Are You a Mandated Reporter? What Every Minister Should Know
By Raul Rivera
As a minister, it is inevitable that individuals will come to you for guidance. You are looked upon as a wise and trusted person, as someone who can truly help in a time of need.
At times, what is confessed to you may be alarming. So alarming that you may wonder whether or not the authorities should be involved. But you hesitate in doing so because you want to resolve the matter internally. And then there is the simple fact that you just might not be sure of the rights, protections, or limitations you have as a minister.
Many ministers are familiar with the clergy-penitent privilege, but there is a disconnect in the understanding of their rights under the clergy-penitent privilege and their responsibilities as mandated reporters.
Some of you reading this may not even realize that your state considers you to be a mandated reporter. For that reason, I want to use this post to explain the relationship, or interplay, between the clergy-penitent privilege and the responsibility of ministers as mandated reporters.
In this post I will give you some best practice advice to consider if you ever learn of child abuse or neglect. But first, we will examine what you need to understand when it comes to clergy privilege and mandated reporting responsibilities.
Understanding the clergy-penitent privilege
The clergy-penitent privilege originated in the canon law of the Roman Catholic Church. According to canon law, a confessor (minister) is forbidden to break the seal of confession. The first known case of the clergy-penitent privilege in America happened nearly 200 years ago.
In short, the clergy-penitent privilege is the protection of the communication that takes place between you, as a minister, and your church members or other individuals. The clergy-penitent privilege is, however, limited to confidential communication.
There is more to consider when it comes to the clergy-penitent privilege besides it being limited to confidential communication. We will take a brief look at some of the specifics of the clergy-penitent privilege.
1. Is all communication between a minister and a congregant covered under the clergy-penitent privilege?
As a matter of fact, not every form of communication between a minister and congregant is covered by the clergy-penitent privilege. There are some requirements that must be met, and they are as follows:
- The communication must be in confidence.
- The communication must be made to a minister.
- The communication must be made for the purpose of seeking spiritual counsel.
Additionally, keep in mind that in addition to these requirements, every state has some version of the clergy-penitent privilege. The idea behind them all is essentially the same, but you should become familiar with your state’s statute pertaining to the clergy-penitent privilege.
2. To whom does the clergy-penitent privilege apply?
Although the name itself implies to whom the privilege extends, it is worth noting who is considered “clergy” in this instance. Many states have adopted Rule 505 of the Uniform Rules of Evidence Act, which limits the privilege of confidential communications with a “cleric”. This act defines “cleric” as “a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the individual consulting the cleric.” (emphasis added)
It is important to note that in most instances the clergy-penitent privilege will only apply to ordained ministers and not to elders, deacons, lay leaders or lay ministers, self-proclaimed ministers, etc. However, as long as the individual receiving counsel reasonably believes he is confiding in a clergy member (ordained minister), the privilege would be upheld.
Again, best practice will be to familiarize yourself with your state’s statute regarding this privilege.
3. Who may invoke the clergy-penitent privilege?
One might reasonably think the privilege lies with the clergy member. However, the vast majority of states provide the ability to invoke the privilege to the penitent (counselee). Usually, the minister is able to assert the clergy-penitent privilege only on behalf of the counselee. In essence, this means that the minister cannot invoke the privilege if the counselee wishes not to do so. Not understanding this is where ministers can find some trouble as a mandated reporter.
Next, we will examine your responsibilities as a mandated reporter.
Understanding your responsibility as a mandated reporter
All 50 states have child abuse reporting laws that designate certain professionals as mandated reporters. The term “mandated reporter” refers to one who is required by law to report reasonably suspected incidents of child abuse.
Ministers are classified as mandated reporters in many states, however some states will exempt ministers from the mandated reporting requirements if the minister learned of the abuse during the course of a conversation that is protected by the clergy-penitent privilege.
It is important for ministers to be mindful of the relationship between being a mandated reporter and the clergy-penitent privilege when it comes to child abuse. The potential issue exists when ministers do not report child abuse. This generally happens for a couple of reasons:
- Ministers assume the clergy-penitent privilege applies and exempts them from mandated reporting requirements.
- They try to resolve the matter internally with the parties involved without contacting the proper authorities.
If the minister is considered a mandated reporter in his state, then such actions, as previously mentioned, can result is some legal consequences. For example:
- Criminal prosecution: A minister who is a mandated reporter could face possible criminal prosecution for not complying with his state’s child abuse reporting laws.
- Civil liability: Courts have allowed victims of child abuse to sue ministers for failing to report child abuse (see Parents of Minor Child v. Charlet). Furthermore, some states have passed laws that allow child abuse victims to sue ministers for failing to report child abuse. For instance, Arkansas, Colorado, Iowa, Michigan, Montana, New York, and Rhode Island have enacted laws that create civil liability on those who fail to report child abuse. In these states, mandated reporters can also be sued for monetary damages by the abuse victim.
So as you can see, it is imperative that you, as a minister, understand your state’s mandated reporting laws.
Furthermore, if you are classified as a mandated reporter in your state, it is important to know how your state views the relationship between the clergy-penitent privilege and the responsibilities of a mandated reporter since many states do not allow an exception for clergy privilege.
Due to the complexity of this issue, it is advisable for you to seek qualified legal counsel from an attorney familiar with your state’s laws. Next, I want to give you some best practice advice to consider if you ever learn of child abuse or neglect.
Best practices to consider as a mandated reporter
Learning of child abuse is never easy, but how you respond to such incidents can make all the difference. Children are precious in the eyes of God, and I believe it is our responsibility to love and protect children the way God loves and protects us as His children.
In my honest opinion, I believe whether or not you are a mandated reporter, best practice would be to report any and all known instances of child abuse to the proper authorities in your state.
Below are some best practice guidelines for you to keep in mind should you ever learn of child abuse:
1. What to do:
Many ministers are not quite sure what to do when a child reports abuse to them. It usually comes as a surprise, and knowing what to do in that instance is crucial. If a child reports abuse to you, it is important that you simply listen without expressing disbelief. Children need to know that they are believed and that the abuse is not their fault. So, one of the best things you can do is to listen attentively and ask open-ended questions, allowing them to lead the conversation. If possible, try to determine what happened, where and when it happened, and by whom. Keep in mind, however, to not try and draw out the information by asking direct questions. This could potentially cause the child to close-up and stop talking. Remember, ask questions that allow the child to control the conversation and to feel safe.
2. How to report the abuse:
As previously noted, reporting laws vary by state, and who to make the report to will also vary. Some states require the report be made to child protective services or law enforcement. In addition, states vary on when the report is to be made. In most instances you should report the abuse within 24-48 hours of learning about the abuse. However, you should become familiar with your state’s child abuse reporting requirements.
“A heritage from the Lord”
Scripture tells us that “children are a heritage from the Lord, offspring a reward from Him.” (Psalm 127:3) We have a responsibility to protect children as much as we can. I believe this is especially so for ministers.
This is a tough topic to address head on, but as ministers it is necessary to be prepared for all situations and circumstances. There are so many compliance requirements for ministers and churches today that it can be easy to overlook and simply not know about all of them.
That is why it is imperative for ministers to heed the words of Jesus and to be as wise as serpents and as harmless as doves. One way to be proactive is to join us at one of our conferences for a day of impartation and empowerment. I am certain you won’t regret it!