Every state has a child abuse reporting law that requires designated “mandatory reporters” to report known or reasonably suspected child abuse.
Ministers are mandatory reporters in many states. However, some states exempt ministers if they learned of the abuse through conversations protected by the clergy-penitent privilege—communications made in confidence during spiritual counsel.
This article explores a Montana Supreme Court decision interpreting the state’s mandatory child abuse reporting law and the clergy-penitent privilege.
Background: $35 Million Judgment Reversed
Case: Nunez v. Watchtower Bible & Tract Society, 2020 MT 3 (2019)
In 1998, one of three siblings reported to a church elder that her step-father had inappropriately touched and fondled her as a child.
- The elder directed her to two other elders.
- They dismissed her allegations, citing the lack of a confession or a second witness, which they required before taking action.
- With no church support, the victim returned home. The abuse escalated to repeated incidents of rape until she was old enough to leave.
In 2004, another sibling reported similar abuse to a different elder.
Church’s actions:
- The elder obtained a signed corroborating letter from another sibling.
- He contacted the national denomination’s legal department. An attorney advised that Montana law did not require reporting the abuse to authorities.
- Acting on this advice, no police report was made.
Instead:
- Three elders formed a judicial committee to confront the step-father.
- The committee disfellowshipped him and informed the congregation.
- A year later, the elders reinstated him into the congregation.
Lawsuit and Trial Court’s Decision
In 2016, two victims (the “plaintiffs”) sued the church for failing to report the abuse.
Legal claims:
- Alleged negligence per se under Montana’s mandatory reporting law.
- Claimed the church’s failure to report led to further abuse and damages.
Trial court outcome:
- Ruled in favor of the plaintiffs.
- Awarded $4 million in compensatory damages and $31 million in punitive damages.
- Found the church liable under the negligence per se doctrine.
The church appealed, arguing it had no duty to report under Montana law.
Montana’s Child Abuse Reporting Law
Montana’s law requires certain professionals, including clergy, to report child abuse to the Department of Public Health and Human Services.
Key exemption:
“A member of the clergy or a priest is not required to make a report if the communication is required to be confidential by canon law, church doctrine, or established church practice.”
Arguments:
- Church’s position: The exemption applied because their doctrine required confidentiality.
- Plaintiffs’ position: The exemption did not apply because the church had disclosed information and lacked a confidentiality doctrine.
Montana Supreme Court’s Decision
The Montana Supreme Court reversed the trial court’s judgment.
Key findings:
- The church’s doctrine, canon, or practice required confidentiality.
- As a result, the clergy-penitent privilege exemption applied.
- The church was not considered a mandatory reporter under Montana law in this case.
Court’s statement:
“We do not opine whether [the Legislature] could have made a different policy choice that would afford greater protection to child victims. The Legislature is the appropriate body to entertain such policy arguments.”
Relevance to Church Leaders
This case carries important lessons for church leaders:
1. Understand the Clergy-Penitent Privilege
- Know when the privilege applies.
- Understand how and when it can be waived.
2. Recognize Potential Civil Liability
- In some states, clergy who fail to report may be held personally liable—if no exemption applies.
- Liability can arise through statutes or judicial rulings.
Important:
Some courts have allowed child abuse victims to sue ministers for failure to report. Others, like Montana’s court, have not.
3. Seek Legal Guidance
- Always consult an attorney with questions about mandatory reporting laws.
- Do not rely solely on internal church procedures or assumptions.
4. Be Aware of Criminal Penalties
- In many jurisdictions, mandatory reporters who fail to report face potential criminal liability.
Final Note
Church leaders must remain informed about how clergy-penitent privilege interacts with state child abuse reporting laws to protect both their congregations and themselves.
The issues raised in this article are covered in greater detail in Richard Hammar’s article, “Child Abuse Reporting and the Clergy Privilege.”
