Are Church Confessions Safe? Court to Hear Arguments
So, on the one hand we have mandatory reporting by pastors, but, on the other hand, we have restricted court testimony. If I read the particular law quoted in the article correctly, it actually forbids pastoral testimony against a church member regarding information received in official capacity.
No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination
Why is it that my voice always seems to be loudest when I am saying the dumbest things?
One possible way I’ve heard of to get around this in counseling situations is to have the person sign a statement that if they disclose any illegal activity, that the pastor is allowed to disclose it. I’m sure its different in different states, and this may not work in MI.
Chip,
With the usual disclaimers about the necessity to know the laws of your state, and to seek legal counsel, I think the distinction between mandatory reporting and clergy privilege is probably the source of the information (as here in Michigan). If the information comes from the perpetrator in spiritual advice and counsel and is available no other place, then the privilege applies. If the information is reasonably available elsewhere, such as through an accusation by the victim, a third party report, visible confirmation, etc., then he must report if there is a reasonable suspicion. (The “reasonable suspicion” clause has been question, but this or some similar phrase is usually apart of the law itself; it’s not something I am making up. Again, read your state laws and seek legal counsel to verify your responsibility.)
The reason why he “shall not be allowed to disclose” is because the privilege belongs to the penitent. It’s not up to the pastor.
But each state is different, and clergy would be wise to know what the state requires and allows. You can, as Shayne suggests, have the person sign a waiver of confidentiality. But that may not always be possible, particularly if this is a spur of the moment type of encounter. And it may not hold up in court. I don’t know. Again, seek counsel from someone who knows what they are talking about.
My guess in this particular case is that the confession to the pastor will get thrown out because of confidentiality. The presence of a third party, his mom, was probably required since you probably can’t talk to a minor alone, and therefore her presence will not overrule confidentiality. The pastor would have no way of knowing of the confession other than through pastoral communications, and those are privileged. I would imagine the pastor could be compelled to testify that he had heard about it through a non-confidential source and should have reported it on that basis.
I wonder whether or not the mom could be called to testify against her son. Parents are not mandatory reporters.
With the usual disclaimers about the necessity to know the laws of your state, and to seek legal counsel, I think the distinction between mandatory reporting and clergy privilege is probably the source of the information (as here in Michigan). If the information comes from the perpetrator in spiritual advice and counsel and is available no other place, then the privilege applies. If the information is reasonably available elsewhere, such as through an accusation by the victim, a third party report, visible confirmation, etc., then he must report if there is a reasonable suspicion. (The “reasonable suspicion” clause has been question, but this or some similar phrase is usually apart of the law itself; it’s not something I am making up. Again, read your state laws and seek legal counsel to verify your responsibility.)
The reason why he “shall not be allowed to disclose” is because the privilege belongs to the penitent. It’s not up to the pastor.
But each state is different, and clergy would be wise to know what the state requires and allows. You can, as Shayne suggests, have the person sign a waiver of confidentiality. But that may not always be possible, particularly if this is a spur of the moment type of encounter. And it may not hold up in court. I don’t know. Again, seek counsel from someone who knows what they are talking about.
My guess in this particular case is that the confession to the pastor will get thrown out because of confidentiality. The presence of a third party, his mom, was probably required since you probably can’t talk to a minor alone, and therefore her presence will not overrule confidentiality. The pastor would have no way of knowing of the confession other than through pastoral communications, and those are privileged. I would imagine the pastor could be compelled to testify that he had heard about it through a non-confidential source and should have reported it on that basis.
I wonder whether or not the mom could be called to testify against her son. Parents are not mandatory reporters.
Parents are not mandatory reporters.Seriously? Wow.
Seriously? Wow.Here is a http://www.childwelfare.gov/systemwide/laws_policies/state/ link where you can check various relevant laws for any or all states . I just did a quick search and it seems that only in Arizona are parents, stepparents, or grandparents mandatory reporters. Of course a parent can report (anyone can). But they do not have to.
Here’s an http://www.childprotectiveservicesdefense.com/Areas_of_Practice/Mandato… interesting paragraph :
Parents are not usually mandatory reporters. If parents are considering whether they should make a report to Children’s Protective Services, they should first consider whether they are mandatory reporters under Michigan law because of their profession, license or career. As with all mandatory reporters there are consequences to failing to report when obligated to do so by law. Parents dealing with what they believe to be a single incident of inappropriate behavior have a difficult decision to make, especially when they believe that their parental intervention has taken care of the problem. If they make a report, they may have an older child facing criminal prosecution. If they seek the help of a medical or psychological professional for their younger child, a report will be made to CPS by that professional. Either way, depending on the circumstance, CPS may accuse the parent of failure to protect the younger child. Parents facing this difficult choice should retain counsel competent in the nuances of Michigan mandatory reporting law.
Interesting. Thanks.
I think an important factor in this case is that…
The communication was initiated by the pastor – not by the defendant – and was done to ascertain whether the victim was telling the truth, not for the purpose of spiritual guidance,” said Odette.Earlier in the article…
Bragg was 17 years old in 2009 when he went with his mother to speak with Vaprezsan…. After earlier hearing an allegation from the girl’s mother and then speaking with Bragg, Vaprezsan gave a statement to police.If I’m reading this correctly, it seems the pastor heard from the girl’s mother that the teen had molested her, and the pastor followed up on that as an “investigator.” In the course of his “investigation,” he confronted the boy (with his mother present), who admitted his guilt. If that’s so, the pastor erred in the order of his actions. After hearing the allegation from the girl’s mother, he should have reported it to the police so they could investigate. Then he could have gone to the boy and his parent(s), offering to provide spiritual counsel and support through the legal process. And if, in the course of that meeting, the youth admits his guilt, the pastor needs to offer to be with him as he acknowledges the guilt to the civil authorities.
If I’m reading this correctly, it seems the pastor heard from the girl’s mother that the teen had molested her, and the pastor followed up on that as an “investigator.” In the course of his “investigation,” he confronted the boy (with his mother present), who admitted his guilt. If that’s so, the pastor erred in the order of his actions. After hearing the allegation from the girl’s mother, he should have reported it to the police so they could investigate.Legally, Bryan, that’s not necessarily true. The only mandatory reports in Michigan are “when a reporter has reasonable cause to suspect child abuse or neglect.” ( http://www.legislature.mi.gov/%28S%28fz3cxlrmgotvkda2hi4ik055%29%29/mil…] MCL 722.623 ).
Was the report from the mother enough to establish “reasonable cause”? Well, how would we know unless we were there? http://www.childprotectiveservicesdefense.com/Areas_of_Practice/Mandato… In most instances, “reasonable cause” is subject to an analysis of the facts of the case. In other words, the mere making of an allegation is not itself reasonable cause. So, to follow up on an allegation prior to reporting to see if it is reasonable is entirely appropriate (though not necessarily required).
Reporting is not required unless and until the allegation is determined to be reasonable and that determination must be made by the one hearing the allegation, the pastor in this case. People who say otherwise do not know what the law actually says. And that is why I am linking to the law, as it applies here in the state of Michigan. As always, check the laws in your own state.
My guess is that in your state there is a very similar clause concerning reasonableness of the allegation. Use http://www.childwelfare.gov/systemwide/laws_policies/state/ this link to check it out and let us know. I am not aware of any states that do not have some sort of language regarding “reasonable basis” or something similar. But I haven’t looked at them all.
This is why it is so important to know the laws in your state. People on the internet make statements that sound good, like yours, but are not based in legal requirements. They are just incorrect.
My point here is not whether this pastor should have reported or not. My point is that we need to know what the law requires.
Discussion