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Could Hearing a Confession Cost You $10,000?

By Raul Rivera

As a pastor or ministry leader, are you familiar with your state’s laws concerning your responsibility as a mandated reporter? How about the relationship between your state’s mandatory reporting laws and the clergy-penitent privilege? If not, then these are things that you will want to research after reading this story.

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.

To better understand how this relates to you as a pastor and church leader, consider the following story involving two elders of a Delaware church who were informed of a sexual relationship between an adult and juvenile member of the church.

Are all confessions protected by the clergy-penitent privilege?

In 2013, a juvenile member of a church in Delaware informed his mother that he was involved in a sexual relationship with an adult female church member. Shortly after, the juvenile and his mother met with two church elders to inform them of the situation. The church elders then spoke with the adult member who confirmed the relationship had occurred.

Although both the juvenile and adult member of the church were excommunicated from the congregation, the church elders did not report the incident according to the procedures established by Delaware’s child abuse reporting law. 

As a result, the Department of Justice sought a civil penalty against each elder “not to exceed $10,000, costs, expenses and attorney’s fees incurred awarded to the state, and ‘such other and further relief as the Court deems just and proper.’”

Request for dismissal of civil penalties denied

In the civil suit, the state cited Delaware Code sections 903 and 904 which requires that any person who knows of or suspects child abuse to report it, and it should be reported by “contacting the Child Abuse and Neglect Line for the Department of Services for Children, Youth, and Their Families.”

The church and two elders asked the trial court to dismiss the civil penalties on the basis of Delaware Code section 909 which states, 

No legally recognized privilege, except that between attorney and client and that between priest and penitent in a sacramental confession, shall apply to situations involving known or suspected child abuse, neglect, exploitation or abandonment and shall not constitute grounds for failure to report as required by 903 of this title or to give or accept evidence in any judicial proceeding relating to child abuse or neglect. (Emphasis added.)

The Superior Court of Delaware denied the church and two elders’ motion for summary judgment. The Superior Court ruled that the clergy-penitent privilege did not protect the two elders who failed to report the child abuse.

What this means for you as a pastor or ministry leader

This case sheds light on the importance of you understanding the clergy-penitent privilege and your state’s mandatory reporting law(s).

While many ministers may be familiar with the clergy-penitent privilege, 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. Therefore, I want to use this post to explain the relationship between the clergy-penitent privilege and the responsibility of ministers as mandated reporters.

I will give you some best practice advice to consider, in case you ever learn of child abuse or neglect. However, first we will examine what you need to understand when it comes to the clergy-penitent privilege and mandated reporting responsibilities.

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What is 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. In America, the first known case of the clergy-penitent privilege 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 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? 

No, not every form of communication between a minister and a congregant is covered by the clergy-penitent privilege. There are some requirements that must be met, and they are as follows:

  1. The communication must be made in confidence.
  2. The communication must be made to a minister.
  3. The communication must be made with the purpose of seeking spiritual counsel.

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.”

The 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, lay ministers, self-proclaimed ministers, etc.

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 is 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 penitent (counselee) the ability to invoke the privilege.

Usually, the minister is able to assert the clergy-penitent privilege only on behalf of the counselee. In essence, the minister cannot invoke the privilege if the counselee wishes not to do so. Not understanding this can cause trouble for ministers as mandated reporters. 

Next, we will examine your responsibilities as a mandated reporter.

Understanding your responsibility as a mandated reporter

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 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:

  1. Ministers assume the clergy-penitent privilege applies and exempts them from mandated reporting requirements.
  2. 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/her state, then such actions as previously mentioned can result is some legal consequences. For example:

  1. Criminal prosecution: A minister who is a mandated reporter could face possible criminal prosecution for not complying with the state’s child abuse reporting laws.
  2. 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.

As you can see it is imperative that you, as a minister, understand your state’s mandated reporting laws.

Additionally, 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 a 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 it is our responsibility to love and protect children the way God loves and protects us as His children.

I think that whether or not you are a mandated reporter, best practice would be to report any 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. Therefore, one of the best things that you can do is to listen attentively and ask open-ended questions allowing them to lead the conversation.

If possible, determine what happened, where and when it happened, and by whom. Try not to 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 concerning 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 to be certain.

“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. This is especially so for ministers. 

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 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 will not regret it!

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