Many state mandated reporter laws include clergypersons in their lists of individuals required to make reports of child abuse to child protective services agencies. Ministers, rabbis, imams, and other religious leaders may be legally obligated to report situations in which they reasonably suspect that a child has suffered abuse or neglect. In some states, a special exception is made for “clergy-penitent” communications. These deeply personal and spiritual communications are received confidentially by ordained or other ministry individuals whose professional responsibilities include regularly receiving confessions of sin, admissions of repentance, and similar private communications from church members and other religious worship attenders.
Amid continuing revelations of child sexual abuse committed by clergy members, however, some states are rejecting such exception and requiring clergy to report information received through personal confessions – or possibly face criminal fines and jail. This trend reflects sharp tensions between important interests: government deference to religious liberty freedoms and government interests in protecting vulnerable persons from harm. The tensions are intensified by situations involving abusive clergy who confess sexual misconduct to their fellow clergy members.
State Action Trends
A prime example is California’s Child Abuse and Neglect Reporting Act, which defines certain persons as “mandated reporters,” including clergy. The law currently requires clergy to report whenever, “in their professional capacity or within the scope of their employment,” they have “knowledge of or observe a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect, except when the clergy acquires the knowledge or reasonable suspicion of child abuse or neglect during a penitential communication.” California Senate Bill 360, as introduced by California State Senator Jerry Hill, now proposes to entirely remove the clergy-penitential exemption, with clergy instead required to report all instances of suspected child abuse and neglect – even those received during confessions. Failure to do so can result in jail time and fines. The bill has reportedly passed in the California Senate and is making its way through further legislative channels.
In Illinois, the Abused and Neglected Child Reporting Act (ANCRA) similarly requires clergy persons to report children whom they reasonably suspect have been abused. However, where information concerning such abuse is received in “a confession or admission made to him or her in his or her professional character or as a spiritual advisor” the clergyperson need not report. Recently, however, Senate Bill 1778 cleared the Illinois House of Representatives, which would require clergy members to report all cases of suspected child abuse or neglect without exception. As mandated reporters, they could be charged with a misdemeanor for a first offense and a felony for subsequent offenses, punishable by jail time, if they “knowingly and willfully” fail to report such information. Clergy could also be charged with felonies for violating the Illinois mandated reporter law “as part of a plan or scheme” to prevent discovery of an abused or neglected child, or for the purpose of protecting or insulating someone from prosecution.
Some states currently lack any clergy-penitent exception for mandated reporting: New Hampshire; North Carolina; Oklahoma; Rhode Island; Tennessee; Texas; and West Virginia. Seven other states have tried and failed within the last several years to eliminate the exemption: Massachusetts; Kentucky; Connecticut; New Hampshire; Maryland; Nevada; and Florida.
Confession as Constitutionally Protected Religious Expression
As the age-old expression goes: “Confession is good for the soul.” The origin of this idiom may be unknown, but its meaning is easily understood. Admitting one’s mistakes (“sins,” in Judeo-Christian parlance) can provide therapeutic benefits and make the confessor feel better. Confession is also widely understood in many faith traditions, as an essential part of religious worship and religious expression. Indeed, it is a sacrament in the Catholic faith, rooted in the Canon law of the Roman Catholic Church, under which the seal of the confessional is “inviolable” and for which priests can be excommunicated if they disclose confessions.
Consistent with our country’s First Amendment freedoms, U.S. courts have long recognized such privilege. Variations may exist among states in terms of how the terms “clergy” and “confidential communications” are defined, as well as who may hold and exercise the privilege. But the privilege has nevertheless been uniformly recognized and honored both in terms of a court testimonial privilege, which remains widely intact.
Should Clergy Be Required to Protect Our Most Vulnerable Through Mandated Reporting Without Exception?
Despite the strong tradition supporting the sacred nature of the private confessional, competing obligations to protect children linger. As the U.S. Supreme Court has recognized, “It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling.” The Court has specifically recognized that the "peculiar vulnerability" of children may curtail otherwise protected rights of adults.
