Failure to Report Child Abuse
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 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
All fifty states have enacted child abuse reporting statutes in an effort to protect abused children and prevent future abuse. Most statutes contain the following provisions: (1) a definition of child abuse, (2) a list of persons who are under a legal duty to report, (3) elimination of various “privileges” against disclosing confidential communications, (4) immunity of the reporter from legal reprisal, and (5) penalties for failure to report.1
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. A typical statute defines child abuse as “any physical injury, sexual abuse, or emotional abuse inflicted upon a child other than by accidental means by those responsible for his care, custody, and control, except that discipline, including spanking, administered in a reasonable manner shall not be construed to be abuse.”2 It is very important to recognize that some states specifically limit the definition of “child abuse” to abuse that is inflicted by a parent or other person legally responsible for the minor's care. Such a statute, if interpreted narrowly, might not require clergy to report incidents of abuse inflicted by teachers, child care workers, custodians, other ministers, and youth workers—even if they otherwise are under a mandatory duty to report child abuse under state law.
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. The designated categories of reporters generally include physicians, dentists, hospital employees, nurses, coroners, school employees, nursery school workers, law enforcement officers, and licensed psychologists. Many states add any other person with responsibility for the care of children—meaning that most adults are “mandatory reporters” of child abuse whatever their occupation. In several states, persons not having a mandatory reporting status are considered “permissive reporters” and they may, but are not legally required, to report cases of abuse to the designated civil authorities.
Ministers are listed among those professions having a mandatory duty to report known or reasonably suspected cases of child abuse in only a few states.3 Nearly half the states impose a mandatory duty to report on anyone having knowledge or a reasonable belief that abuse has occurred, and clergy obviously would be under a legal duty to report in these states as well. In the remaining states, clergy may be under a duty to report if they fall within another classification of mandatory reporters, such as school or child care workers and administrators. In summary, many clergy have a mandatory duty to report child abuse. Clergy should not assume that they have no duty to report.
What about the clergy--penitent privilege? As noted in chapter 3 The Clergy Penitent Privilage, clergy in all states cannot be compelled to disclose in a court of law information shared with them in confidence in their capacity as spiritual advisers. Could not clergy defend a failure to report by asserting that the information leading them to suspect that child abuse had occurred was communicated to them in confidence and in the course of spiritual counsel? Four states specifically affirm the clergy--penitent privilege in the context of child abuse reporting,4 and four states specifically abolish it.5 Many states generally abolish all privileges (except the attorney--client privilege) in the context of child abuse reporting, and some state laws do not clearly affirm or abolish the clergy--penitent privilege. See Clergy-Penitent Privilage for a summary of the law of each state on this important issue. Even if the clergy--penitent privilege is not abolished by state law 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 in a criminal or civil proceeding against the minister, since (1) the information causing a minister to suspect that abuse has occurred may not have been privileged (i.e., 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 elimination or inapplicability of 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. A few states, recognizing that the elimination of the privilege in the context of child abuse reporting may have been counterproductive, have affirmed the privilege.6
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 or is imminent.7 Persons who knowingly transmit false reports are subject to civil liability in most states and criminal liability in some.
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.8 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.”9
Persons who are legally required to report 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. 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 typically involve short prison sentences and small fines.
In a significant ruling, 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.10 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 $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. Merely concluding that the mandatory reporting requirement does not apply in this instance does not of itself prevent voluntary reporting of suspected or actual abuse to secular authorities. . . . [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].11
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.
Of even greater significance than criminal liability is the potential civil liability for failing to report. To illustrate, assume that a minister is apprised during a counseling session that a young girl is being sexually abused by her step--father, and that the minister decides not to file a report with the state. If the abuse continues, and the girl later discovers that the minister knew of it but failed to act, it is possible the girl could sue the minister for negligent infliction of emotional distress and perhaps other theories of liability. Such a prospect is particularly distressing since (1) the minister potentially would be liable whether or not he or she had a mandatory duty to report under state law, and (2) the “statute of limitations” (i.e., the time limit for filing a civil lawsuit) ordinarily does not even begin to run until a minor victim reaches the age of majority, and in some cases not until the victim is aware of the psychological or emotional damages—which might be many years after reaching the age of majority. In other words, the risk of civil liability may continue for many years. These are very important factors to consider in deciding whether or not to file a report. Clergy should be aware that a few states have adopted statutes specifically providing for civil liability against persons who knew of cases of abuse but who failed to report.12 Even without such a statute, clergy face potential civil liability.
