Confidentiality and Mandatory Reporting: A False Dilemma?
by Marie M. Fortune
Ms. Fortune works for the Center for the Prevention of Sexual and Domestic Violence in Seattle. This article appeared in the Christian Century, June 18-25, 1986, p. 582. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found atwww.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.
The existence of state laws requiring clergy to report evidence of physical or sexual abuse of children has become a source of controversy. (See, for example, Jeffery Warren Scott’s recent Century article, Confidentiality and Child Abuse: Church and State Collide," February 19.) The ethical goal of protecting children from harm appears to clash with the pastoral ethic of confidentiality. The professional ethic of confidentiality ensures that congregants or clients can share their concerns, questions or burdens without fear of disclosure. It creates a context of respect and trust within which help can be provided. The tradition of clergy confidentiality has allowed some people to seek help who otherwise might not do so out of fear of punishment or embarrassment. Confidentiality has traditionally been the ethical responsibility of professionals within their professional relationships, and is generally assumed to be operative even if a specific request has not been made by a congregant or client.
For the pastor, priest or rabbi, confidentiality has a spiritual as well as professional context. In Christian denominations, the expectation of confidentiality is tied most specifically to the act of confession. But the responsibility of the pastor or priest who hears a confession varies among denominations. For Anglican and Roman Catholic priests, confession has sacramental significance, and whatever information is revealed is held in confidence by the seal of confession, with no exceptions. The United Methodists do not view confession as sacramental, but their Book of Discipline states:
"Ministers. . . are charged to maintain all confidences inviolate, including confessional confidences." The statement by the Lutheran Church in America tries to protect the confidence of the parishioner while allowing room for the discretion of the pastor: "No minister . . . shall divulge any confidential disclosure given to him in the course of his care of souls or otherwise in his professional capacity, except with the express permission of the person who has confided in him or in order to prevent a crime" (Minutes of the United Lutheran Church in America, 22nd Biennial Convention, 1960, quoted in Seward Reese, "Confidential Communications to Clergy," Ohio State Law Journal [vol. 24 (1963) 1, p. 68).
As the Lutheran statement indicates, the clergy ethic of confidentiality must be placed in a larger ethical context. There may be, as Sissela Bok puts it, "reasons sufficient to override the force of all these premises, as when secrecy would allow violence to be done to innocent persons" ("The Limits of Confidentiality," The Hastings Center Report [February 1983], p. 26). The law itself is unclear as to the clergyperson’s duty to disclose someone’s intent to commit a crime or cause harm. Is the clergyperson who does not report the probability of a crime legally liable for the crime? Are clergypersons obliged to protect the innocent, who in this case are children?
It is useful here to make a distinction between confidentiality and secrecy. A commitment to secrecy is a commitment never, under any circumstance, to share the information in question. This commitment on the part of the priest is inherent in a sacramental confession. Confidentiality, on the other hand, means holding information in trust and sharing it only in the interest of the person involved -- with their permission, or in order to seek consultation with another professional, or in order to protect others from being harmed. The ethic of confidentiality is intended to assist people in getting help for their problems; it is not intended to prevent people from being held accountable for their harmful actions or to keep them from getting the help they need. Shielding people from the consequences of their behavior is likely to endanger others and only postpone the act of repentance that is needed.
Another ethical ‘principle that applies here is that of justice-making. Christian Scripture is very specific about responding to the sins of others. "Take heed to yourselves; if your brother sins, rebuke him, and if he repents, forgive him" (Luke 17:3) Those who sin and who harm others must be confronted with their deeds so that they might repent. Both Hebrew and Christian Scriptures are clear that repentance has to do with change: "Get yourselves a new heart and a new spin so turn and live" (Ezek. 18:31-32) In this context of accountability, justice and repentance, forgiveness and reconciliation may be possible. And repentance and reconciliation should be a minister’s primary concerns.
It is also critical to keep in mind what we know about those who sexually and physically abuse children.
• The fact of child abuse must be revealed in order for the victim and offender to be helped.
• Offenders will minimize and deny their activities.
• Offenders will continue to abuse children unless they get special treatment. And they will not be able to follow through on their good intentions or their genuine remorse without that help.
• Treatment of offenders is most effective when it is ordered and monitored by the courts.
• Clergypersons do not have all the skills and resources needed to treat offenders or to assist victims.
• Quick forgiveness of the offender is likely to be a form of cheap grace, and is unlikely to lead to repentance.
It should also be pointed out that it is actually rare for a child abuser to come forward and confess his or her sins to a pastor. What happens, in the experience of most pastors, is that a child or teen-ager who is being abused, or another parent or family member, comes in search of assistance. What is involved, then, is not a confession but a cry for help. Confidentiality is still a concern, but not in the sense of the "confessional seal." Rather, the concern is to respect the nature of the information that has been shared and to meet the particular needs of the victim.
Responding to such a situation is never easy. But there is a system of child protective services in every state to ensure that an abused child is protected and an abuser gets help. This system is no more or less perfect than the church, but it is a vital resource. The pastor needs to support the efforts of those who have been harmed to break through the veil of secrecy and get help. Though responding to the victims’ cries for help will usually involve difficult ambiguous choices, what is important is that the pastor have a clear purpose: to protect the one who has been victimized and to hold the offender accountable. Confidentiality should be seen as a means of accomplishing this end rather than a way of keeping the abuse secret and avoiding the fact of accountability.
Confidentiality should not be regarded as a sacred cow. As Bok argues: "The premises supporting confidentiality are strong, but they cannot support practices of secrecy -- whether by individual clients, institutions, or professionals -- that undermine and contradict the very respect for persons and for human bonds that confidentiality was meant to protect" (p. 30). The mandatory reporting of child abuse should be viewed in this context, rather than as a challenge to the principle of pastoral confidentiality. Mandatory reporting laws can assist clergypersons in fulfilling their responsibilities. Hence, the need for mandatory reporting and the need for pastoral confidentiality may not be as contradictory as they at first appear.