most state child abuse reporting laws prohibit the disclosure of a reporter's identity to the alleged molester. Some states permit the disclosure of the reporter's identity to other state agencies, or a prosecuting attorney. In addition, most states do not require reporters to divulge their identity. A few states do require mandatory reporters to identify themselves when they report child abuse, but in most of these states the reporting law prohibits the disclosure of the reporter's identity to the alleged molester.
LIABILITY OF CHURCHES FOR A MINISTER'S FAILURE TO REPORT CHILD ABUSE
A few churches have been sued by child abuse victims as a result of a pastor's failure to report child abuse. This basis of liability has generally been rejected by the courts, as illustrated by the following cases.
- A federal appeals court ruled that a church was not liable for a minister's acts of child molestation on the basis of a failure to comply with the state child abuse reporting law since ministers were not mandatory reporters at the time of the abuse and the church had no reason to suspect that the minister was engaging in such acts. Hartz v. Diocese of Greensburg, 94 Fed.Appx. 52 (3rd Cir. 2004).
- A Minnesota court ruled that a failure by church leaders to report known cases of child abuse as required by state child abuse reporting law did not expose the church to liability. The court concluded that a state child abuse reporting law, which requires ministers and other "mandatory reporters" to report known or reasonably suspected incidents of child abuse, "does not create a private cause of action for violation of its reporting requirements or create a duty which could be enforced through a common-law negligence action." Therefore, the plaintiffs' claims had to be rejected. Meyer v. Lindala, 675 N.W.2d 635 (Minn. App. 2004).
Steps Clergy Should Take after Receiving an Allegation of Child Abuse
Clergy who learn of allegations of child abuse should consult with a local attorney and address the following questions:
- Am I a mandatory or a permissive reporter under state law?
- If the allegations are true, do they constitute child abuse as defined under state law? Remember, in some states the definition of child abuse is limited to abuse inflicted by a parent or person responsible for a child's care.
- Do I have reasonable cause to believe that abuse has occurred? Be sure to interpret this broadly. An alleged offender's denial of any wrongdoing does not preclude reasonable cause. Remember, offenders typically deny any wrongdoing.
- Did I receive the information in the course of spiritual counseling? If so, does the clergy-penitent privilege protect me from disclosing this information? In a few states, it does.
- How severe was the abuse? Evaluate the severity of the alleged abuse and the possible existence of other victims of the same perpetrator.
- Did the alleged abuse involve pedophilic behavior (sexual contact with a pre-adolescent child)? If so, respond aggressively since pedophilia is considered to be incurable and many pedophiles have hundreds of victims over the course of a lifetime.
- Do I have any risk of civil liability under state law if I choose not to report the abuse? It is possible that abuse victims will be permitted to sue clergy who fail to report (even if they are not mandatory reporters) if their injuries are aggravated and perpetuated because of the failure to report.
- Should I candidly (but anonymously) discuss the available evidence with the state agency that receives child abuse reports to determine whether the agency believes that a report should be filed?
- Should I try to persuade the informant to report the abuse? If the informant is unwilling, offer to accompany him or her to the police station or state agency that receives reports of abuse. If this does not work, then ask for the informant's permission to file a report yourself.
- Can child abuse be reported to law enforcement officials in my state? Some states permit this. If you are in such a state, and you have a law enforcement officer in your congregation, consider reporting to that person.