Application of Child Abuse Reporting Laws to Ministers and Lay Church Employees

By Richard R. Hammar, J.D., LL.M., CPA

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Article summary. Every state has a child abuse reporting law requiring designated persons to report known or reasonably suspected incidents of child abuse to a designated state agency. This feature article summarizes the current child abuse reporting laws of half the states and addresses the application of such laws to ministers and lay church employees. In the next issue of this newsletter, the laws of the remaining states will be summarized.

• Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

It is common for ministers to learn that a minor is being abused. This can occur in a number of ways, including a confession by the perpetrator, or a disclosure by a friend or relative of the victim or perpetrator. Often, ministers want to resolve such matters internally through counseling with the victim or the alleged offender, without contacting civil authorities. Such a response can have serious legal consequences, including the following: (1) Ministers who are mandatory reporters under state law face possible criminal prosecution for failing to comply with their state child abuse reporting law; (2) some state legislatures have enacted laws permitting child abuse victims to sue ministers for failing to report child abuse; and (3) some courts have permitted child abuse victims to sue ministers for failing to report child abuse.

As a result, it is imperative for ministers to be able to answer the following questions: (1) What is the definition of reportable "child abuse" under my state child abuse reporting law? (2) Am I a mandatory reporter of child abuse? (3) What if I learn of child abuse in the course of a conversation that is protected by the clergy-penitent privilege? Am I still required to report? (4) How do I report child abuse? Each of these questions is answered in the table that accompanies this article, based on the current child abuse reporting laws in all 50 states.

what is child abuse?

All fifty states have enacted child abuse reporting statutes in an effort to protect abused children and prevent future abuse. Child abuse is defined by most statutes to include physical abuse, emotional abuse, neglect, and sexual molestation. A child ordinarily is defined as any person under the age of 18 years. Some states specifically limit the definition of "child abuse" to abuse that is inflicted by a parent, caretaker, or custodian. Such a statute, if interpreted narrowly, might not require ministers and lay church workers who are mandatory reporters of child abuse under state law to report incidents of abuse inflicted by custodians, associate ministers, adolescents, or volunteer youth workers.

who are mandatory reporters of child abuse?

All fifty states enumerate categories of persons who are under a legal duty to report abuse to designated civil authorities. In most states, such "mandatory reporters" must report both actual and reasonably suspected cases of child abuse. Failure to do so is a crime (usually a misdemeanor). Some states define mandatory reporters to include any person having a reasonable belief that child abuse has occurred. Obviously, ministers will be mandatory reporters under these statutes. The remaining states define mandatory reporters by referring to a list of occupations which generally includes physicians, dentists, hospital employees, nurses, coroners, school employees, nursery school workers, law enforcement officers, and licensed psychologists. Ministers are specifically identified as mandatory reporters under a few of these statutes. But even if they are not, they may be mandatory reporters if they fall within a listed classification, such as school or child care workers and administrators, or counselors. In summary, many ministers have a mandatory duty to report child abuse. Ministers should not assume that they have no duty to report.

Ministers who are not mandatory reporters under their state law generally are considered "permissive reporters," meaning that they may report cases of abuse to the designated civil authorities but are not legally required to do so.

Ministers who are mandatory reporters of child abuse under state law are under a profound ethical dilemma when they receive information about child abuse in the course of a confidential counseling session that is subject to the clergy-penitent privilege. They have to choose between fulfilling their legal obligation to report, or honoring their ecclesiastical duty to maintain the confidentiality of privileged communications. A number of states have attempted to resolve this dilemma by specifically exempting ministers from the duty to report child abuse if the abuse is disclosed to them in the course of a communication protected by the clergy-penitent privilege. Other states, while not specifically excluding ministers from the duty to report, do provide that information protected by the clergy-penitent privilege is not admissible in any legal proceeding regarding the alleged abuse. Some state child abuse reporting statutes do not list the clergy-penitent privilege among those privileges that are abolished in the context of child abuse proceedings. The intent of such statutes may be to excuse ministers from the testifying in such cases regarding information they learned in the course of a privileged communication.

Even if the clergy-penitent privilege applies in the context of child abuse reporting, it is by no means clear that the privilege will be a defense to a failure to report, since (1) the information causing a minister to suspect that abuse has occurred may not have been privileged (that is, it was not obtained in confidence, or it was not obtained during spiritual counseling); and (2) a privilege ordinarily applies only to courtroom testimony or depositions, and not to a statutory requirement to report to a state agency.

