What Clergy Need to Know About Mandatory Reporting

"Currently, clergy are considered mandatory reporters in about half of all states. But even those laws vary because of the unique nature of pastoral care. Some states that include clergy as mandatory reporters exempt pastors from that requirement if abuse is disclosed or discovered during 'pastorally privileged conversations.'” - Church Leaders

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JD Miller's picture

The article states:

 From one perspective, without the expectation of privacy, congregants may not turn to church leaders when confronting various challenges. Because of their role as spiritual advisers, pastors often are entrusted with sensitive information about people’s lives.

One of the arguments I hear is that reporting laws will discourage people from going to pastors for help.  If pastors are really going to be able to help people who are abusers, the abuser must be repentant.  We need to understand that a truly repentant person is willing to accept the consequences of their actions. 

Sadly too many in the church have been taught that they can confess without consequence.  This often leads to repeated sin and repeated confession (it reminds me of my Catholic friends who wanted to party on Friday instead of Saturday because they would confess at church on Saturday night and they did not want to do anything too bad and have to wait a whole week to confess it).  I fear that pastoral confidentiality can end up enabling a continued cycle of sin. 

Pastors must avoid gossip and must keep personal matters quiet, but sin and criminal activity must be dealt with, not covered up by some traditional expectation.  I am not suggesting that every private sin needs to be brought into the open, but if others are affected by it, it must be dealt with.

Bert Perry's picture

It strikes me that if someone is repentant of child sex abuse, part of that ought to involve going to the police and confessing.  No?

That noted, what to do with counseling/penitent privilege is one of the most difficult parts of this; with adults, you cannot force someone into investigation, but with kids, the state does it for them.  My gut feeling is that unless one has a really good reason not to report, one does well to remember that if the police/family services are investigating, they get a lot of the blame if they drop the ball or mess it up.  Plus, they've got all kinds of great resources that we don't--subpoena power, physical evidence collection, dedicated prosecutors and investigation, etc..

You might include a note if the person does not want to proceed, but as a rule, if we don't report most of the time voluntarily, the decision will be made for us after a certain # of offenses hidden.

Aspiring to be a stick in the mud.

Larry's picture

Moderator

That noted, what to do with counseling/penitent privilege is one of the most difficult parts of this; 

Legally, it's not that difficult at all. It is pretty simple. If, in your state you are a mandatory reporter and if your knowledge is from a third party, you have a duty to report. If your only knowledge is from the perpetrator in a pastoral relationship (not a friend or acquaintance, but pastoral), you cannot report; it is privileged and the privilege belongs to the penitent. If your knowledge is from a victim who requests confidentiality, it is a bit more muddled, based on age and other factors. For instance, in some states, if the victim is over 18 or 21, you are not legally mandated to report unless a minor child is reasonably suspected of being in danger. And if that victim does not want you to report, you could be violating clergy privilege and result in the case being jeopardized at prosecution.

It is a good idea to an attorney to guide you through the process. We are not trained in legal matters and it is foolish to expose yourself or someone else to risk without due care to seek legal advice. Don't be arrogant. Get advice from someone who actually knows.

Ron Bean's picture

Suppose you're a Christian school teacher, church SS teacher, or church nursery worker and see or hear what may be signs of abuse. Why should a policy be in place to require you to report to the pastor/elders or someone else in a leadership position in the church first? Personally, I'm calling the authorities. I think it's the right thing to do and I've been in situations where making first reports internally did not end well.

"Some things are of that nature as to make one's fancy chuckle, while his heart doth ache." John Bunyan

Joeb's picture

If a parishioner comes to a Pastor and says I killed my first wife and she did not run off on me.  I think unless the Pastor can convince the Parishioner to do the right thing he might be in a sticky situation reporting it.  I know no Pastor Doctor Lawyer or Wife can be compelled to testify and whether that confession can be used against the person.  So I understand why some states may give that type of leeway.  Interesting though I never studied the pure legal ramifications of it other than I could not compel a wife and the others to testify, but nothing is better than a jilted women as a source against a man involved in criminal activity.  I have had a few.  

