Legislative history proves exceptionally useful in understanding the purpose and intent of a statute as well as recently proposed bills. This section will look at the legislative history of a few different states to provide a deeper context of the individual statutes.
Something interesting to note in the Senate session is the difference in language between two separate statutes regarding the abrogation of privilege.
On page 160 of the Senate session journal, after the amendment to the statute regarding the reporting of child abuse, which included the language:
39.204 Abrogation of privileged communications in cases involving child abuse, abandonment, or neglect.--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
the following amendment regarding the statute 415.1045 on "Photographs, videotapes, and medical examinations; abrogation of privileged communications; confidential records and documents" stated:
(3) ABROGATION OF PRIVILEGED COMMUNICATIONS.--The privileged quality of communication between husband and wife and between any professional and the professional's patient or client, and any other privileged communication except that between attorney and client or clergy and person, as such communication relates to both the competency of the witness and to the exclusion of confidential communications, does not apply to any situation involving known or suspected abuse, neglect, or exploitation of a vulnerable adult and does not constitute grounds for failure to report as required by s. 415.1034
As mentioned in the section on mandatory reporter statutes, Washington is among those that do not list clergy. A recently proposed bill might change this. The proposal not only amends the statute to include clergy among mandatory reporters, but in a recent committee report, the state also wants to abrogate the clergy-penitent privilege in the circumstances.
The original amendment in the proposed Senate Bill No. 5280, by the 68th Legislature in the 2023 regular session, added this language to the duty to report:
(i) The reporting requirement in (a) of this subsection also applies to members of the clergy, except with regard to information that a member of the clergy obtains in the member's professional character as a religious or spiritual advisor when the information is obtained solely as a result of a confession made pursuant to the clergy-penitent privilege as provided in RCW 5.60.060(3), and the member of the clergy is authorized to hear such confession, and has a duty under the discipline, tenets, doctrine, or custom of the member's church, religious denomination, religious body, spiritual community, or sect to keep the confession secret. The clergy-penitent privilege does not apply and the member of the clergy shall report child abuse or neglect if the member of the clergy has received the information from any source other than from a confession.
In the committee report, issued on March 24, 2023, regarding the proposed Senate Bill No. 5280 included this language:
The confession exemption should be removed to strengthen the bill's ability to protect children and does not violate the free exercise of religion.
2023 Washington Senate Bill No. 5280, State of Washington - 68th Legislature - 2023 Regular Session
In support of this amendment, they conclude with this explanation:
There are already 13 states, including West Virginia, with laws that demonstrate mandated reporting by clergy with no exceptions, including the penitent-clergy privilege, is still aligned with First Amendment religious rights and clearly in line with a child's basic right to safety. There are, however, plenty of states that have stories of horrific abuse in the news. One of those stories involves the coverup of ab use that included 188 clergy members. Washington should be proactive and join the states who value the true safety of children and not wait until there is a shameful legacy to address. The confessional exemption undermines the entire bill. There are at least six states, including Texas that explicitly disallow clergy-penitent privilege as grounds for failing to report child sexual abuse, which also includes New Hampshire, North Carolina , Oklahoma, Rhode Island, West Virginia, and Guam. Australia, the United Kingdom, and several other organizations have commissioned independent studies and all concluded that no exemption is the best policy. The concerns raised by the church are hypocritical and do not reflect reality.
2023 Washington Senate Bill No. 5280, State of Washington - 68th Legislature - 2023 Regular Session