Unfortunately, the failure by many states to recognize the clergy-penitent privilege in the context of child abuse reporting disregards the therapeutic purpose of the privilege. Many child abusers will be discouraged from seeking spiritual counsel if the privilege does not assure the confidentiality of their communications. This will only compound the problem. If, on the other hand, the privilege were preserved, many child abusers would seek out ministers for spiritual counseling, and the underlying causes of such behavior could be isolated and in some cases corrected.

immunity from liability

Every state grants legal immunity to reporters of child abuse. This means that a reporter cannot be sued simply for reporting child abuse. However, several states require that the report be based on "reasonable cause to believe" that abuse has occurred. The purpose of extending legal immunity to reporters obviously is to encourage child abuse reporting. However, several studies indicate that numerous false reports have also been encouraged. Such studies have raised serious legal questions concerning the propriety of legal immunity. One expert has observed that the many false reports "invite the intolerable situation of falsely accusing large numbers of parents of abuse." Persons who maliciously transmit false reports are subject to civil liability in most states and criminal liability in some.

how to report

Persons who are legally required to report child abuse generally make their report by notifying a designated state agency by telephone and confirming the telephone call with a written report within a prescribed period of time. The reporter generally is required to (1) identify the child, the child's parents or guardians, and the alleged abuser by name, and provide their addresses; (2) give the child's age; and (3) describe the nature of the abuse. Most states have toll-free numbers that receive initial reports of child abuse.

criminal liability for failing to report

While persons who are legally required to report child abuse are subject to criminal prosecution for failure to do so, instances of actual criminal prosecution are rare. However, some clergy have been prosecuted for failing to file a report when they were in a mandatory reporting classification and they had reasonable cause to believe that abuse had occurred. Criminal penalties for failing to file a report vary, but they typically involve short prison sentences and small fines.

civil liability based on statute

A few states have enacted statutes that create civil liability for failure to report child abuse. In these states, victims of child abuse can sue adults who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for money damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law.

• Key point. Persons who are "mandatory" child abuse reporters in some states can be sued by victims of child abuse for failure to comply with state child abuse reporting requirements. These lawsuits may be brought in some states many years after the failure to report. It is possible that other state legislatures will enact laws giving victims of child abuse the legal right to sue mandatory reporters who failed to comply with their reporting obligations. It is also possible that the courts in some states will allow victims to sue mandatory reporters (and perhaps those who are not mandatory reporters) for failing to report child abuse even if no state law grants them the specific right to do so. These potential risks must be considered when evaluating whether or not to report known or suspected incidents of child abuse.

civil liability based on court rulings

Several courts have refused to allow child abuse victims to sue ministers on the basis of a failure to comply with a child abuse reporting law. A few courts have reached the opposite conclusion.

Example. A California appeals court upheld the conviction of two pastors for failing to report an incident of child abuse. A girl was sexually molested by her stepfather and informed two pastors of her church who also served as president and principal of the church-operated school that she attended. The pastors did not report the abuse to civil authorities, even though as school administrators they were mandatory child abuse reporters, because they wanted to handle the matter within the church. They viewed the matter as "a pastoral one" involving the girl's inability to forgive her stepfather. The pastors also insisted that they considered the stepfather's actions to be a sin rather than child abuse, and that as pastors they were required to follow the scriptures concerning the discipline of a fellow Christian. A jury found the pastors guilty of violating the state child abuse reporting law, and a state appeals court upheld the convictions. The court rejected the pastors' claim that their conviction amounted to a violation of the first amendment guaranty of religious freedom by forcing them to report incidents of abuse rather than "handling problems within the church." The court concluded, "The mere fact that a [minister's] religious practice is burdened by a governmental program does not mean an exception accommodating that practice must be granted. The state may justify an inroad on religious liberty by showing it is the least restrictive means of achieving some compelling state interest. Here, if [the pastors] are held to be exempt from the mandatory requirements of the [child abuse reporting law] the act's purpose would be severely undermined. There is no indication teachers and administrators of religious schools would voluntarily report known or suspected child abuse. Children in those schools would not be protected. The protection of all children cannot be achieved in any other way." People v. Hodges, 13 Cal. Rptr.2d 412 (Cal. Super. 1992).