The laws may vary from State to State on this confidentiality matter.  I know if there is an imminent threat a Counselor or Dr has to notify the Police.  I handled one of those situations once but I was not allowed to interview the person making the threat.  It actually came from the VA who handled warning the patient about taking such actions. I could only take protective action regarding the person threatened.  That was my only experience.  Nothing ever came of it.  

TylerR's picture

Editor

Ron asked:

Why should a policy be in place to require you to report to the pastor/elders or someone else in a leadership position in the church first?

Control. That's the reason. It's a bad reason.

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Joeb's picture

Tyler I agree with you on that 100% but I am willing to compromise with a Child Safety Officer.  A church plan of a whole Elder Board and Pastor knowing about it only leads to a compromised investigation. Hence the importance of keeping the integrity of the investigation.  One Elder contacting the Subject by phone saying what’s going on in my book is criminal obstruction especially if the Police Officers request that it not happen.  The Church can’t overrule the State until the State says it is okay.  That’s the law and part of the state carrying the sword of justice.  The Elders and Pastors should not and cannot do squat unless the Case Investigator says it’s okay and when it’s okay. Including speaking to the subject’s wife or family without Police approval.  Most Police are very accommodating so issues should not arise. 

Larry's picture

Moderator

Control. That's the reason. It's a bad reason.

Perhaps, but more likely or at least as likely for information. Pastors should not be finding out about stuff after the fact, through news media or through calls from law enforcement. It might be related to control in some cases and that's not a bad thing. If word gets started that the church was overlooking something, you want to control that information. You don't want to look like you were covering it up. That's why internal notification should be part of the policy. 

Ron Bean's picture

Don't assume that just because the alleged abuse is reported to the church leadership that it will be reported to the authorities. #cynicalforareason

"Some things are of that nature as to make one's fancy chuckle, while his heart doth ache." John Bunyan

Bert Perry's picture

Tyler's right.  Notifying elders/pastors before going to authorities is generally a really bad idea born of trying to control things.  Ironically, since you have mandatory discovery/subpoena power/physical evidence collection/right to confront evidence/etc. in a legal process, you've got more control of the situation if you give up control by notifying authorities.  

Aspiring to be a stick in the mud.

Larry's picture

Moderator

To repeat what I said elsewhere, reporting to church authorities (or school or employer) will not absolve of your requirement to report to law enforcement. If you are a mandatory reporter, you (as you) must report to authorities. No one else can report for you.

Joeb's picture

Larry no matter if it’s sex abuse or embezzlement the integrity of the investigation TRUMPS ALL.  That’s absolutely biblical and legal especially in a matter of public safety.  You don’t know what a Senior Pastor will do if his best friend and Bible College Classmate is the subject.  Your putting the Senior Pastor or Elders in a bad situation.  The Senior Pastor May have no problem with his friend being caught but may not want to see him do 5 to 10 years in prison.

 I’ll be honest with you if it was my best friend I’d be very tempted to run interference for him.  If my best friend goes to prison he will face the prisoners who have high morals on these matters.  You don’t mess with kids period.  Of course their judgment is deadly   That’s why Sex Abusers of children are kept in an isolated population   

Thats why a designated child safety officer is s compromise to satisfy the church elders and Senior Pastor they’re not being ignored, but this Church Safety Officer must be free of any undue pressure   Anything short of this is just plain wrong   

Note: What if more than one Sex Perp is involved   The Police have to take everything in consideration including the number of victims  That’s why the integrity and control of the Investigation is so important.   I regularly did not want my subject to know I was coming until I knocked on their door.   Interviewing a suspect at his house puts him in a non custodial situation   This did not require me to give them their rights formally   If they know I’m coming they lawyer up   My position as an Investigator is to legally get a confession anyway I can   Personally I would not care what a Senior Pastor or a Board Of Elders thought about my methods  I’m sure Tyler would concur with this.  My job is to prove or disprove the allegation  Once I prove it now I concentrate on building an over whelming case so the victims never have go through a trial   

 

Jay's picture

It strikes me that if someone is repentant of child sex abuse, part of that ought to involve going to the police and confessing.  No?

