On January 1, 2020, significant changes to the Illinois mandated reporter law will take effect for addressing child abuse and neglect issues. These changes are particularly important for all persons who care for children, such as in houses of worship, schools, and social service organizations. New training requirements apply for all mandated reporters, with clarification that all child care workers qualify as “mandated reporters.” Clergy members’ reporting obligations are now expanded, but their privilege not to report remains under certain circumstances.
The Illinois Abused and Neglected Child Reporting Act (Act) was enacted more than forty years ago and has been amended several times. (See 325 ILCS 5.) Act reflects a paramount concern for protecting children against abuse and neglect. Anyone in Illinois may report suspected abuse through the following hotline number: 800-25-ABUSE (800-252-2873).
Some people are “mandated reporters” and therefore must promptly report suspected abuse to the Illinois Department of Children and Family Services (DCFS). Mandated reporters consist of a wide variety of people who may come into contact with children, such as physicians, substance abuse treatment personnel, school personnel, clergy members, foster parents, and other child care workers. Failure to comply with mandatory reporting requirements constitutes a Class A misdemeanor for a first offense and a Class 4 felony for a second or subsequent violation.
Broad Applicability of “Mandated Reporter” Definitions
Any child-care worker affiliated with a church, other house of worship, or other non-profit (whether in a paid capacity or as a volunteer) is now a “mandated reporter.” Gone are the days where religious organizations or social service provides may recruit random volunteers, if the nursery gets too full on Sunday mornings or if more children than expected show up for programs. Such recruits are now mandated reporters and must undergo training, if not prior to their children-related service, within three months of first serving. No exceptions exist for occasional or sporadic service.
The amended Act clarifies applicability of mandated reporter requirements for persons, including child-care workers broadly, who come into contact with children (i.e., persons under 18 years old) “known to them in their professional or official capacities” through:
(1) the course of the reporter’s employment or practice of profession;
(2) the reporter’s affiliation with a church or other religious organization, a school, or other organization directly responsible for caring for a child; or
(3) a disclosure made to a mandated reporter regarding a child and made while the mandated reporter is engaged in his or her employment, practice of a profession, or regularly scheduled programs or service.
Although child-care workers have long been mandated reporters, the Act thus now clarifies that volunteer child-care workers affiliated with a church or other house of worship are mandated reporters. Organizations with volunteer-heavy child-focused programs should be aware of this legal clarification’s impact on their reporting responsibilities, as well as training requirements as addressed below. Volunteerism does not excuse anyone from such obligations.
New Mandatory Training for All Mandated Reporters
Effective January 1, 2020, all mandated reporters are subject to the Act’s requirements for mandatory training. The Act now expands applicable mandated reporter training from school personnel to all mandated reporters, including child-care workers as described above. Further, such training must be provided more frequently—within three months of their date of engagement in a professional or official capacity as a mandated reporter and at least every 3 years thereafter (every 6 years for medical personnel who work with children).
Required trainings must be in-person or web-based. The trainings must be provided either through DCFS or through an organization approved by DCFS to provide mandated reporter training. Although some of these providers of training may charge money for the training they provide (the law does not prohibit such charges), DCFS must make available a free web-based training for mandated reporters.
Notable: DCFS’s free web-based training resource for mandated reporters is available here.
What Must Mandated Reporters Report?
Mandated reporters must report suspected abuse or neglect if they have “reasonable cause” to believe that a child may be abused or neglect. Illinois law defines reporting requirements with reference to a parent, other immediate family member, person residing in the child’s home, or other person responsible for the child’s welfare, as responsible for abuse or neglect. Mandated reporter requirements apply independently of and apart from any internal organizational requirements to report such matters to supervisors.
Under the Act, the term “abuse” includes the infliction of physical injury, the allowance of such physical injury, or the creation of substantial risk of physical injury, all by other than accidental means and all that would be likely to cause death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function, as well as excessive corporal punishment, provision of illegal drugs, and involuntary servitude. Illinois law further defines sexual abuse as committing or allowing any sex offense as statutorily defined. Illinois law similarly defines “neglect” broadly as not receiving proper or necessary nourishment or medically indicated treatment as well as being subjected to an injurious environment as a result of a parent or other caretaker’s blatant disregard of his or her responsibilities.
Broadened Applicability to Clergy
Under prior law, if clergy had reasonable cause to believe a child is an “abused child”, they were required to report it. But such reporting obligation related specifically and exclusively only to sexual abuse. (See 325 ILCS 5/4.) The new law expands the scope of abuse that must be reported. Like other mandated reporters, clergy members must report all suspected abuse and neglect as listed above.
Notable: Clergy should be mindful of the expanded scope of reportable abuse. Pastors, rabbis, imams and other clergy will now need to report incidents of suspected neglect and proper care, as well as cases of suspected abuse.
