When a religious leader learns of child abuse or neglect, what legal obligations does that religious leader have with regard to reporting such abuse or neglect?
Obligations of Clergy Members
The obligations in such situations vary widely by state. In Illinois, state statutes pull members of the clergy in different directions. On the one hand, under the Abused and Neglected Children Reporting Act (ANCRA), members of the clergy are listed among more than forty professionals who are required to report incidents of child abuse and neglect. Thus, when a member of the clergy learns of an instance of child abuse, he or she has a legal obligation to report such abuse to Department of Children and Family Services. See 325 ILCS 5/4.
On the other hand, Illinois law carves out an exception to the reporting mandate for confessions or admissions made to a member of the clergy “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.” 735 Ill. Comp. Stat. 5/8-803 (2010).
The Challenge of Applying the Law
The challenge for religious leaders who wish to invoke the above privilege exception is in determining what the nature of the privilege is, and when privilege applies. The meaning of the phrase, “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,” is by no means obvious or clear.
Consider the following examples: A minister bumps into a parishioner at a grocery store. There are several other shoppers nearby, possibly within earshot. The parishioner catches the minister's arm and whispers, “I've been meaning to talk to you.” A synagogue member drives by and sees her Rabbi mowing his lawn. She stops the car, walks over, and over the din of the mower, yells, “I could really use your opinion about something.” A church member, between putts on a golf green, says to his priest, “Father, I gotta tell you something.” After prayers, a Muslim approaches the presiding Imam as the crowd disperses. Leaning in, he asks, “Could I have about five minutes?” In these hypotheticals, taken out of the pages of ordinary clergy life, are clergy members acting “in the course of the discipline enjoined”? Arguably they are.
Some Basic Guidelines
While Illinois courts have not succeeded in providing religious leaders with a definitive bright line interpretation, the case law does offer some helpful guidelines. Accordingly, religious leaders in Illinois can use following principles to help them navigate their responsibilities:
1. The privilege only applies to professional members of the clergy. Churches, religious schools and other faith-based organizations often have non-clergy employees who are also required to report child abuse and neglect under the law. For many such employees, there is no privilege protecting communications made to such teachers, counselors, and the like. A religious organization should seek competent counsel to understand the nature of, and the extent of, reporting obligations for religious workers.
2. The privilege is limited in scope. In Illinois, clergy member privilege extends only to information that an individual conveys in the course of making an admission or confession to a clergy member in his capacity as spiritual counselor. Given the dynamic nature of the clergy-penitent relationship, it is often not clear when the clergy member is acting in his capacity as spiritual counselor.
3. The presence of a third party may negate the privilege. In one recent case, a court held that the clergy privilege was negated in the confession of a man who admitted the sexual abuse of his stepdaughter, even though it took place in the pastor's office while the defendant's wife and the victim were the only other people in the building. Religious institutions that conduct counseling with non-clergy leaders, such as elders, deacons or other lay leaders should be mindful of how the presence of such people could potentially impact reporting requirements.
4. The risk of imminent harm raises challenging questions. Sometimes a religious leader will learn that a child is in a present dangerous context in which there is a risk of serious physical or mental harm or neglect. The law under the Illinois statute does not expressly address this circumstance, making the legal question of whether to report a very challenging question. Religious leaders in such circumstances should quickly seek the advice of an attorney with experience in advising clients of such matters.
The diversity of laws among the states, and the fluid nature of clergy-penitent relationships sometimes make it difficult to know, especially during times of crisis in which such decisions usually need to be made. Advanced consideration of the matter, therefore, is advisable. Therefore, religious leaders, in coordination with qualified legal counsel, should establish policies and educational processes whereby clergy members are equipped to understand and carry out their mandatory reporting obligations
The Scope of the Problem
The problem is not conjectural; each year hundreds of thousands of children suffer from abuse and neglect. In 2006, an estimated 905,000 victims of child abuse and neglect were identified from over 3.6 million reports received by various child protective services agencies. In 2009, 702,000 victims were positively identified in the United States and Puerto Rico from 3.3 million reports that alleged that 6 million children were subject to maltreatment. Maltreatment takes many forms: neglect (78.3%), physical abuse (17.8%).
One particular difficulty the data highlight is the relational proximity of victims to those who harm them. Of the victims identified in 2009, over 80% suffered abuse or neglect at the hands of his or her mother, father, or both. The frequent relational proximity between perpetrators and victims accentuates the importance of active compliance by mandated reporters because they are often in the best position to identify signs of harm to children and to take the steps necessary to help protect them.
One of our attorneys, Paul Winters has recently published an article in the DePaul Law Review, addressing this important subject, a copy of which is available here.