I'd be curious to see just how many people have repented of child sexual abuse and turned themselves into the police.  I'm betting that the number is extremely low - as in maybe 1 or 2 a year.

Pastors should not be finding out about stuff after the fact, through news media or through calls from law enforcement. It might be related to control in some cases and that's not a bad thing. If word gets started that the church was overlooking something, you want to control that information. You don't want to look like you were covering it up. That's why internal notification should be part of the policy. 

Normally, no.  But in a case like this, I'm OK with a call being placed to law enforcement and then an immediate follow up call to the pastor.  That being said, I'm far less trusting in men on this particular subject than many others are/would be.  I know if a congregant called me (as their pastor) and told me they'd just turned in someone in my church for child sexual abuse, my first question is always going to be "Did you call the cops yet?".  The second question is likely "Why not, and do you want me to go with you?"

"Our task today is to tell people — who no longer know what sin is...no longer see themselves as sinners, and no longer have room for these categories — that Christ died for sins of which they do not think they’re guilty." - David Wells

Bert Perry's picture

Larry wrote:

To repeat what I said elsewhere, reporting to church authorities (or school or employer) will not absolve of your requirement to report to law enforcement. If you are a mandatory reporter, you (as you) must report to authorities. No one else can report for you.

This is something I've had to emphasize in child safety training--being in the shadow of Mayo, where a LOT of employees are mandatory reporters, there was still the question of whether to report.  It's one reason I'd heartily discourage any policy that says "tell the elders first"--people will get confused at just the wrong time.  

One thing to note as well is that a fair number of people, especially of the older set, will put things in policies that will tend to work against reporting--and at that point, the person who's working with them will have to say "you can do that, but be ready to go to jail if you do."  Yes, personal experience. 

Aspiring to be a stick in the mud.

T Howard's picture

Sorry, Gentlemen, but the elders need to know what is going on in the church. Period. They are biblically, fiscally, and legally responsible for the church. Circumventing the elders in any matter involving the church is both unbiblical and unwise. As stated elsewhere, if one of the elders is being accused, of course you make provisions for that, but the elders need to be made aware. The threshold for reporting (at least in Ohio) is "reasonable suspicion." If the person has reasonable suspicion that abuse has taken place, they should immediately report it... I'll even grant you that they should report it first to the local authorities and then to the elders. But, to keep the elders in the dark until the police show up at the church is not good advice.

Bert Perry's picture

Tom, agreed, though in an ideal world, any report to the police would get them to the site of the crime so quickly you'd hardly have a chance to inform the elders.  Obviously if you've been watching the news, that is a dream world at this point.  

But that said, agreed, and one really ought to inform the whole congregation as well so you don't get every Tom, Dick, and Harry trying to take sides and making a miserable situation far, far worse with a flood of disinformation, retribution, and the like. 

Aspiring to be a stick in the mud.

T Howard's picture

Bert Perry wrote:

one really ought to inform the whole congregation as well so you don't get every Tom, Dick, and Harry trying to take sides and making a miserable situation far, far worse with a flood of disinformation, retribution, and the like. 

I would agree that the congregation should know that an accusation of child abuse at the church has been reported, that the church has policies in place to address this situation (one of them being to immediately report the suspected abuse to authorities), that the elders are seeking to minister to the victim and the family, and that the church is fully cooperating with law enforcement. However, I wouldn't give any more details in order to respect the privacy of both the victim and the accused and to allow the police to conduct their investigation.

If the accused is charged, that would require another congregational meeting where the accuser is named, our continued cooperation with the authorities is mentioned, and our care and support for the victim and family is emphasized. But, we still wouldn't publicly identify the victim.

If the accused is not charged, I would communicate the outcome of the investigation to the congregation, but I wouldn't name the accused or the victim.