Victims who sue clergy for failing to report child abuse face certain legal defenses and challenges. The potential difficulty of prevailing in such lawsuits is demonstrated by a Florida case. The case involved a lawsuit by two child abuse victims against a psychiatrist for his alleged failure to report their physical and emotional abuse.13
The minors sued their father's psychiatrist, alleging that he knew that his patient had abused his daughters, that he failed to report the abuse to state authorities as required by law, and that his failure to report caused the children to suffer continued abuse and injury. A state appeals court acknowledged that state law requires many categories of professionals (including psychiatrists) to report “known or suspected child abuse or neglect,” and imposes criminal penalties for failure to do so. However, the court observed that the reporting law said nothing about victims being able to sue persons who fail to report, and it refused to create a new theory of liability. In fact, it stated that the “increasing complexity” of legislation and the “much higher volume of litigation” required the courts to refrain from creating new theories of liability unless a statute specifically provides for them.
It observed that the Florida legislature “has had ample opportunity to broaden the penalty for failure to report” child abuse by allowing children to sue persons who fail to report. As a result, the court rejected the daughters' attempt to sue the psychiatrist for injuries they allegedly suffered because of his failure to report. A dissenting judge argued that the daughters should have been permitted to sue the psychiatrist. He maintained that “our jurisprudence rests on the principle that for every wrong there is a remedy,” and that the purpose of the child abuse reporting law was sufficiently broad and important that private lawsuits should be encouraged rather than discouraged. This case provides some indication that civil lawsuits against clergy and other church staff members who fail to report incidents of child abuse may not be allowed by the courts, despite the fact that the victims continue to suffer abuse or molestation because of the failure to report. Certainly it is too early to make such a prediction at this time, but the Florida case at least indicates that the civil courts will not automatically recognize such lawsuits.
Many states exempt from the definition of child abuse a parent's refusal, based on religious convictions, to consent to the administration of medical treatment to his or her child.14 Such exemptions ordinarily provide, however, that they are not to be construed to prevent a court from ordering medical treatment when a child's health requires it.
In summary, a minister who receives information that leads him or her to believe that a child may be the victim of abuse should immediately consult with a local attorney to (1) review applicable state reporting obligations; (2) determine whether there is “reasonable cause to believe” that abuse in fact has occurred; (3) determine whether the definition of “child abuse” under state law is limited to abuse inflicted by parents or legal guardians (as is true in some states); (4) assess the availability of the clergy--penitent privilege; (5) evaluate the severity of the alleged abuse and the possible existence of other victims of the same perpetrator; and (6) evaluate the risk of civil liability under state law if the victim's injuries allegedly are aggravated and perpetuated because of a failure to report. In some cases, it is also helpful to candidly (but anonymously) discuss the available evidence with the state agency that receives child abuse reports to determine whether the agency believes that a report should be filed. Clergy who determine that a report should be made may (1) disclose their identity when making the report; (2) disclose their identity and request that their names not be disclosed to the alleged offender or anyone else; or (3) make the report anonymously. Clergy who reveal their identity when making a report must recognize that they may be called upon as witnesses in the event of a criminal prosecution. In order to avoid public disclosure of the fact that they filed a report, some clergy make their reports anonymously. The disadvantage of this procedure is that there is no record that the minister in fact filed a report. This increases the risk of civil liability if the victim later sues the minister for failing to report, since the minister probably will be unable to prove that he or she in fact filed the “anonymous” report. An alternative would be to make an anonymous report from an attorney's office who later could confirm the fact that the anonymous report was filed by the minister.
For related information on this topic see the following articles: