Pastor, Church & Law

Key point 3-08.08. Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.

Ministers who are mandatory reporters of child abuse under state law face a profound ethical dilemma when they learn of child abuse in the course of a confidential counseling session that is protected by the clergy-penitent privilege. They must 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 exempting clergy from the duty to report child abuse if the abuse is disclosed to them in the course of a privileged conversation. Other states, while not specifically excluding clergy 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.

Relatively few of a minister’s conversations are protected by the clergy-penitent privilege. In most states, ministers who are mandatory child abuse reporters must report information they receive during such conversations even if such a duty would not exist had the conversation been privileged.

While no court has addressed the issue directly, it is possible that clergy having religious opposition to disclosing confidences may be able to defend a failure to report a confession (or indication) of child abuse on the basis of the First Amendment’s guaranty of religious freedom. This position would be the strongest for those clergy whose churches or denominations have taken specific positions prohibiting disclosure of confessions or confidential communications as a matter of ecclesiastical doctrine or practice. Even here, it is possible that a civil court would conclude that the state’s interest in obtaining information about child abuse is so compelling that it supersedes the constitutional guaranty of religious freedom. Generally, religious freedom may be limited or abridged by a state law or practice that is supported by a compelling governmental interest.¹⁴⁵ See generally chapters 12-13, infra.One commentator noted that the First Amendment guaranty of religious freedom outweighs the state’s interest in uncovering cases of child abuse if a minister’s failure to disclose is based on the established dogma or practice of his or her church or sect.¹⁴⁶ Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion, 71 MINN. L. REV. 723 (1986).

The issue of child abuse reporting is discussed fully in chapter 4.

It is common for ministers to learn of child abuse in the course of counseling. Should they report the abuse to civil authorities, or respect the confidentiality of the conversation? This is a difficult question. The following considerations may help in reaching an informed decision:

• Are you a mandatory reporter under your state’s child abuse reporting law? A mandatory reporter has a legal obligation to report known or reasonably suspected incidents of child abuse to designated civil authorities. Ministers are mandatory reporters in many states. Be sure to check your state’s child abuse reporting law.
• Does the clergy-penitent privilege apply? In many states, clergy who are mandatory reporters of child abuse are excused from the duty to report if they learn of the abuse in the course of a conversation that is protected by the clergy-penitent privilege. Did you learn of child abuse in the course of a privileged conversation? If so, you may be excused from the duty to report. Be sure to check your state’s child abuse reporting law to see if such an exception exists.
• If you are not a mandatory reporter. If you are not a mandatory reporter you cannot be criminally liable for failing to report child abuse. However, this does not necessarily relieve you of civil liability. As a result, you still may want to report the abuse.
• Moral obligation. Be sure to consider the moral as well as the legal issues. What are the consequences if you elect not to report the child abuse? Is it possible that the victim will continue to be abused? If so, do you have a moral obligation to intervene?

Case study. A Texas court noted that the duty to report child abuse in Texas “is sweeping and makes no exceptions for clergy, physicians, mental health professionals or teachers.” The statute reads simply: “A person having cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect by any person shall report [the suspected abuse].” The court noted that a minister is more “likely to learn of child abuse, which he is obligated by law to report,” given the nature of the profession. However, the court also observed that the Texas child abuse reporting law does not contain any exemption for ministers who receive reports of abuse in the context of confidential counseling sessions. In other words, the clergy-penitent privilege is presumably no defense to a failure to report.¹⁴⁷ Texas Department of Human Services v. Benson, 893 S.W.2d 236 (Tex. App. 1995). The court refused to address this question directly since the minister had not asked it to do so.