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The Legal Duty of Child Abuse Reporting by Members of the Clergy

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“If I suspect a child is being harmed, don’t I have a legal and moral duty to report the suspected abuse, is a question that I’m asked from time to time by various clergy members.  And does this violate the Clergy-Penitent Privilege?”  We all want to see all children safe from abuse and live by the late Reverend Dr. Martin Luther King Jr.’s quote, “For evil to succeed, all it needs is for good men to do nothing.”  But even a pastor has a duty to follow the law of our land. 

One of the most difficult facts I have to explain to my clients at times is that “morally right” and “legally right” are sometimes not the same thing.  Morally, you feel that you have a duty to report suspected abuse.  But do you legally have the right to?  When this conundrum pertains to the abuse of a child, it can create a profound ethical dilemma for the clergyman or woman who has knowledge of the abuse.

First, let’s start by examining the meaning of “child abuse.”  The statutes in Florida define child abuse as “Intentional infliction of physical or mental injury upon a child;” or “An intentional act that could reasonably be expected to result in physical or mental injury to a child;” or “Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.”  While I’m certain that similar legal definitions exist in other states, it’s first and foremost important for you to know the exact language of the definition of abuse in your state.  Furthermore, child abuse reporting laws are often amended, so it is of utmost importance for you to review the statutes that govern you and apply to your church on a regular basis.  

The bottom line is that each state and venue has laws designed to protect children from abuse by designating people in certain professions as “mandatory reporters.”  In many states, members of the clergy are mandated to report known or suspected occurrences of abuse on a minor, and they may even face criminal charges for their failure to comply with this law.  However, in some states, clergy members are exempt from alerting authorities to their suspicion or knowledge of abuse if they learned about the abuse during the course and scope of a conversation that is protected by the Clergy-Penitent Privilege.

Again, in Florida, the law defines “Clergy-Penitent Privilege” [in part] as “A confidential communication is between a member of the clergy and their parishioner, if the communication is made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline, and the communication is not intended for further disclosure.  A clergy member has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the parishioner to a member of the clergy in his or her capacity as a spiritual adviser.”  

And now that we’ve seen exactly what the law [in Florida] defines as “Clergy-Penitent Privilege,” we can see that the law did not release a member of the clergy from reporting their suspicions or knowledge of child abuse if they became aware of the abuse or possible abuse while they were acting in any other capacity of a mandatory reporter.  For example, if a father comes to you privately seeking spiritual help for his alcoholism, and in confessing how his addiction affects his life, he admits to abusing his child, you are bound by the law to keep his confidence and not reveal his admission.  But if he did not come to you seeking spiritual guidance, but rather you witness him striking his child, or you saw bruises on the child, or the child told you she was being abused, then you do have a moral and legal duty to report the abuse.  

Because of this inner struggle, too often, clergy personnel can be torn between fulfilling their legal duty to report suspected abuse and upholding their ecclesiastical obligation not to breach the confidentiality of a privileged communication with their parishioner.  They then assume that they can resolve the matter offering counseling to the abuser and the victim without getting law enforcement involved.  This is a pitfall which can carry serious legal repercussions for the clergyman or woman.  

For example, clergy personnel with knowledge or suspicion of child abuse which was obtained outside of the scope of the Clergy-Penitent Privilege and who fail to comply with their state’s child abuse reporting law may face criminal prosecution.  Furthermore, some states have adopted laws which allow victims of child abuse to sue and some courts have permitted child abuse victims to sue clergy members or the church for failing to report their abuse.

This brings us to the question of whether or not a clergy member can be held liable or reap legal ramifications if they report a suspected incident of abuse that later proves to be unfounded.  The answer is that each state grants limited immunity to those who make such a report.  States encourage abuse to be reported so they can protect their children.  Because of this immunity, clergy members or the church cannot be sued simply for notifying the appropriate authorities of their suspicions of abuse, unless such a claim was made with maliciousness and the intent to harm the person being reported.

If there arises such a time that you must report a suspected incident of child abuse, you should call your state’s Department of Children and Families to file a report.  Be prepared to identify the child, the child’s guardian(s), and the identity of the alleged abuser.  You will also be asked the age of the child, the child’s address, and the nature of the abuse.

Remember, we all have a duty to protect children from abuse.  But we also want to protect ministers within the church from legal problems arising from their reporting an alleged incident of abuse.  The best way for this to be upheld is for the church to have a written policy and procedure manual dealing with mandated reporters and how they should handle such claims.  Furthermore, mandated reporters should be educated and trained by the church how to recognize possible abuse, how to protect children, and how to report an alleged incident of abuse. Your church’s insurer may have information regarding this training.  

Taking all this information into account, it should be noted that while we discuss “Clergy-Penitent Privilege,” in many states, the term “privilege” applies only to courtroom testimony or depositions, and not to the statutory duty to report to a state agency.  The bottom line:  It’s your duty to know the current Child Abuse Reporting law in your state as well as in your church, as it pertains to you.

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Dean Burnetti is a personal injury attorney who practices law in Central Florida.  He received a Pastoral Ministries degree from Oklahoma Baptist Seminary in 1980, and he dedicates a portion of time at his law practice to assisting clergy members with legal matters involved in their service to the Lord.

*Unless otherwise noted, the legal opinions given above apply to clergy personnel in the State of Florida.  It is important to note that each member of the clergy should be aware of current laws that govern their own state.  Furthermore, the information contained herein is a legal opinion, and should not be construed as legal advice.

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Dean Burnetti is a personal injury attorney who practices law in Central Florida. He received a Pastoral Ministries degree from Oklahoma Baptist Seminary in 1980, and he dedicates a portion of time at his law practice to assisting clergy members with legal matters involved in their service to the Lord.
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