Clergy Reporting Exemption
Under both prior law and the amended Act, “A member of the clergy may claim the privilege under Section 8-803 of the Code of Civil Procedure.” Section 8-803 of the Illinois Code of Civil Procedure states:
A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.
Notably, this provision exempts clergy persons from disclosing information they receive not just to courts, but also to administrative boards and agencies. The Act specifically refers to DCFS as an “agency”. (See 325 ILCS 5/7.3(a): “The Department shall be the sole agency responsible for receiving and investigating reports of child abuse or neglect made under this Act . . .”.) Illinois courts have never expressly held, however, that DCFS qualifies as an agency in the context of the clergy privilege and mandated reporting. But a straightforward reading of the Act indicates that clergy are exempted from disclosing privileged communications to DCFS or law enforcement officers, and thus from their obligations as mandated reporters, if other requirements of the privilege are met such as confidentiality, clergy status, and proper context of such communications – as addressed further below.
Other Professional Exemptions
Communications made to an attorney during the course of legal representation are exempt, pursuant to the attorney-client privilege. No such exemption applies to medical providers:
The privileged quality of communication between any professional person required to report and his patient or client shall not apply to situations involving abused or neglected children and shall not constitute grounds for failure to report as required by this Act or constitute grounds for failure to share information or documents with the Department during the course of a child abuse or neglect investigation.
This general provision removes any medical or mental health counselor privilege that may have existed, or that exists ethically for such professionals, and requires all such individuals to report incidents of child abuse and neglect to DCFS.
Applying the Clergy Exemption – Context, Confession, Constitutionality
Section 8-803 limits communications to which the clergy privilege applies through the following phrase, "in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes." Illinois courts have interpreted this phrase in ways that narrow the scope of the privilege. In People v. Campobello, 348 Ill. App. 3d 619 (2004), the Illinois Court of Appeals held that the "discipline" referred to in the clergy privilege "is limited to the set of dictates binding a clergy member to receive from an individual an admission or confession for the purpose of spiritually counseling or consoling the individual.” (Id. at 668). The court then set forth the requirement that, “to fall under the protection of [the clergy privilege], a communication must be an admission or confession (1) made for the purpose of receiving spiritual counsel or consolation (2) to a clergy member whose religion requires him to receive admissions or confessions for the purpose of providing spiritual counsel or consolation.”
These limitations thus may exclude many casual conversations between clergy persons and their congregants as well as most conversations where others are present. In any specific case, courts can be expected to undertake a fact-specific analysis to determine whether the privilege should apply. Application of the above requirements is additionally problematic for at least two reasons.
First, not all religions formally require clergy to receive admissions or confessions. In some religious traditions, clergy may be available for confessions or admissions, and such penitential communications may be encouraged and welcomed. In other religious contexts, confession is a mandatory sacerdotal activity made only to ordained clergy. See e.g. John Paul II, Reconciliatio et Paenitentia 29 (2/12/84) (referring to the priest’s duty to receive confessions). The diversity of religious practice creates some uncertainty regarding whether the privilege applies to all clergy, and therefore whether the privilege exempts all clergy from mandatory reporting under the Act.
Second, such requirements invite courts to tread where they should not go – namely, into the nature and content of religious beliefs for the purposes of making legal judgments. The Supreme Court of the United States has long held that courts are not competent to resolve controversies over religious doctrine and practice, or to interpret particular church doctrines, as a matter of First Amendment religious liberty considerations. Campobello thus may invite courts making impermissible assessments about religious traditions ripe for constitutional challenge.
Claiming the Clergy Exemption
Generally, Illinois courts have held that the privilege can be asserted by both the clergy and the person making the statement. (See People v. Burnidge, 279 Ill. App. 3d 127, 131 (1996)). However, the Act states only that “A member of the clergy may claim the privilege under Section 8-803.” How a court might consider a penitent’s objection to a clergy person’s decision to report under the Act, apart from a court testimonial context, is unclear. Clergy members confronted by such dilemmas thus should seek legal counsel, to carefully assess all relevant facts and circumstances in determining their obligations.
 The new law reorganizes mandated reporters into ten distinct categories:
(1) medical; (2) social services and mental health; (3) crisis intervention; (4) education; (5) recreation and athletics; (6) child care; (7) law enforcement; (8) funeral home services; (9) clergy; and (10) medical, social services, or mental health provider of any office or clinic that provides abortions, abortion referrals, or contraceptives.
 See Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969); Md. & Va. Eldership v. Church of God, 396 U.S. 367, 368 (Brennan, J., concurring); Jared A. Goldstein, Is There a Religious Question Doctrine, 54 Cath. Univ. L. Rev. 497 (2005).