Child Abuse: Balancing the Need to Report with Confidentiality

For those of us who work with or within religious organizations, one of the most difficult questions that arises has to do with the relationship between two responsibilities that the law imposes on clergy. First of all, pastors have the duty not to reveal information that is disclosed to them with the intent that it will remain confidential, or “clergy confidentiality.” Secondly – and sometimes in opposition – pastors have the duty to report child abuse to law enforcement or social services.

Each state is responsible for its own legislation and enforcement concerning this delicate and decidedly contradictory scenario. A quick review of one state’s parameters reveals the ongoing challenge of keeping up with the law, from both a professional and liability standpoint.

Until recently, the law in Ohio – where I reside – skirted the issue. Clergy were not named as mandatory reporters of suspected child abuse, whereas many other types of professionals were. This left clergy to decide in each particular situation whether they would choose to report child abuse even though they were not required to do so, or choose to maintain confidentiality.

In the summer of 2007, however, Ohio’s legislature added clergy to the list of mandatory reporters of suspected child abuse, along with a long list of other professionals that includes attorneys; physicians, dentists, nurses and other health care professionals; psychologists and therapists; day-care administrators and employees; school teachers and other school employees; social workers; and social service employees, among others. The complexities of the relationship between clergy confidentiality and the clergy’s responsibility to report child abuse, however, led the legislature to set out clergy reporting duties in a separate section of the statute.

As it stands now, the complicated relationship between these potentially conflicting duties is probably best understood as follows: As a general rule, the law exempts clergy from any legal obligation to reveal information that is communicated to them in confidence. The exception to this rule is that if the person who communicated that information to them gives the clergyperson permission to report. Then, reporting child abuse is required. (Children younger than 18, or adults under the age of 21 who are mentally retarded/developmentally disabled, who communicate information about child abuse to clergy are treated by statute as having given their permission, even if they did not actually give permission for such disclosure.) Even with permission, however, clergy cannot be required to disclose information that is communicated in the context of a confession or other similar highly confidential situation. Clergy cannot be compelled to reveal information communicated as a “sacred trust” under any circumstances, even if that information pertains to child abuse. This also means that unless the clergy confidentiality privilege is waived, clergy are not required to report information pertaining to child abuse that was communicated in confidence to them when they were acting in their professional capacity.

Under a variety of other circumstances, however, clergy may now be required in Ohio to disclose information about child abuse. These situations would include when the person who communicated child-abuse information has given permission for that information to be disclosed, or if that person has already testified about as to that information themselves. This would also include situations in which the child-abuse information was not confidentially communicated in the first place. If the information is communicated in the presence of others, or if the clergyperson is not acting as a professional when the information was communicated, then the information is not entitled to confidentiality protection.

The child-abuse reporting statute contains some carefully chosen language about when clergy are required to report non-confidential information: when clergy have “reasonable cause to believe based on facts ...” that a child younger than 18 or an adult under the age of 21 who is mentally retarded/developmentally disabled has suffered or faces the threat of suffering physical or mental abuse.

The references here to “reasonable,” as in “reasonable cause” or “reasonable person” mean that clergy cannot avoid their duty to report child abuse simply because they may not have actually believed that child abuse was taking place. “Reasonable person” creates somewhat of an objective standard. The question is whether, in retrospect, a judge or other authority would determine that the clergyperson should have believed that child abuse was occurring, based on the facts and circumstances involved, regardless of what the clergyperson actually believed or didn’t believe. If, objectively speaking, a “reasonable person” in a similar position would have found the information credible, it must be reported. Clergy who decide that the information they have received is not credible need to understand, in other words, that any decision not to report non-confidential information about child abuse can be second-guessed.

Going forward, there may be a need to fine-tune the current statutory relationship between clergy confidentiality and clergy child-abuse reporting requirements. The current situation is a vast improvement over previous law, however, which completely avoided this complex relationship by omitting clergy from the list of mandatory child-abuse reporters. Now the law requires that unless the information is protected as confidential or as a sacred trust, clergy have a duty to protect Ohio’s children by reporting reasonable suspicions of child abuse. To make sure that you understand the law in your state, consult an attorney, or search online to find your state’s statutes on child abuse reporting. These instances, however unfortunate, occur too often in ministry for pastors to ignore them.

David T. Ball is an attorney at the law firm of Schottenstein Zox & Dunn Co., LPA. He has a dual background in theology and law, with a master of divinity degree, a doctorate in theology and a juris doctorate from Boalt Hall School of Law at the University of California, Berkeley. In addition to several years of experience assisting religious organizations with a wide variety of legal issues, Ball has been a pastor and college chaplain, and teaches as an adjunct faculty member at the Methodist Theological School in Ohio. He can be reached at 614.462.2700 or dball@szd.com.