http://www.denverda.org
http://www.ojp.usdoj.gov/ovc/
 

Mitchell R. Morrissey
Denver District Attorney
 
Unit 10:
 
 
Mandatory Clergy Reporting
 

Rationale
: Educate clergy and faith-oriented counselors about their legal mandates, obligations, and responsibilities with regard to reporting sexual assault, sexual abuse, child and elder abuse and domestic violence.

Format:

Video:
Victim Care: Issues for Clergy and Faith-Based Counselors
Mandatory Clergy Reporting – Lesson 10
Access via http://FCPEI.denverda.org/index.htm or
Contact Steve Siegel – 720/913-9022

Lecture:
The Law – Theology and Ethics in Union

Legal Issues

1. Child Sexual Abuse Reporting Requirements

The civic domain, through legislative action gives a great deal of attention to enacting statutes that address sexual violence – from child sexual abuse to domestic abuse (also known as intimate partner violence) as well as physical crimes against the elderly. These laws are designed to protect the victim and to hold the offender accountable.

A very important development in the last twenty years is the requirement for certain professionals to report criminal conduct. The scope of this text will address only the clergy reporting requirements regarding child sexual abuse. It is equally important to become familiar with individual state laws to determine the extent to which the legislature has addressed reporting requirements in all areas of sexual violence.

Laws designed to impose special obligations and responsibilities on a wide range of professions to report child abuse or neglect have emerged, some specifically listing “clergy members” as one of these groups For example, in Colorado, the relevant statute requires reporting child sexual abuse or neglect to law enforcement when the professional – in this case a clergy member – “has reasonable cause to know or suspect that a child has been subjected to abuse or neglect or when the professional has observed the child being subjected to circumstances or conditions which would reasonably result in abuse or neglect ...”i This level of “suspicion” is minimal – the law requires reporting as soon as you have a reasonable suspicion of neglect or abuse. A possible exception to mandatory reporting may exist when information is learned as part of a confidential communication.

Two significant public policy considerations that influence the mandatory child sexual abuse reporting are: (1) the child is unable to report the sexual abuse offense(s) in a timely manner, i.e., intimidation, fear of reprisal from family, and (2) many offenders have a history of repeating their behavior, and without intervention the offender will likely not stop his/her behavior.

Statutes regarding the clergy’s requirement to notify the authorities about suspected child sexual abuse fall within the following four broad categories, all which require reporting:ii

Some states mandate clergy reporting and permit exceptions under unique circumstances. It is important to refer to individual state statutes. Clergy are always required to report suspected or known child sexual abuse, even when the conversation is confidential or made as a privileged communication. Also common to these states is the absence of a “confessional privilege” within state law.iii This would suggest required reporting even in the instance of “confessional confidentiality” in the Roman Catholic, Orthodox, and Episcopal contexts.iv

The two largest groups of states specifically identify “clergy” as a class that is required to report child sexual abuse, but allows clergy an exemption from reporting if the information is acquired in a confidential communication.

Finally, some states do not specifically mandate clergy reporting by class. Typically these states rely upon a “catch-all” category with language similar to the following: “Any other person may report if such person has reasonable cause to believe …”v However, even in these states, clergy reporting is required.

Clergy Reporting – A Need to Act

A troubling aspect of a clergy’s role in situations involving sexual violence is the difficult decision when, or if, he/she should disclose/report the suspected crime to legal authorities. In child sexual abuse, the struggle becomes more profound. The law attempts to guide in this area, however, the reality is that the clergy’s obligations are less than clearly defined.

It is not likely that an offender voluntarily confesses their crime to a clergyperson.vi The more likely scenario is for a child or teenager (the victim) to seek assistance from clergy.

Within the many Christian denominations there is a range of interpretations and expectations about the degree of confidentiality involved in criminal situations. One view point is that the well-being of the victim takes precedence over confidentiality; while others believe in the complete sanctity of confidential communications. Still others argue that the spirit of the law should be followed instead of the letter of the law. Ultimately, each individual is faced with the ethical responsibility and decision. Each person must assess the degree of confidentiality and its binding nature.

Confidential Communications - “Secret” vs. “Confessional

A formal and informal agreement of confidentiality serves to provide a person with a safe environment in which they can express concerns, issues, problems, and sins without fearing disclosure of the conversation. Sissela Bok provides four practical reasons for confidentiality:

  • An individual’s autonomy over personal information;
  • Respect for relationships between persons and for the intimacy that comes with information shared only in a particular relationship;
  • An obligation of allegiance and support;
  • The safety of a place to disclose information which, if undisclosed, would be detrimental to society as a whole.vii

Marie Fortune offers a distinction between “secrecy” and “confidentiality” in the context of private communications. She suggests that secrecy is “the absolute promise never under any circumstances to share any information which comes to a clergyman; this is the essence of sacramental confession.” By way of example, she explains that this level of secrecy is tantamount to shielding a murderer or a sexual offender. By contrast, she proposes “confidentiality means to hold information in trust and to share it with others only in the interest of the person involved.” This encompasses sharing information with the person’s permission or to protect others from harm. She states further that a flexible interpretation of confidentiality “can be employed to determine situations where persons need protection. Confidentiality is not intended to protect abusers from being accountable for their own actions or to keep them from getting the help that they need.”

