When a pastor learns of child abuse, what are his or her legal and ethical obligations to report the abuse to government agencies like Illinois’ DCFS? On the one hand are the victim’s interests – those of the vulnerable child who has or who is suffering. On the other hand are the interests of the confessing penitent, who usually receive assurances that their conversations with clergypersons are privileged. Which interest prevails? Which should prevail? What does the law require?
In the most recent issue of the DePaul Law Review, Wagenmaker & Oberly attorney Paul Winters examines these questions in his article, “Whom Must the Clergy Protect? The Interests of At-Risk Children in Conflict with Clergy-Penitent Privilege.” As Paul explains, the legal obligations of clergy in such situations depend largely upon the state in which the clergyperson practices.
In Illinois, although clergypersons are listed among the more than forty professions required to report child abuse, a carve-out exists for communications received by the clergy person in his or her professional character and as a spiritual advisor. Where a clergyperson is acting as such, and for the purpose spiritually counseling or consoling the penitent, the clergyperson thus is generally not required to report instances of abuse. Other factors, like the location in which a confession is heard, the presence of third witnesses, and the penitent’s intentions may affect the clergyperson’s legal duty to report.
However, Illinois’ requirements are by no means typical. State laws vary widely. In some states, clergypersons are not mandatory reporters at all. In other states, the duty to report is absolute, the tradition of clergy-penitent privilege notwithstanding. Religious organizations, clergy, and other religious leaders should understand the statutory duties and obligations of their particular states. Having a thorough understanding of a state’s requirements will be useful for clergy as they face the acute challenges of such crisis situations.
