BishopAccountability.org

Reporting abuse — the church’s blind spot

By Gregory Love, Kimberlee Norris
Church Executive
May 28, 2020

https://churchexecutive.com/archives/stop-sexual-abuse-5


When in doubt, REPORT. 

If every allegation of child sexual abuse was simply reported by church leaders to appropriate authorities, the resulting positive impact would be immeasurable.

Survivors of abuse would feel validated — by itself a significant positive outcome — pathways to healing would open, future victims would be spared and abusers would be revealed. Criminal behavior would be investigated and prosecuted, and elements of real accountability put in place. When ministry leaders simply report suspicions and allegations of sexual abuse, the church is perceived as a sanctuary where God’s love and justice are demonstrated.

Why is reporting such a stumbling block for the church?  Why is it so difficult?

Answer: ministry leaders must gain understanding and take action.

Ministry leaders MUST:

  • Understand mandatory reporting legislation.
  • Understand the limitations of ‘clergy privilege.’
  • Understand how child sexual abuse manifests in ministry environments.
  • Have the courage to take action in deeply difficult circumstances.

Understanding the Law

Every state has reporting requirements mandating reports of abuse and neglect of vulnerable populations, specifically children and minors. In addition, as of February 14, 2018, federal legislation makes every adult involved in youth sports a mandated reporter of sexual abuse, regardless of state law requirements. These state and federal laws create reporting requirements related to a variety of risks, including physical abuse, sexual abuse, emotional abuse, neglect and maltreatment and relate to specific groups of people (children, special needs and vulnerable adults). This article, though hardly comprehensive, will focus on reporting requirements related to child sexual abuse.

For additional information related to state reporting requirements, clergy privilege and addressing allegations from the past, visit https://ministrysafe.com/church-executive.

Changes in the law — trends

Reporting laws are changing. It’s critical for ministry leaders to understand evolving state law and regularly refresh their understanding of current reporting requirements.

Some common legislative trends:

Every adult is a mandatory reporter.

“In state legislation listing mandatory reporters by profession, the trend is to add clergy to that list.”

In many states, every adult is a mandated reporter of child abuse or neglect. In others, individuals required to report are listed by categories of profession or licensure (i.e., medical professionals, counselors, school personnel). The legislative trend is a removal of lists in favor of requiring all adults to report. In coming years, it is likely that every state legislature will adopt the requirement that every adult is a mandatory reporter.

Clergy are mandated reporters.

In state legislation listing mandatory reporters by profession, the trend is to add clergy to that list. Occasionally, a state law listing clergy as mandatory reporters is qualified by removing the reporting requirement related to ‘suspicions gained through protected communication.’ This exclusion is known as clergy privilege.

Clergy privilege — limitations

In the past decade, clergy of all denominations have been deeply criticized for failure to report child sexual abuse. One of the most common reasons given by clergy for failing to report relates to clergy privilege. In the United States, most jurisdictions provide that private communications to a clergy member in his or her capacity as spiritual adviser, not intended for further disclosure, are privileged. Some states limit the privilege to ‘confessions’, while others apply the privilege only if the clergy member has a duty to keep the communication secret under the discipline or tenets of the church or denomination. Conversely, some states apply the privilege to any confidential communication made to a clergy member in his or her professional character, expanding the privilege into professional services such as marriage, relationship or grief counseling.

The clash between child protection and clergy privilege is an ongoing issue for state legislatures. Clearly, protecting children from child sexual abuse is a compelling state interest — a governmental interest so important it outweighs individual rights. As such, the importance of protecting children outweighs many other rights that might conflict with this compelling interest.

The protected nature of clergy communication has been recognized for centuries, and a form of this privilege has been adopted by statute in all 50 states. The clergy-communicant (priest-penitent) privilege traces back to the Catholic Church’s Seal of Confession, entrenched in law prior to the 1066 Norman Conquest. Though diluted after the English Reformation, the U.S. Supreme Court has noted that: “… privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” The court opined that the privilege is “indelibly ensconced” in American common law. Without doubt, the privileged nature of clergy communication has recognized value. In general, clergy cannot be compelled to disclose privileged information in any governmental legal proceeding or investigation.

“If media headlines are any indication, those being prosecuted for failure to report are primarily employed by churches, camps, day care centers
and schools.”

Notwithstanding the importance of privileged communication and centuries of historical relevance, the clergy privilege clashes with many child abuse reporting statutes. Various state legislatures have clearly expressed the overriding importance of child protection. Other states have passed legislation narrowing or removing the privilege entirely where reports of child abuse are concerned. When equal expression of both interests cannot exist at the same time, child protection overrides because it is the compelling state interest.

In states where clergy privilege currently exists, the privilege is often much narrower than ministry leaders believe. Clergy privilege does not provide blanket protection over all information received by a minister. Rather, many state legislatures have redefined clergy privilege to significantly limit protected information. Others have simply removed the privilege altogether, and this is the trend.

In coming years, this trend of prioritizing child protection will continue, until clergy privilege does not exist when it conflicts with child abuse reporting requirements.

Criminal prosecution for failure to report

Every state has mandatory reporting requirements for mandated reporters, and failure to report a suspicion (or allegation) of abuse is a crime. Many state legislatures have increased penalties for failure to report, but the more noteworthy trend relates to enforcement.

After the Penn State scandal of 2011, law enforcement officials have significantly increased prosecution of ministry leaders who fail to report child sexual abuse. Our culture is angry and frustrated with repeated accounts of ministry leaders having information that remained unreported to law enforcement. As a direct result, other children were harmed. One outgrowth of this cultural frustration is a commitment on the part of law enforcement to hold ministry leaders accountable for unreported information or allegations brought to their attention. If media headlines are any indication, those being prosecuted for failure to report are primarily employed by churches, camps, day care centers and schools.

Adult-to-adult disclosures

Many adults working in child-serving ministries are familiar with reporting requirements related to an outcry from a child. Reporting requirements related to reports by an adult of past abuse (abuse which occurred as a child) create new legal territory for most ministry leaders.

In some states, legislatures have passed requirements making adult-to-adult disclosures of past child abuse subject to mandatory reporting laws. In Texas, Colorado and South Carolina, for example, certain disclosures by an adult to another adult form the basis for a mandatory report to child protective services or law enforcement. In these states, a report is required when an adult reports abuse as a child and the following criteria is met:

  • When ‘disclosure of the abuse is necessary to protect another child’ (Texas);
  • If the alleged abuser holds a position of trust or authority related to children (Colorado); or
  • If ‘another child has been or may be abused’ (South Carolina).

In the past, it would be up to the reporting adult whether he or she chose to report past abuse, largely based upon an understanding of inherent privacy interests. As state legislatures continue to prioritize child protection over the privacy rights of an adult abuse survivor, this trend will continue.




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