Fortune then provides a list of considerations regarding criminal behavior that are worthy of consideration when determining whether to report a situation involving sexual violence:

The offender will do it again unless given specialized treatment;

  • Offenders lie, cover up, minimize, or deny their criminal behavior;
  • Offenders are powerless to help themselves back to normal relationships, thus requiring outside intervention;
  • Treatment is most effective when ordered and monitored by the courts;
  • The cycle of secrecy must be broken;
  • Clergy do not have all the necessary therapeutic tools to effectively counsel offenders;
  • Quick forgiveness is cheap grace, but unlikely to lead to repentance.viii

Caution – Response is Critical

In the 1980’s, studies and surveys were undertaken to assess society’s perception of the role of the clergy in assisting victims of violence. Several studies found that women who were abused by their spouse reported that the assistance they sought from clergy was not fruitful because the clergy member did not understand their plight; instead of counsel about violence, they were encouraged to return home “for the sake of the family.”ix Society’s perception of the clergy’s role is confirmed through the results of one study, the results of which are summarized:x

  • 84 stated that they had confronted wife abuse in their ministry within six months prior to completing the survey;
  • 25% approved ideas which affirmed a belief that the lack of submissiveness by the wife accounted for the violence;
  • 71% would not advise a battered woman to either leave or separate immediately because of abuse;
  • 92% would never tell a battered woman to divorce her abuser;
  • 33% encouraged the wife to remain in the home until the abuse became severe;
  • 45% expressed concern that the wife not overemphasize her husband’s violence, nor use it as “a justification” for breaking the marriage commitment;
  • More than 50% expressed no concern with the lack of information or coursework available to them on the issue of spousal abuse and did not find the emotional demands of victims or their own lack of training in counseling creating problems for them in their work with victims.

While it is hoped that clergy, as well as faith leaders and counselors have increased their awareness of and sensitivity to these important issues in the last twenty years, the role of the clergy can be crucial to those affected by sexual violence. It is important that the proper (and supportive) response be made in situations where sexual violence is involved.

If reporting a criminal act is required, it should be carried out without deception. However, depending upon the situation, there are a number of options: (1) inform the offender that you need to report the information to the authorities; (2) place the victim out of harm and then advise the offender that you have reported to the authorities; (3) seek the person’s permission to notify the authorities; or (4) have the person directly report their activity to the authorities.

Do not side with the offender and neglect the victim;

  • Do not leap to conclusions about guilt or innocence;
  • Do not handle the situation alone. Regardless of good intentions, the complexities and psychological effects of sexual violence are so great that it is best to seek a team approach to handle the situation. Social workers, child protection workers, mental health professionals, law enforcement, and members of the legal profession are all resources that can be called upon to address sexual violence.

There are appropriate and helpful responses to situations involving sexual violence. The following responses are encouraged by Fortune:xi

  • Righteous anger – A hideous crime deserves a passionate reaction. Anger must find a constructive release. Jesus models this behavior when he cleared the temple of the moneychangers in an attempt to end the abuse.xii
  • Compassion for the victim – With Jesus as an example, and relying upon the Beatitudes delivered during the Sermon on the Mount (Matthew 5: 1-12), compassion should be the cornerstone of faith.
  • Advocacy for the victim – Frequently, victims feel powerless to seek justice against the offender and the system as a whole. A member of the clergy can advocate for the one who is not able to stand up for their own rights.
  • Holding the offender accountable for his/her actions - Work with the offender to address issues of guilt, restitution, repentance, understanding and forgiveness.
  • Prevention – As a leader in the community, congregants and the community as a whole can benefit by proactive involvement by clergy in prevention efforts.

The Aftermath – Healing for All

Victims

Victims of sexual violence experience a broad range of emotions. Initial feelings may include confusion, passivity, fear, and guilt.xiii Next, the victim may experience feelings of anger and perhaps a desire for revenge or retribution. Long-term effects on victims of sexual violence include guilt and serious emotional handicaps. Persons who are in a supportive role, such as clergy and faith-oriented counselors, should acknowledge and normalize the victim’s feelings of guilt and shame. Feelings of abandonment are common and assuring the victim that these are “normal” can be very helpful.xiv

Victims may have beliefs that if they had lived “good Christian lives” they would not be experiencing this suffering. Victims may have a theology which sees suffering as a consequence of sin. It is helpful to affirm the goodness of each victim, emphasizing that it was not their actions (or inactions) which caused the violence.

