Child Abuse, Confession, and Mandated Reporters

By Common Consent [Salt Lake City UT]

February 1, 2024

By Sam Brunson

Yesterday, Harrisburg, PA’s local ABC affiliate reported that Pennsylvania police had charged a local stake president of being aware of, but not reporting, child sexual assault allegations. Allegedly, the stake president knew of the abuse as early as October 2020, and appears to have learned about it from both the victim and the perpetrator (who was, himself, a local church leader). Under Pennsylvania law, clergy are “mandated reporters,” required to report suspected child abuse where they have reasonable cause to suspect that it’s happening. Failure to report is a third-degree felony in Pennsylvania, and people convicted of third-degree felonies face up to seven years’ imprisonment.

Allegations that church leaders mishandled accusations of child abuse are, unfortunately, nothing new. And my cobloggers and I have written a fair amount about abuse and the church’s reaction to it.[fn1] But until we repent and get it right, I’m afraid we’re going to have to keep returning to questions of mandated reporters.

This isn’t my area of expertise, but I’ve glanced through the literature, and there’s no clear consensus about whether, from a policy perspective, expansive mandated reporter laws are good for children. In fact, most people I’ve read are at least marginally skeptical of them, for a couple big reasons. The first is, they tend to be harmful to poor and nonwhite families. Because a good portion of what mandated reporters report is “neglect.” But often what neglect looks like is a mom who works two jobs and leaves her slightly-too-young child at home alone. A mandated reporter find out and reports mom. And suddenly, DCFS[fn2] swoops in, the family gets put into the system and separated, and that almost certainly does more harm than being left alone for a couple hours a day.

Also, the more mandated reporters you have, the more reports you have. Even trained, mandated reporters are not necessarily experts in the signs of child abuse—the number of inaccurate accusations may rise, making it harder to sort through for the accurate reports. And bad actors can weaponize abuse reports to attack people. Even if they’re ultimately absolved, the process can sometimes be the punishment.

So mandated reporters aren’t a perfect system. That said, a lot of the problems go away when the perpetrator or the victim tells you that they are abusing/being abused. And honestly, most of the time, that’s what happens in the publicized cases that involve the church: either the victim told a church leader that they were being abused or the abuser confesses that he is abusing children. And child sexual abuse is, frankly, less squishy than “neglect.”

So, while it would be great to see evidence that mandated reporting laws help victims of child sexual abuse, most of the issues researchers have raised about mandated reporting laws don’t seem to apply in this context. That is, requiring mandated reporters to report child sexual abuse doesn’t intuitively seem to do any harm to children; by contrast, not reporting potentially significantly harms children.

So why does the church work so hard to try to prevent bishops and stake presidents and other local church authorities from reporting child sexual abuse? Honestly, I don’t know. Maybe it’s looking to a maximalist version of religious liberty, where the state can’t tell it to do even things that are good? Maybe it’s standing in solidarity with the Catholic church, which has a absolute confessional seal, one which we don’t share? Maybe for other reasons?

Whatever the reason, at this point it’s getting beyond time to switch our mindset. Instead of going in with a default of not reporting, we should make our default to abide by mandated reporting statutes. A bishop should, in every circumstance, report to the proper authorities when an abuser confesses abuse and when a victim comes to him alleging abuse.

Not doing that does a ton of harm, on a ton of levels. Most immediately, it hurts the child who is or was being abused. The abuse may continue. The refusal to act sends a message that the victim is unimportant (or is disbelieved). The refusal makes it possible for the abuser to abuse other children in the future.

This harm to children should be enough. If we have one single guiding moral principle, it should be to protect children. But the harm goes beyond children. This stake president is facing up to seven years in prison. Even if the church pays for his legal defense, and even if he’s acquitted, the process of being arrested and prosecuted is, as I said above, part of the punishment. By putting lay leaders in a position to hear confessions but preventing them from reporting, we’re risking their liberty. We’re risking their consciences.

And frankly, it’s bad for the church. The church has an increasingly well-deserved reputation for not taking the actions necessary to address child abuse among our ranks. That’s not a reputation that has served the Boy Scouts or the Catholic Church well; it’s one we would do well to get in front of by actively addressing the problem.

The down sides? They’re limited; the biggest one I can think of would be if, in fact, mandated reporter statutes on the margin are more harmful than helpful to children. And if the church thinks that they are, it can and should absolutely support research on the question! More knowledge is always better than less.

But can the church disclose? After all, in most states, the clergy-penitent privilege is held by the penitent; for clergy to disclose it would seem to require the penitent’s permission.

But that’s probably not a problem here: not every communication with clergy is protected by privilege. One of the common requirements is that the confession be confidential. And this is an opening for the church on two fronts. First, the church can get ahead of the problem by declaring that church leaders who hear confessions of child abuse will report that information to the required state authorities. That wrecks any reasonable expectation of confidentiality. And beyond that, courts have explained that in “determining what is confidential, courts must defer to churches.” If the church says that the confession of child abuse is not confidential under LDS church policy, then, courts cannot second-guess that.

And if I’m wrong? Would the church face liability if it disclosed confessions to the government? Almost certainly not. Even if clergy-penitent privilege applies, one New York court has convincingly explained that statutory privileges (like the clergy-penitent privilege) are merely rules of civil procedure, and that they don’t give rise to liability. Rather, if a statement from a penitent to clergy can’t be admitted into evidence, the court will prevent it from being admitted into evidence, but neither the clergymember nor the church would face any financial liability.

Again, maybe mandatory reporting isn’t the ideal solution (though also again, the arguments against it seem much less convincing when it comes to a perpetrator confessing or a victim looking for help). And that’s a policy argument that belongs to the legislature. But I can’t find any court decision that says clergy have a religious liberty excuse from reporting abuse where they are mandated reporters. And I further can’t think of any reason that the church shouldn’t have its bishops and other leaders comply with mandated reporter requirements (and, for that matter, report even where they’re not required to). Doing so would be good for abuse victims, good for church leaders, good for the church itself, and, in general, good for a more just world.

[fn1] See, e.g., hereherehere, and here. I know I’m missing at least one post I wanted to link to, but I can’t find it and can’t remember which of us wrote it.

[fn2] I know, where you are, you probably call it “CPS.” But in Chicago, “CPS” is Chicago Public Schools; in Illinois, the “Department of Children and Family Services” investigates child abuse.