Bert Perry's picture

I guess you could keep the name quiet for a little while, but if someone is being investigated, their name is going to become well known at least among those who are approached by police very quickly.   People will also tend to guess the name of the accusers from the direction of the investigation as well. 

So in my view, the key issue isn't privacy, but rather making sure that people know who to talk to, and who not to talk to.  You stand up there, tell them that someone has been accused and that there are a number of accusers, and ask them to tell whatever they know to either the police or the church's lawyer--and give contact information.  Your goal is to limit or shut down the gossip mill. 

As I noted above, the best way to control what goes on in a case like this is to give up control and let mandatory discovery keep you informed.

Aspiring to be a stick in the mud.

T Howard's picture

Yes, people may guess or find out who the accused is, but the elders shouldn't name the person until there is an indictment. Then, it is public knowledge and the grand jury has found that there is enough evidence to proceed with a criminal prosecution. Until then, the allegations remain just allegations. Remember, reporting sexual abuse does not establish that sexual abuse actually occurred. I don't want to ruin a person's reputation and character in the church and in the community if the criminal justice system finds that the allegation could not be substantiated or corroborated.

Ron Bean's picture

Suppose you're a pastor or CDS Principal and someone from child services contacts you to inform you that they are investigating and allegation of abuse in your church/school. What's your reaction? 

"Some things are of that nature as to make one's fancy chuckle, while his heart doth ache." John Bunyan

Bert Perry's picture

1.  Take careful notes and get the investigator's card/contact information.  Make no commitments beyond telling him/her that you are going to immediately call your church's insurer and lawyer for advice on how to proceed, and to work with the investigation.

2.  Call the church's insurer and get the name of the lawyer they recommend.  Listen carefully to what they tell you.

3.  Get an urgent appointment with the lawyer and listen carefully and do what he tells you.  (he will tell you whether it's better to name the accused or not, per another discussion)

4.  As a rule, part of what the insurer and lawyer will recommend is to announce the charges to the congregation and provide their contact information, as well as that of the police, so those who know something talk to them and not just to each other.

5.  Plead with the congregation to talk with investigators, and not to make public accusations or defenses of either accuser or accused.

6.  Comply with requests for information/interviews per consultation with the lawyer.

Note; failure to do this appears to be extremely likely to cost my alma mater, Michigan State University, about half a billion bucks in insurance money.  It's also resulted in the prosecution of at least four MSU employees besides Larry Nassar.  It's a big deal, and it will help your organization avoid a lot of problems. 

Aspiring to be a stick in the mud.

Larry's picture

Moderator

What's your reaction? 

If you have a good policy, your answer is, "We already know. The person has been suspended from all contact with children. Let us know what you need."

If you  have a bad policy or someone who doesn't follow the policy, you say, "Wow. I have no idea what you are talking about. I haven't heard anything. Let me go get them because they are in a classroom right now because we didn't know he or she should have been suspended."

Take your pick which position you would rather be in.

Bert Perry's picture

Larry, there are two points that make your scenario incomplete.  First, even the best policies don't ensure success--you hint at that, but let's make it explicit.  We might also add that policies don't change church culture, and that's the key issue for avoiding these problems.

Second, if you've got a good, legally sound policy, and you've determined someone is a risk, you're strongly likely to have contacted the police or child protective services yourself, no?  So we would assume Ron's case is either "bad policy/no policy" or "policy-breakers".  

Finally, even if you knew and contacted them yourself, again, you talk to your insurance company and lawyer.  

Aspiring to be a stick in the mud.

Ron Bean's picture

Bert's response is the best so far. When I got a surprise visit from Child Services as a CDS Administrator about an alleged incident of which I had no knowledge I gave him free reign to do his investigation. (The allegation was unfounded.)

I've also seen Larry's scenario:

If you have a good policy, your answer is, "We already know. The person has been suspended from all contact with children. Let us know what you need."

The investigator's response in this case was "Why didn't you call us?"

"Some things are of that nature as to make one's fancy chuckle, while his heart doth ache." John Bunyan

Larry's picture

Moderator

First, even the best policies don't ensure success--you hint at that, but let's make it explicit. 

