What is a state's requirements for mandatory reporting? This section looks at the relationship of the duty to report child abuse and the clergy-penitent privilege. Some states include clergy among the list of people required to report while others are all inclusive of all people or they intentionally leave clergy out those required to report.
Among these states, recognition of the clergy-penitent privilege varies. Some include an absolute exception for clergy. Some include an exception unless other factors are present. And a few states abrogate the privilege entirely, even if the communication is in the confidence of the sacrament of confession. For clarification, these conclusions are focused on the communications obtained in confession.
The windows below groups states by those that explicitly include clergy among listed mandatory reporters; imply an inclusion of clergy; or exclude clergy.
In these states, the mandatory reporter statutes include clergy among their list of mandatory reporters. Most of them still recognize the clergy-penitent privilege but a few do not.
An example of a mandatory reporter statute that includes clergy members in a lost list can be found in California. It states:
(a) As used in this article, "mandated reporter" is defined as any of the following:
(32) A clergy member, as specified in subdivision (d) of Section 11166. As used in this article, “clergy member” means a priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization.
In a separate statute, California also includes the exception for the clergy-penitent privilege:
(d)(1) A clergy member who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication is not subject to subdivision (a). For the purposes of this subdivision, “penitential communication” means a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of the clergy member's church, denomination, or organization, has a duty to keep those communications secret.
The states that include clergy as mandated reporters but also recognize the clergy-penitent privilege are: Alabama, Arizona, Arkansas, California, Colorado*, Connecticut, Hawaii*, Illinois, Indiana, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, North Dakota, Oregon, Pennsylvania, South Carolina, Vermont*, and Wisconsin.
*Hawaii includes an exception that affects the claiming of privilege. Its statute further stipulates:
a member of the clergy shall not be required to report information gained solely during a penitential communication, except when the clergy member believes that there exists a substantial risk that child abuse or neglect that is especially heinous, atrocious, or cruel, manifesting exceptional depravity, may occur in the reasonably foreseeable future.
*South Carolina adds the additional factor, the information received must be from the perpetrator:
However, a clergy member, including Christian Science Practitioner or religious healer, must report in accordance with this subarticle except when information is received from the alleged perpetrator of the abuse and neglect during a communication that is protected by the clergy and penitent privilege as provided for in Section 19-11-90.
*Colorado and Vermont add in their statutes, that if the clergy also obtained such confidential communications through another source, they must report it.
(II) The provisions of this paragraph (aa) shall not apply to a person who acquires reasonable cause to know or suspect that a child has been subjected to abuse or neglect during a communication about which the person may not be examined as a witness pursuant to section 13-90-107(1)(c), C.R.S., unless the person also acquires such reasonable cause from a source other than such a communication.
A few states with clergy as mandatory reporters abrogate the privilege when communication regards information about child abuse.
These states are: New Hampshire, New Mexico, Texas, and West Virginia*.
The Texas statute reads:
(c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, and an employee of a clinic or health care facility that provides reproductive services.
Additionally, another section of the Texas Code makes note about evidentiary proceeding:
In a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client.
*West Virginia does not explicitly abrogate the privilege but it is likely that it does.
There are several states that do not explicitly include clergy as mandatory reporters but due to an all-encompassing statute or ambiguity, it is implied that clergy have a duty to report.
For the states in which clergy have an implied duty to report and the privilege applies absolutely, Maryland provides an example:
Maryland's Reporting statute states:
(a)(1) Except as provided in paragraphs (2) and (3) of this subsection, notwithstanding any other provision of law, including a law on privileged communications, a person in this State other than a health practitioner, police officer, or educator or human service worker who has reason to believe that a child has been subjected to abuse or neglect shall notify the local department or the appropriate law enforcement agency.
(3) A minister of the gospel, clergyman, or priest of an established church of any denomination is not required to provide notice under paragraph (1) of this subsection if the notice would disclose matter in relation to any communication described in § 9-111 of the Courts Article and:
(i) the communication was made to the minister, clergyman, or priest in a professional character in the course of discipline enjoined by the church to which the minister, clergyman, or priest belongs; and
(ii) the minister, clergyman, or priest is bound to maintain the confidentiality of that communication under canon law, church doctrine, or practice.
The states that implicitly include clergy as mandatory reporters and also recognize the privilege are: Delaware, Georgia*, Idaho, Kentucky, Maryland, Nebraska, New Jersey, Tennessee, Utah*, and Wyoming.
*Georgia and Utah add in their statutes, that if the clergy also obtained such confidential communications through another source, they must report it.
A few states that implicitly include clergy as mandatory reporters do not recognize an exception for clergy-penitent privilege.
These states are: Florida*, Oklahoma, Rhode Island, and North Carolina.
*Florida statute only recognizes the attorney-client privilege. Its statute reads:
The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505, as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report as required by s. 39.201 regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.
These states exclude clergy members from enumerated lists of mandatory reporters.
These states (and district) are: Alaska, District of Columbia, Iowa, Kansas, New York, Ohio*, South Dakota, Virginia, Washington*.
*Although Ohio does not list clergy as mandated reporters, they include an exception to the privilege regarding communication shared in confidence if three factors apply:
(b) Except as provided in division (A)(4)(c) of this section, a cleric is not required to make a report pursuant to division (A)(4)(a) of this section concerning any communication the cleric receives from a penitent in a cleric-penitent relationship, if, in accordance with division (C) of section 2317.02 of the Revised Code, the cleric could not testify with respect to that communication in a civil or criminal proceeding.
(d) Divisions (A)(4)(a) and (c) of this section do not apply in a cleric-penitent relationship when the disclosure of any communication the cleric receives from the penitent is in violation of the sacred trust.
(b) “Sacred trust” means a confession or confidential communication made to a cleric in the cleric's ecclesiastical capacity in the course of discipline enjoined by the church to which the cleric belongs
*Washington has recently proposed legislation regarding a clergy member's duty to report, seen on the next page in the legislative history section.
