Clergy in Kansas are not mandated reporters of child sex abuse. This bill would change that.

Topeka Capital-Journal [Topeka KS]

January 27, 2023

By Jason Tidd

A Kansas senator has renewed his push to add clergy to the list of mandated reporters of child abuse and neglect, but the lack of protection for religious confessions sets the bill up for opposition.

Sen. Tom Holland, D-Baldwin City, introduced SB 87, which requires ordained ministers to report suspected physical, sexual or emotional abuse and neglect of children.

“Our children are taught to trust in certain authority figures in their communities, because adults are supposed to speak up for children when they’ve been harmed,” Holland said. “Far too many of our faith leaders — those who are foundational to the development of our sense of self and spirituality — have violated that trust, and Kansas kids have suffered as a result of their silence.”

Clergy would join the existing list of mandated reporters that includes medical and mental health providers, teachers and school administrators, child care providers and first responders. Failure to report, interfering with a report or knowingly making a false report are all misdemeanors.

Confession would not be protected

Holland’s legislation would not exempt privileged penitential communications. Without penitential privilege, clergy who learn of suspected abuse through confession would have to choose between violating religious beliefs or violating the law. Penitential communications are already privileged in court proceedings.

The lack of such a protection could be an impediment to advancing legislation that would otherwise have greater support.

Chuck Weber, executive director of the Kanas Catholic Conference, said the group’s position has not changed since 2019 when Holland first introduced similar legislation. The Catholic Conference — as well as the Archdiocese of Kansas City in Kansas — supports making ordained clergy mandated reporters, as long as the seal of confession is protected.

The Catholic Church has argued that a priest is obligated to not reveal the contents of a confession, even if it means going to jail. Breaking the seal of confession could lead to excommunication.

In 2019, archdiocese chancellor Rev. John Riley, testified that the church is “committed to doing everything reasonably possible to prevent abuse, report suspicion of abuse, and provide ongoing awareness training and background checking,” as well as cooperating with law enforcement.

Weber also pointed to work within the Catholic Church to create a safer environment for children, including required training for clergy and other people on detecting, reporting and preventing child sex abuse.

Holland said for states that include clergy in their mandatory reporting laws, some do and some don’t protect penitential privilege. He fears the privilege would be “a back door to not reporting” that in turn discourages law enforcement from investigating.

“If we have a religious organization where this is a pervasive problem, my concern is that then the exemption becomes basically standard operating procedure where if something happens, run and go confess it, and now when the investigators come it’s like, ‘we don’t know, we’re not obligated to share that information,'” he said.

He said exempting confessions would be both a compromise and “the easy way out.”

“There are lots of stakeholders involved here,” Holland said. “It really is going to come down to will the Legislature want to try to address this, and then what is the consensus? At the end of the day, if we get something done, that’s a start.”

Kansas Senate bill follows KBI report

Holland’s renewed push comes weeks after the release of a Kansas Bureau of Investigation report into child sex abuse and coverups in the Catholic Church. Archbishop Joseph Naumann of the Archdiocese of Kansas City in Kansas requested the investigation, and former Attorney General Derek Schmidt released the KBI report on his last working day in office.

The KBI investigation identified 188 clergy suspected of committing crimes across each of the four Catholic dioceses in Kansas. The agency opened 125 criminal cases and filed 30 charging affidavits with local prosecutors.

None have been prosecuted, largely due to the statute of limitations. A handful of bipartisan lawmakers joined survivors earlier this month to push for changing the law to allow criminal prosecutions and civil lawsuits over past abuses, which SB 95 would do.

“How we fix the problem is more than just this one issue about making clergy and priests mandatory reporters,” Holland said. “You have issues about statute of limitations, which others have been trying to address as well. So there’s a number of pieces of the puzzle.”

At a news conference outside the Johnson County Courthouse, the Survivors Network of those Abused by Priests called on Attorney General Kris Kobach to publicly name the accused priests and release a more detailed report. The group also vowed to file an open records request.

Typically, prosecutors do not release information publicly on people not charged with a crime. Acting KBI director Tony Mattivi said that is why there are internal talks at the KBI and attorney general’s office about “whether it’s something we’re even allowed to do, and if we are allowed to, do we want to.”

The archdiocese previously published its own list of substantiated allegations of clergy sexual abuse of a minor.

“Make no mistake,” Holland said of the KBI report, “this is pervasive and I’m convinced it continues to occur. And it’s not just with one particular Christian faith. But it’s out there and we need to do something as a Legislature to protect Kansas kids.”

Past attempts have failed

Holland has been trying for years to require religious ministers to report suspected abuse.

He started in 2019 with SB 37, which did not have protections for penitential privilege.

“But in working in a bipartisan fashion with Republican leadership, Republican Senate leadership said basically for us to get something done here, you need to put that privilege exception into the bill,” Holland said. “And so I agreed.”

Holland then introduced a new “weaker version” of the bill, SB 218, that had protections for penitential privilege. It passed the Senate Federal and State Affairs Committee and unanimously passed the full Senate. But then it sat in the House Federal and State Affairs Committee until scheduled hearings in March 2020 were cancelled amid the COVID-19 pandemic. The bill then died in committee.

In 2021, Holland tried again with SB 75. That bill also protected penitential privilege. The bill was referred to the Senate Judiciary Committee, where it sat without a hearing for two years before it died at the end of the 2022 session.

Meanwhile, Holland attempted to force debate last year on a constitutional amendment to address the topic. The motion to withdraw resolution SCR 1624 from committee failed along party lines.

“I wanted to get people on record, because I tired of screwing around with and let them know that I’m not going away with this issue,” he said.