No, it was explicit. I said "someone who doesn't follow the policy." 

Second, if you've got a good, legally sound policy, and you've determined someone is a risk, you're strongly likely to have contacted the police or child protective services yourself, no?  So we would assume Ron's case is either "bad policy/no policy" or "policy-breakers".  

Yes, and that's the answer to Ron's question: "We didn't call you because the person who told us had already told you."

Finally, even if you knew and contacted them yourself, again, you talk to your insurance company and lawyer.  

Probably good to your lawyer first in most cases to make sure you are doing it correctly and not jeopardizing something by doing it wrongly. There is a "good faith" clause in reporting statutes, but good faith won't make up for failing to take proper steps to retain evidence and protect the integrity of the investigation.

Larry's picture

Moderator

The investigator's response in this case was "Why didn't you call us?"

The answer is, "Because the person who told us had already told you. Here's a copy of the report that you were given."

Bert Perry's picture

Larry, it strikes me that even if a church's source on a person's wrongdoing had already reported, that (a) does not in general satisfy mandatory reporting requirements and (b) the church's experience with a person will be of interest to an investigation.  So quite frankly, the scenario you described will sometimes send someone to jail. 

Also, regarding "call the lawyer first", lawyers specialize.  The guy who handles code issues and contracts isn't the right guy in this case, and if he's any good, he'll tell you to go to your insurance company and see who they recommend.  If he's not good, he'll "help" you, often with disastrous results.

Call the insurance company first.  It's in the contract, and it's the smart thing to do.

Finally, the explicit statement is "even the best policies don't ensure success".  That concept is implicit in the statement "someone doesn't follow the policy."  See the difference?  Again, when people get easily confused regarding issues of reporting and such, you've got to follow the "KISS" principle.

Aspiring to be a stick in the mud.

Ron Bean's picture

Yes, and that's the answer to Ron's question: "We didn't call you because the person who told us had already told you."

and

The answer is, "Because the person who told us had already told you. Here's a copy of the report that you were given."

In reality, the response to these is often, "No. Actually the accuser was the one who called us."

"Some things are of that nature as to make one's fancy chuckle, while his heart doth ache." John Bunyan

Larry's picture

Moderator

Larry, it strikes me that even if a church's source on a person's wrongdoing had already reported, that (a) does not in general satisfy mandatory reporting requirements and (b) the church's experience with a person will be of interest to an investigation.  So quite frankly, the scenario you described will sometimes send someone to jail. 

It strikes you wrongly. Assuming a person is a mandatory reporter (most church volunteers are likely not which means they won't get sent to jail), the report is to be made by the individual with the reasonable suspicion. Not by a third party who has no reasonable suspicion. If the church's source makes a report, then the mandatory reporting requirements are likely met.

The church's experience probably will be of interest, hence, the statement, "Let us know what you need."

As with previous conversations, I am once again convinced that you don't read with the goal of understanding.

Also, regarding "call the lawyer first", lawyers specialize.  The guy who handles code issues and contracts isn't the right guy in this case, and if he's any good, he'll tell you to go to your insurance company and see who they recommend.  If he's not good, he'll "help" you, often with disastrous results.

Call the insurance company first.  It's in the contract, and it's the smart thing to do.

Don't nitpick stuff like this. Of course you call a qualified lawyer and if you need to ask your insurance company, then do so. Don't be silly Bert. If you are calling a codes and contracts lawyer about mandatory reporting, you are an idiot. That doesn't even need to be said among reasonable people. Again, read with understanding.

Finally, the explicit statement is "even the best policies don't ensure success".  That concept is implicit in the statement "someone doesn't follow the policy."  See the difference?  Again, when people get easily confused regarding issues of reporting and such, you've got to follow the "KISS" principle.

My statement was explicit, probably moreso than yours general statement about policies. Mine was an explicit statement about the person who doesn't follow the policy. So yes, there's a difference. Your statement addressed a policy; mine addressed a reporter, a person. Mine was sufficiently explicit.

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