Due in large part to a child's innate vulnerability, abuse is rarely an isolated event. Recidivistic tendencies of perpetrators underscore the risk of continuing patterns of abuse to children. Furthermore, victims of child abuse also have a pressing need for rapid intervention. Prompt reporting also initiates medical assistance by both pediatricians and qualified mental health care professionals to assess future needs. Intervention must be provided promptly because the level of a victim's stress is directly proportional to the length of time the victim is subjected to the trauma-causing event. Given the above exigencies, legislatures are giving careful consideration to just how far the time-honored protections of the confessional should go.
These compelling issues raise hard questions. Are the government’s interests in protecting the most vulnerable among us so compelling as to warrant limiting religious freedoms? Or will pending legislation discourage religious adherents from confessing their sins, possibly infringing on their religious freedoms? Will the new state laws be effective, given that confession can often be made within the context of anonymity, with the priest not aware of the confessing person’s identity? Will such laws give rise to entanglement between the church and state, such as when a priest chooses the risk of criminal prosecution over potential excommunication and violation of his sacred religious duties? And should clergy members instead encourage confessing wrongdoers to self-report to the authorities, or disclose that certain communications may not be covered such as for serious risk of imminent harm – as they well may already do?
The disease is obvious: child abuse and neglect are horrendous and not to be countenanced. But these new laws may come at a cost to deeply valued and long honored religious freedoms, and may force clergy to choose between their consciences and their civil law obligations. How indeed will the states protect the most vulnerable among us and simultaneously protect treasured religious freedoms? The debate is important and will surely continue, state by state.
 See, e.g., Nehemiah 9:1-3, which recounts the Israelites gathering together for fasting, confessing their sins, and related worship activities: “They stood . . . and read from the Book of the Law of the Lord their God for a quarter of the day, and spent another quarter in confession and in worshiping the Lord their God.” See also Psalm 32:3, 5 (“I acknowledged my sin to you and did not cover up my iniquity . . and you forgave the guilt of my sin.”)
 For further background, see R. Radel, The Clergy-Penitent Privilege: An Overview (available here). According to the Catholic faith, “confession is fundamentally about the encounter of the penitent Christian with God: he admits his sins to God and through the priest receives God’s absolution. It is a privileged moment in which a person reveals the deepest part of his conscience to God.” https://www.usatoday.com/story/opinion/voices/2019/04/28/california-religious-freedom-catholic-sex-abuse-column/3574921002/ (quoting Father Pius Pietrzyk, a Dominican priest and lawyer).
 See, e.g., Trammel v. United States, 445 U.S. 40, 51 (1980) (“The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”)
 Osborne v. Ohio, 495 U.S. 103, 109 (1990) (quoting New York v. Ferber, 458 U.S. 747, 756-58 (1982)) (internal quotation marks omitted).
 Bellotti v. Baird, 443 U.S. 622, 634 (1979).
 See A.R. Roberts, Bridging the Past and Present to the Future of Crisis Intervention and Crisis Management, in CRISIS INTERVENTION HANDBOOK: ASSESSMENT, TREATMENT, AND RESEARCH 3, 13 (Albert R. Roberts ed., 3d ed. 2005) ("Caplan states that 'a relatively minor force, acting for a relatively short time, can switch the balance to one side or another, to the side of mental health or the side of mental ill health."' (citations omitted)); see also L. Coles, Prevention of Physical Child Abuse: Concept, Evidence and Practice, COMMUNITY PRACTITIONER, June 2008, at 18, 20 ("[Tlhe best protection for a child is achieved by the timely intervention of family support services.").
 For a full exposition of such considerations and compelling arguments for abrogation of the clergy-penitent privilege within the context of mandated reporters, including the “peculiar vulnerabilities of children” and related pressing medical needs), see P. Winters, Whom Must the Clergy Protect: The Interests of At-Risk Children in Conflict with Clergy-Penitent, 62 DePaul L. Rev. 187 (2012).