Example. An Indiana appeals court ruled that an adult who had been abused as a minor could sue his pastor on the basis of negligence for failing to report the abuse. A minor (the "victim") was sexually abused by his foster father and a number of other adults. When he was an adult, the victim sued a minister who had knowledge of the abuse but failed to report it to the authorities. He claimed that the minister was legally responsible for his injuries on the basis of a negligent failure to report. The court noted that negligence consists of the following elements: a duty to exercise reasonable care with respect to another, a breach of that duty, and injury to the other. In determining whether or not one has a duty to exercise reasonable care with respect to another, the court considered three factors - the existence of a "special relationship," the foreseeability of injury, and public policy. The court concluded that it often will be foreseeable that a victim of child abuse will suffer further injury if the abuse is not reported. It also conceded that public policy does not support the imposition of legal liability on adults who fail to report incidents of child abuse absent a state law creating such liability. In short, the second factor often supports the recognition of a duty, while the third factor often does not. This makes the first factor (the existence of a special relationship) determinative. The court acknowledged that no satisfactory definition of a "special relationship" exists. However, it concluded that such a relationship may have existed between the victim and the pastor as a result of the following allegations made by the victim: (1) he met the pastor when he was fourteen years of age; (2) over the next four years he spoke with the pastor more than fifty times; (3) he sought help from the pastor concerning the sexual abuse he was suffering from his foster father and others; and (4) the pastor did provide some counsel to him regarding his abuse. The court concluded, "[The pastor] knew of the alleged abuse and could have reasonably foreseen that it would continue absent adult intervention. In addition, there is a genuine issue of material fact as to whether [he] enjoyed a special relationship with [the victim]. When the level of interaction or dependency between an abused child and an adult results in a special relationship, the adult necessarily assumes a greater responsibility for that child. The special relationship imbues to the child a sense of security and trust. For the child, the stakes are high. For the adult, making a good faith report to a local child protection service is neither burdensome nor risky. In such circumstances, the adult is committing an even greater disservice to the child when the adult fails to make a report of the alleged abuse." J.A.W. v. Roberts, 627 N.E.2d 802 (Ind. App. 5 Dist. 1994).

Example. The Iowa Supreme Court ruled that a priest was not legally responsible for damages suffered by a victim of child abuse as a result of his decision not to report the abuse to civil authorities. A child (the victim) and her parents met with their parish priest on a number of occasions for family counseling. The priest was not a licensed counselor. The victim did not tell the priest that her father had sexually abused her but did tell him that he had "hurt" her. The physical and sexual abuse of the victim stopped when her father left home when she was in eighth grade. The victim attempted suicide a month later. The victim later sued her former priest and church. She claimed that the priest failed to report her abuse to the civil authorities, and that as a result the abuse continued and her injuries were aggravated. She conceded that the priest was not aware that abuse had occurred, but she insisted that he should have been aware of the abuse based on her statement to him that her father had "hurt her." A trial court dismissed the claim against the priest on the ground that he was not a mandatory child abuse reporter under state law and as a result had no duty to report the abuse even if he suspected it. The state supreme court affirmed the trial court's decision. This case demonstrates that members of the clergy are not necessarily mandatory child abuse reporters under a state law that makes "counselors" mandatory reporters. Also, it illustrates that clergy who are not mandatory reporters, and who fail to report an incident of child abuse, will not necessarily be liable for the victim's injuries. Wilson v. Darr, 553 N.W.2d 579 (Iowa 1996).

Example. A Texas court ruled that ministers who are mandatory child abuse reporters under state law cannot be sued by child abuse victims on account of their failure to report. A 12-year-old boy was sexually molested by the children's music director at his church. At first, the victim told no one. However, over the next few years the victim told 5 pastors in his church about the molestation. Although pastors are "mandatory reporters" of child abuse under Texas law, none of them reported the allegations to civil authorities or to the victim's parents. The victim sued his church when he was an adult. He claimed that the church was responsible for his injuries because of its "inadequate response" to his "cries for help," and because of the failure by the 5 pastors to report the abuse to civil authorities. The court concluded that the church was not liable for the victim's injuries on account of the 5 pastors' failure to comply with the state child abuse reporting law. The 5 pastors in this case were mandatory reporters under Texas law, and the victim claimed that their failure to report his allegations of abuse made them and the church legally responsible for his injuries. The court disagreed, noting that the state child abuse reporting law is a criminal statute and that "nothing in the statute indicates that it was intended to create a private cause of action." Marshall v. First Baptist Church, 949 S.W.2d 504 (Tex. App. 1997).

