The confidentiality of clergy communications is key for many churches and religious organizations. We previously addressed the topic of when conversations of clergy might fall under the clergy privilege. Here we look at the intersection between clergy privilege and clergy's status as statutorily mandated reporters of suspected child abuse. Pastors, priests, and ministers—and their churches—must understand how these often conflicting roles will be treated by civil courts.
Clergy as Mandatory Reporters of Child Abuse: A Clash of Duties?
Every state has a list of individuals who are statutorily required to report to authorities any time they have a reasonable suspicion that a child is being abused. For some states, everyone must report. Failure to report when you are a mandatory reporter comes with serious consequences, ranging from criminal prosecution to personal liability for damages that may arise out of the failure to report.
In the majority of states, clergy are listed among those mandatory reporters. According to the Child Welfare Information Gateway—a federal resource on state statutes regarding child welfare—as of August 2015, 28 states included members of the clergy as mandatory reporters: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Illinois, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Vermont, West Virginia, and Wisconsin.1
In many states, if clergy learn of abuse through a confidential communication that would be protected by clergy privilege, they are not required to report. In some states, however, the interaction between mandatory reporting requirements and clergy privilege is far from clear. This tension can create a clash of duties: on one hand, a minister may have a clear religious duty to refrain from disclosing confidential communications learned in that context; on the other, the minister may also have a secular duty to report suspected child abuse or neglect to authorities.
A Recent Louisiana Supreme Court Case, Mayeux v. Charlet, Addresses the Clash of Duties
Enter the case of Mayeux v. Charlet, the latest installment that addressed this issue head-on. This case has been up and down the Louisiana state court system for several years, and presents a difficult case of child sexual abuse. The alleged victim in the case reported to her priest during confession that she had been sexually abused by a church parishioner. She alleged that the priest responded by essentially telling her to keep silent. She claims she continued to suffer abuse at the hands of the parishioner.
The alleged victim and her family later filed suit against the parishioner, and also against the particular priest she had confessed to and the Baton Rouge Diocese of the Catholic Church. During the course of the litigation, the Church filed a motion to attempt to prevent any evidence being presented of what was said during the alleged victim’s confessions. Because the Church argued that what was said in confession could not be disclosed, there could be no liability connected with the priest’s failure to report the abuse.
Whether clergy privilege affected the mandatory reporting requirement was litigated in the Louisiana state courts, resulting in several published opinions that created much uncertainty. Several years later, the last order from the trial court declared the Louisiana child abuse reporting statute unconstitutional to the extent that it required the priest to violate the seal of confession and report suspected child abuse learned in that forum.
Reviewing that order, the Louisiana Supreme Court disagreed that the constitutional issue needed to be reached. Instead, it found a way to reconcile Louisiana statutory law to hold that priests, though listed as mandatory reporters in general, are not mandatory reporters when administering the Sacrament of Penance (confession). In doing so, the court preserved the right of Catholic priests to abide by the religious requirement that confession must be held in confidence. At least in Louisiana, priests need not worry about whether they will be required to violate the seal of confession upon the threat of criminal prosecution, civil liability, or contempt if they learn of suspected child abuse during those times.
Every State Has a Different Rule: Understanding Clergy Privilege in Your State
While clergy in Louisiana are now on solid ground to assert the position that communications made during confession should remain held in confidence, every state is different. Many states—Colorado as an example—have explicitly noted in their reporting statutes that the mandatory reporting requirements do not apply if clergy privilege is in play. But as the case from Louisiana demonstrates, arguments about statutes that seem clear may often end up looking more complicated in litigation.
In addition, some states have not addressed whether, if faced with a clash of duties, a religious duty should win out over the secular one. As previewed by the trial court in the Mayeux case, for states that have a religious freedom restoration act or RFRA-type law, a stronger argument exists that the religious duty should tip the scales. But in states where religious freedom has less protection, the question may be closer.
If a question remains about whether clergy privilege affects a reporting requirement, best practice is to first check your specific jurisdiction’s statute and any case law interpreting it or the clergy privilege. When in doubt, obtain legal advice. Also, remember that when clergy learn about abuse through another avenue that is not a privileged communication, reporting the abuse is likely to be required.
Without reporting abuse, how will children be protected? Churches vary a lot in what their doctrine holds privileged. Some churches may wish to clarify that certain conversations are not privileged or confidential when it comes to child abuse reporting—for instance, counseling sessions outside the confessional. Depending on each organization’s religious doctrine, clergy may consider encouraging the parishioner to report the abuse. A victim or even an offender can be encouraged to report. Clergy may investigate further to see if non-privileged information is available. Spiritual discipline may also be imposed. While keeping confession confidential is sacrosanct in churches with this doctrinal position, the church should continue to fulfil its role in protecting children.
1Child Welfare Information Gateway, Clergy as Mandatory Reporters of Child Abuse and Neglect, available at https://www.childwelfare.gov/pubPDFs/clergymandated.pdf. NOTE: Statutes change frequently and this list should not be relied on as a definitive statement of the law in each jurisdiction. In addition to this list, several other states require ANY person who suspects child abuse or neglect to report it, which may include clergy as well.
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- Screening and Caring for Children: Part 3
- Colorado Supreme Court Examines the Scope of Physician-Patient Privilege, Part Two
- Screening and Caring for Children: Part 1
- Colorado Supreme Court Examines the Scope of Physician-Patient Privilege, Part One
- Screening and Caring for Children: Part 2, A Different Angle on Child Safety