Finally, it is important that victims have information about the value of professional counseling. Clergy and faith-oriented counselor’s roles are not as “protector”, but rather one of support, compassion, spiritual guidance, and reassurance.xv

Families

Reactions exhibited by family members involved with incidents of sexual abuse are unpredictable.xvi

When it becomes necessary for the family to accept that a relative has committed an act of sexual violence, family members often feel a sense of responsibility for that person’s actions. This is especially relevant for parents when the spouse has sexually violated a child. There can be feelings of embarrassment, fear of social reprisal, and anger. These feelings may be directed towards both the offender and the victim.

Just as it is beneficial to the healing process that victims seek professional treatment and support, so too, is it recommended that the families of both offenders and victims seek professional help and support.

The Faith Community

The faith community is an excellent resource that can assist in the healing process, by lending support to the victim, the offender, and to their families. A simple gesture such as a meal or telephone call can make all the difference to a person in conflict. Some groups within a community may act with ambivalence because of the complicated and secretive nature of sexual abuse.

The community may have continued contact with the offender. Such contact can produce tension as the community struggles with the offender’s crime.

James and Phyllis Alsdurf define the role of the congregation: “The people of God are a major, largely untapped resource in assisting the abused and the abuser. The unspoken cry of the abuser is ‘Please help me!’ of the abused, ‘Stand by me!’ May God enable us all to respond in wisdom?”xvii

Prevention

The Role of the Faith Community

Although sexual violence is a sensitive area, it needs to be discussed frankly and openly within faith communities. Ignorance is the worst of all situations, so the topic should be addressed directly. Members of a congregation should know who is available with whom they can discuss the issue. Absolute discretion should be the priority to ensure the privacy of the victim.

Additionally, the following Scripture passages can be used to begin the discussion of sexual violence, justice, healing, forgiveness, and love: Mark 10:13-16; Romans 12:21; Luke 6:35-38; Romans 7:15; Matthew 9:9-13; Jeremiah 8:21-22; 1 John 4:19-21; and Numbers 14:18.xviii

____________________

iC.R.S. 19-3-304
iiAbrams, Norman, Addressing the Tension between the Clergy-Communicant Privilege and the Duty to Report Child Abuse in State Statutes, Boston College Law Review.
iiiKelley, Dean M., Tell All or Go to Jail: A Dilemma for the Clergy, Christian Century, January 30 1974, pp. 96-100.
ivEpiscopal Church reference, Guidelines for the Professional Conduct of the Clergy (Church House Publishing, 2003), 7.2, 7.3, 7.4.
vFor example, Neb. Rev. St. § 28-372
viAccording to one pastor of a large church, he had only two confessions of child sexual abuse arise over ten years.
viiBok, Sissela, “The Limits of Confidentiality,” The Hastings Center Report, February 1983, pp. 24-25.
viiiFortune Marie, “Confidentiality and Mandatory Reporting: A Clergy Dilemma?”
ixHorton, Anne and Judith Williamson, Abuse and Religion: When Praying Isn’t Enough, (Lexington Books, D.C. heath & Co. 1988), pp. 165-166.
xAbuse and Religion, Chapter 17. In the late 1980’s, a two-page questionnaire was sent to 5,700 pastors, representing 34 Protestant denominations throughout the United States and Canada. Less than ten percent of those sent questionnaires responded and the greatest number of responses came from the Midwest and the West (32 percent each), followed by the East (20 percent) and then the South (13 percent). The ethnic composition of the parishes was predominantly Caucasian.
xiFortune, Sexual Violence: The Unmentionable Sin; Child Sexual Abuse, p. 32.
xiiJohn 2: 13-22; Be careful that the righteous anger does not turn into revenge, which is not an appropriate response, and can become self-destructive to the victim. A discussion of righteous anger can be found at Sexual Violence, pp. 205-208.
xiiiAn in depth discussion of guilt and shame is found in Sexual Violence at pp. 200 - 204
xivPsalm 22: 1-2, 11 “My God, my God, why have you abandoned me? ” Jesus in the Garden of Gethsemane also uttered these words.
xvSee Job 2:11-13; Job’s comforters misperceived their needs, by remaining silent, instead of offering understanding to the victim.
xviChild Sexual Abuse, p. 26
xviiAbuse and Religion, Chapter 17.
xviiiA sample homily using Number 14:18 is found in Child Sexual Abuse, Chapter 9.