Example. The Washington state supreme court ruled that an ordained minister could not be prosecuted criminally for failing to file a report despite his knowledge that a child was being abused. The minister was informed by a female counselee that her husband had sexually abused their minor child. The minister discussed the matter with both the husband and daughter in an attempt to reconcile the family, but filed no report with civil authorities within 48 hours, as required by state law. The minister was prosecuted and convicted for violating the state child abuse reporting statute. He received a deferred sentence coupled with one year's probation and a $500 fine, and in addition was required to complete a "professional education program" addressing the ramifications of sexual abuse. The minister appealed his conviction, and the state supreme court reversed the conviction and ruled that the state child abuse reporting statute could not apply to clergy acting in their professional capacity as spiritual advisers. The court noted that the state legislature's 1975 amendment of the Washington child abuse reporting statute deleting a reference to "clergy" among the persons under a mandatory duty to report known or reasonably suspected cases of child abuse "relieved clerics from the reporting mandate. Logically, clergy would not have been removed from the reporting class if the legislature still intended to include them." The court further observed, "Announcing a rule that requires clergy to report under all circumstances could serve to dissuade parishioners from acknowledging in consultation with their ministers the existence of abuse and seeking a solution to it. . . . [But] simply establishing one's status as clergy is not enough to trigger the exemption in all circumstances. One must also be functioning in that capacity for the exemption to apply. . . . Thus we hold as a matter of statutory interpretation that members of the clergy counseling their parishioners in the religious context are not subject to the reporting requirement [under the state child abuse reporting law]." However, the court concluded that two "religious counselors" who were not ordained or licensed ministers could be prosecuted criminally for failure to report incidents of abuse that had been disclosed to them. The court concluded that the criminal conviction of the non-clergy "religious counselors" did not violate the first amendment guaranty of religious freedom. State v. Motherwell, 788 P.2d 1066 (Wash. 1990).

Example. A federal district court in Wisconsin ruled that a church was not legally responsible for the molestation of a young boy by a teacher at the church's school. It rejected the victim's claim that the church was responsible on the basis of a failure to report the abuse to civil authorities as required by state law. The court conceded that the school administrator had "reasonable cause to suspect" that one of his teachers had committed child sexual abuse and was obligated to alert the authorities under the state child abuse reporting law. However, the court emphasized that the church's breach of its duty to report the suspected abuse to civil authorities could not have been the cause of the victim's injuries since the victim could not prove that any of the acts of molestation occurred after the time a child abuse report should have been filed. Kendrick v. East Delavan Baptist Church, 886 F. Supp. 1465 (E.D. Wis. 1995).

table summarizing state child abuse reporting laws

The table accompanying this article summarizes the application of the child abuse reporting laws in 25 states to ministers and lay church workers. The next issue of this newsletter will contain a table summarizing the laws of the remaining 25 states. Before using the table, review the following notes:

(1) Most states classify persons as mandatory or permissive reporters of child abuse. Mandatory reporters are legally required to report known or reasonably suspected cases of child abuse, and they face criminal penalties (normally a misdemeanor) for failing to do so. Permissive reporters are persons who are not mandatory reporters. They are permitted to report, but are not legally required to do so.

(2) Most states do not list "ministers" as mandatory reporters. However, this does not mean that ministers are not mandatory reporters - ministers are mandatory reporters in any state that makes "any person" a mandatory reporter of child abuse. In other states, ministers may be mandatory reporters if they perform the duties of one of the specified categories of mandatory reporter. For example, a minister may be a mandatory reporter because he or she is a teacher or administrator at a church-operated school, or serves as a counselor.

(3) All states define a "child" as a person under the age of 18.

(4) Mandatory reporters who know of an incident of child abuse, or who have reasonable cause to believe that such an incident has occurred, are subject to criminal penalties if they do not comply with their state's child abuse reporting law. Generally, the penalty for noncompliance is a misdemeanor.

(5) Most states provide child abuse reporters with limited immunity from liability in the event that a report of child abuse proves to have been false or is not substantiated. Limited immunity means that the reporter cannot be liable unless the report was made with malice.

(6) In many states, mandatory reporters are required to report child abuse only if they learn of it in the course of performing their professional duties.

(7) No state clergy-penitent privilege statute or rule specifies that the privileged nature of a communication exempts a minister from complying with child abuse reporting requirements.

(8) Several state child abuse reporting laws provide that no child who is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church shall, for that reason alone, be considered to be an "abused" child.

(9) State laws are subject to change, and so this table should not be relied upon without the advice of an attorney familiar with local law.

Table: Application of Child Abuse Reporting Laws to Ministers and Lay Church Workers