Confidentiality and Child Abuse: Church and State Collide
by Jeffrey Warren Scott
Mr. Scott is assistant pastor of Grace Temple Baptist Church in Waco, Texas. This article appeared in the Christian Century, February 19, 1986, p. 174. 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.
In 1984, John Mellish, pastor of the Margate Church of the Nazarene, was sentenced to 60 days in a Florida jail for refusing to reveal the substance of a penitential conversation with a parishioner who had admitted to sexual abuse of a child. After a night in jail, he was released on bail pending appeal. Some time later, Florida law changed and his sentence was overturned.
The Mellish case highlights a growing concern that clergy confidentiality may be in danger as the nation’s concern over child abuse increases. Although this issue has received little attention, it seems inevitable that mandatory reporting laws will become a battleground for the conflicting interests of church and state. Approximately 35 states have statutes requiring clergy to report even the suspicion of child abuse or neglect regardless of the ramifications. Failing to do so subjects clergy to civil or criminal penalties. The Family Code of Texas is typical of these state statutes. "A person commits an offense," the code reads, "if the person has cause to believe that a child’s welfare has been or may be further adversely affected by abuse or neglect and knowingly fails to report in accordance with Section 34.02 of this Code" (Section 34.04) This is augmented by another section that describes who is exempt from the provisions:
In any proceeding regarding the abuse or neglect of a child or the cause of any abuse or neglect, evidence may not be excluded on the ground of privileged communication except in the case of communications between attorney and client [Sec. 34.07].
Several phrases in these sections merit careful scrutiny. The first passage requires a person not only to report child abuse, but also to report child neglect. Thus, if a single mother works to support her family and must leave her children unattended for a few hours after school, it could be construed as neglect and must be reported. Similarly, welfare mothers who habitually run low on food during the last week of the month would have to be reported to the authorities for child neglect. If the law were strictly followed, the amount of reporting that would be required of a minister in a poor congregation would be staggering.
Second, the statute requires anyone with "cause to believe" that neglect or abuse has occurred or may occur to make a report. Thus, even if a minister is not positive that abuse or neglect has occurred, he or she must report a suspicion.
Notice also that only the attorney-client relationship is exempt. Husbands and wives are required to turn each other in; doctors must report on their patients; and ministers are required to report on their parishioners, even if the information was learned in counseling or confession.
Finally, notice that the code requires the minister to disclose any information on suspected child abuse or neglect in "any proceeding." It follows that the minister may be forced to violate the sanctity of the confessional by testifying at the police station, in a pretrial hearing, in court, before a grand jury or even before the legislature.
The effect of Texas’s typical law is clear. The minister must not only testify about suspected or actual child abuse or neglect, but he or she must take the initiative in reporting those suspicions. Thus ministers are being asked to violate a sacred and moral trust to volunteer information about people who have come to them in confidence for help.
One must also understand the potential for backlash from the betrayed party. The suspected abuser -- who was reported by his or her minister -- may well take out his or her anger on the innocent child. If the state’s investigation does not turn up enough evidence to make a case, the suspected abuser may retaliate by causing further injury to the child. Any help and protection the minister could have offered has been greatly undermined by such codes.
Besides the practical objections to mandatory child abuse reporting laws, there is a constitutional objection. Mandatory reporting laws forcing the disclosure of confidential penitential information must be seen as a violation of the free exercise clause of the First Amendment. In 1972, the Supreme Court declared in Wisconsin v. Yoder that the state violates free-exercise rights if it infringes upon a sincerely held religious practice in such a way as to affect its exercise. Such an infringement is permissible only when the state has compelling public interest, and even then the state must act in the least intrusive manner. Mandatory reporting laws clearly fail all three tests.
First, spiritual counseling and confession clearly are sincerely held religious practices and are integral to the church’s ministry. As early as 554 A.D., priests who disclosed confessions were severely punished (William Harold Tiemann and John C. Bush, The Right to Silence: Privileged Communications and the Law [Abingdon, 1983], p. 35) By the close of the ninth century, priests revealing the matter of a confession were deposed and exiled for life (p. 36) In the Catholic tradition, confession is seen as a sacrament that conveys grace.
Second, the mandatory child abuse reporting statutes also fail the Wisconsin v. Yoder tests because they affect religious practice. If clergy are forced to reveal a confession, people will refrain from penance or counseling. This effect was noticed as early as the ninth century by the archbishop of Reims, who said, "There is nobody who would not hesitate to utter his sins to his prelate if he feared that he would be shamed or exposed" (John T. McNeill and Helena M. Gamer, Medieval Handbooks of Penance [Columbia University Press, 1938]. p. 409) Knowing that his or her confession of child abuse or neglect will be reported, the offending party will not make confession or seek counseling. Thus the law prevents some people from getting needed help, and this neglect may be damaging both to the child and to society as a whole. If confession and guidance are seen as sacraments, then the state’s action in keeping people from making a free confession actually keeps them from receiving grace, and could arguably affect their very salvation.
Wisconsin v. Yoder does allow the state to affect the free exercise of religion if there is a compelling state interest. Even then, however, the state must act in the least restrictive manner. There is no doubt that the state has a legitimate place in ensuring the safety of children. That legitimate interest does not, however, necessitate broadly altering the free exercise of religion. Surely other ways exist to detect and curb child abuse and neglect without violating religious freedom. The state could obtain the information it needs from sources other than the minister, and these sources could be tapped without violating religious freedom. Teachers, day-care operators and film developers are much better sources for such information (see Susan A. Collier, "Reporting Child Abuse: When Moral Obligations Fail," Pacific Law Journal [October 1983], p. 182) Until these mandatory child-abuse disclosure laws are removed from the books or modified to exclude the clergy-penitent relationship, there is no reason why more ministers could not be imprisoned. Indeed, the Texas attorney general handed down a legal opinion last summer stating that state law required him to prosecute clergy and church workers who failed to report suspicion of child abuse or neglect.
If the state is allowed to insert itself into the confessional in order to gain information on child abuse, then how can the state be prevented from also demanding information from clergy on other crimes such as murder or conspiracy? These offenses are equally harmful to human life and society in general. Opening the door of the confessional to the state only invites further abuses of religious liberty.
For the sake of the children and for the protection of religious liberty, the church must make every effort to amend the current mandatory child-abuse disclosure laws. Until such changes are achieved, clergy should make every effort to maintain the therapeutic relationship with the suspected abuser, while working to ensure the child’s safety. All means of counseling and spiritual guidance should be used to help the offender, and he or she may even be encouraged to seek other professional help. But clergy should not violate their sacred and moral trust by reporting the suspected offender.