By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 2001 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 m67 c0201
A California court ruled that an associate pastor who was suspended for reporting a suspected incident of child abuse involving his senior pastor could sue his church for "retaliation." An associate pastor saw his senior pastor engage in an incident of suspected child abuse. He reported the incident to church and law enforcement officials. The associate pastor later sued the church, claiming that it "retaliated" against him for reporting the incident. Among other things, he claimed that the church relieved him of his duties; placed him on administrative leave; falsely reported to other clergy that he had committed inappropriate conduct; and demanded that he submit to a psychological evaluation. The associate pastor's lawsuit alleged that the church's actions were defamatory, and caused him emotional distress. The church claimed that its treatment of its associate pastor was protected by the first amendment guaranty of religious freedom.
clergy as mandatory child abuse reporters
The court began its opinion by observing that
while . . . civil courts may not involve themselves in
reviewing
the termination of clergy for theological or disciplinary reasons
. . .
churches and their congregations and hierarchy are as amenable as
other
societal entities to rules governing property rights, torts and
criminal
conduct. Here, the issue is whether the court may enforce the
legislature's
mandate that clergy members are not subject to sanction for making
reports
of suspected child abuse . . . . We conclude that the issues posed
by [this
lawsuit] are subject to judicial review. To hold otherwise . . .
would
be contrary to the legislative intent in amending the statute to
include
clergy within its ambit.
The court noted that the state child abuse reporting law reflects the state's compelling interest in preventing child abuse and protecting children. The objective of the reporting requirement is to identify victims and bring them to the attention of the authorities. The court stressed that the legislature
consistently has increased, not decreased, reporting
obligations
and has afforded greater, not less, protection to mandated
reporters whose
reports turn out to be unfounded. To that end, in 1996, the
legislature
[added] clergy members to those mandated to report known or
suspected instances
of child abuse to child protective agencies. In adding clergy to
the list
of mandated reporters, the legislature intended to address the
reluctance
of some religious institutions to report child abuse, to train
clergy to
recognize and address child abuse, and to afford clergy the
immunity of
mandated reporters. Section 11166, subdivision (c)(1) thus provides
in
pertinent part that "any clergy member who has knowledge of or
observes
a child, in his or her professional capacity or within the scope of
his
or her duties, whom he or she knows or reasonably suspects has been
the
victim of child abuse, shall report the known or suspected instance
of
child abuse to a child protective agency immediately or as soon as
practically
possible by telephone and shall prepare and send a written report
thereof
within 36 hours of receiving the information concerning the
incident."
The court rejected the church's claim that including clergy on the list of mandatory child abuse reporters violated the first amendment guaranty of religious freedom:
In amending the Act to include clergy members as
mandated reporters,
the legislature determined that requiring clergy members to report
suspected
cases of child abuse was necessary to further the Act's purpose of
protecting
children from abuse. . . . [T]he statute as applied does not
violate the
free exercise clause of the first amendment nor does it constitute
an excessive
government entanglement with religion. The Act clearly applies to
clergy
members, is limited in scope and furthers the compelling state
interest
of protecting children from abuse. This interest is significant and
outweighs
the burden on [the church's] free exercise rights. Moreover, [the
church],
by seeking to shield its actions from scrutiny, would prevent [the
associate
pastor] from obtaining the benefit of the protections afforded
mandatory
reporters under [the Act]. A critical component of the statutory
scheme
is to require mandatory reporting but to protect those reporters
from being
subject to any sanction for their reports. To permit [the church]
to escape
scrutiny for its actions would be contrary to the legislative
intent in
[including] clergy members as mandatory reporters.
retaliation prohibited
The California child abuse reporting statute prevents employers from retaliating against employees who report child abuse. It specifies that "[t]he reporting duties under this section are individual, and no supervisor or administrator may impede or inhibit the reporting duties, and no person making a report shall be subject to any sanction for making the report."
The court concluded that a church that sanctions or retaliates against a pastor or other employee for reporting a suspected incident of child abuse may be legally liable on the basis of intentionally inflicting emotional distress. The court noted that the intentional infliction of emotional distress consists of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by plaintiff; and (3) plaintiff's emotional distress is the result of defendant's outrageous conduct. For conduct to be "outrageous," it must "be so extreme as to exceed all bounds of that usually tolerated in a civilized community." The court concluded that the associate pastor's allegation that the church sanctioned him because he reported suspected child abuse "is clearly an act which would reasonably support a finding of outrageous conduct." Similarly, the court ruled that the church could be sued on the basis of defamation since its public comments concerning the associate pastor were "not directed to any decision by [the church] to discipline or terminate [him] but to [its] exercise of his duty as a mandatory reporter."
Application. Clergy are mandatory reporters of child abuse under the laws of 26 states (see the May-June 2000 and July-August 2000 issues of this newsletter for a review of the child abuse reporting laws in all 50 states). In several other states clergy are mandatory reporters if they are employed as teachers, school administrators, or counselors. In most of these states, clergy cannot be punished or "retaliated" against for discharging their legal duty to report a known or suspected incident of child abuse. To illustrate, assume that an adolescent female informs her youth pastor that her stepfather has been sexually abusing her. The youth pastor, who is a mandatory child abuse reporter, immediately reports this allegation to a state agency that investigates child abuse. When the church's senior pastor learns that the youth pastor reported the allegation without informing him, he dismisses the youth pastor. According to this case, the dismissal of the youth pastor could be viewed as prohibited retaliation that could expose the senior pastor and the church to liability. Conley v. Roman Catholic Archbishop, 2000 WL 1880609 (Cal. App. 2000).