When Does the Clergy-Penitent Privilege Exempt Reporting Child Abuse?

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, but some states exempt them from the reporting obligation if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. This generally refers to communications, in confidence, with a minister in the course of spiritual counsel.

This article explores a decision by the Montana Supreme Court regarding how it interprets the state’s mandatory child abuse reporting law with respect to the clergy-penitent privilege. The court reversed a lower trial court’s $35 million judgment against a church, whose elders decided not to report allegations of sexual abuse by a step-father in the congregation. The court indicated the clergy-penitent privilege exception contained in the state’s abuse-reporting law applied to the church.

Nunez v. Watchtower Bible & Tract Society, 2020 MT 3 (2019)

In 1998, one of three siblings told an elder in her church that her step-father had inappropriately touched and fondled her when she was a child. The elder directed the victim to two other church elders who dismissed her accusations on the grounds that they lacked a confession or a “second witness”—which elders required to substantiate a report of abuse before taking actions against the accused—and there was therefore nothing that could be done. Without recourse, the victim returned home, where her step-father’s abuse escalated to include numerous incidents of rape. His abuse continued until she was old enough to leave home.

In 2004, another sibling told a church elder that the step-father had sexually abused him as a child. Pursuant to the “two-witness” rule, the elder obtained a signed letter from another sibling corroborating the allegations and detailing the step-father’s sexual abuse throughout her childhood. The elder contacted the national denomination with which the church was affiliated and spoke with an attorney in the legal department. The attorney advised him that Montana law did not require him to report the abuse to local authorities. Having received this advice, the elder did not contact the local police to report the abuse.

Instead, three elders formed a “judicial committee” and confronted the step-father about the allegations. After a hearing, the committee believed the victims’ accounts.

Thereafter the committee disfellowshipped the step-father, banished him from the congregation, and informed the congregation detailing the events leading to the step-father’s expulsion. Nevertheless, the step-father requested the local elders to reinstate him to the congregation; a year later they granted his request.

In 2016, two victims (the “plaintiffs”) sued the church for damages stemming from its failure to report the step-father to the authorities. Among other theories, they alleged that the church was negligent per se under Montana’s mandatory child abuse reporting statute. The negligence per se doctrine makes a defendant liable if its actions violate a statute and the violation led to a plaintiff’s injuries. The trial court agreed that the church was responsible for the victims’ injuries on this basis and awarded one of the victims $4 million in compensatory damages and $31 million in punitive damages. The church appealed, claiming that it had no duty to report the abuse.

The Montana child abuse reporting law requires certain professionals and officials to report child abuse to the Department of Public Health and Human Services when they “know or have reasonable cause to suspect, as a result of information they receive in their professional or official capacity, that a child is abused or neglected by anyone.” Clergy are among the professionals required to report under the statute. However, the reporting law exempts clergy from the reporting mandate in some case: “A member of the clergy or a priest is not required to make a report under this section if the communication is required to be confidential by canon law, church doctrine, or established church practice.”

The defendant church claimed that it was excepted from the general mandatory reporting statute pursuant to this exception. The plaintiffs insisted that the clergy exemption did not apply “because the record shows that the church did not in fact keep the report confidential and because church doctrine imposes no requirement of confidentiality.”

The state supreme court reversed the trial court’s judgment in favor of the plaintiffs. It concluded:

This case is relevant to church leaders because it directly addresses the role of the clergy-penitent privilege with respect to child abuse reporting laws. Leaders must be aware of who may claim the clergy-penitent privilege. Leaders also must be aware when the privilege may be waived.

Leaders also must be aware of potential civil liability that may arise for failing to report. In this case, the Montana Supreme Court concluded that the church and its clergy were not subject to civil liability for failing to report the plaintiffs’ abuse. Recognition of civil liability would require action by the state legislature.

In many states, clergy who are mandatory reporters, and who fail to report abuse, may be personally liable to victims of abuse assuming that no exception exists. This liability is based on either statute or judicial precedent.

Like the Montana Supreme Court ruling addressed in this article, 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 in other states have reached the opposite conclusion.

Lastly, leaders must note any potential criminal liability for mandatory reporters who fail to report abuse.

The issues raised in this article are covered in greater detail in Richard Hammar’s article, “Child Abuse Reporting and the Clergy Privilege.”