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From California to New England, and the places in between, reports of child abuse have plummeted since the coronavirus arrived. Experts do not believe the frequency of child abuse has gone down. Instead, they conclude that child abuse is going unnoticed and unreported because social distancing has separated children from the teachers, school nurses, coaches, and other nonfamily members who could observe and report signs of abuse. Because young children are not able to speak up for themselves in abusive situations, they must rely on others to speak for them.

Even though some mandatory social distancing measures are being lifted, the vast majority of young children will not be going back to school or participating in sports until fall. However, as soon as restrictions are lifted, many of these children and their families will attend religious observances where they will be seen by and talk to clergy members. Some of those returning have committed acts of child abuse and may confess these acts to members of the clergy. This raises the question: can a clergy member testify in court that an abuser confessed? It depends on whether the clergy-penitent privilege applies.

There is an ongoing debate about whether the privilege should apply when it comes to cases of child physical or sexual abuse. Some believe it should never apply and clergy should always be required to report child abuse. Others argue it should always apply and clergy should not be required to report when the knowledge of the abuse comes from the abuser during confession.

In order to understand the issues involved in this dispute, it is necessary to be familiar with the reason the law recognizes privileges like the clergy-penitent privilege in the first place. The general law of privileges is different in each state, but most states recognize some form of the husband-wife, lawyer-client, doctor-patient, and clergy-penitent privileges.

The United States Supreme Court stated in the 1950 case of United States v. Bryan that it has been “a fundamental maxim that the public . . . has a right to every man’s evidence.” The existence of privileges that keep the courts from hearing the confession a wrongdoer gave to another person seems at first glance to violate this fundamental maxim.

Why, then, would the law recognize privileges that prevent a court from hearing all of the relevant evidence? As professor Deborah Paruch wrote, “Privileges are justified by the need to protect the privacy of certain relationships and the need to encourage open communications within these relationships.” To paraphrase the great legal scholar and evidence expert John Henry Wigmore, there are four conditions that must be met to satisfy this standard: (1) the communications must originate in confidence, (2) the confidentiality must be essential to maintaining the relationship, (3) the relationship must be one which the community believes should be fostered, and (4) the injury to the relationship from disclosure would be greater than the benefit of having testimony about the disclosure.

All fifty states and the District of Columbia have concluded that the clergy-penitent privilege meets this standard and have adopted at least some form of the privilege. This conclusion can be summed up by the Supreme Court’s statement in Trammel v. United States: “The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”

States differ on the precise requirements of reporting sexual abuse of a child to state authorities in the context of priest-penitent privilege. Most states have laws or evidence rules that specifically list members of the clergy as among those considered mandatory reporters who must notify authorities about suspected physical or sexual child abuse. Most of these laws and rules provide that there is an exception for privileged communications. A communication to clergy is considered to be privileged, and is not admissible in court, if it is a confidential communication that is made to a clergy member who has an absolute duty to keep the communication confidential under the doctrine of the religious organization.

From a practical standpoint, if the clergy member learns about the abuse from any source other than the abuser, he must notify authorities. It is only when the information about the abuse comes from the abuser and is given to the clergy member in a confidential setting as part of a confessional/repentance process that the communication will be privileged.

Should the law require clergy members to report suspected sexual abuse of a child, no matter where the information comes from? This question is under debate. For example, State Rep. Angela Romero of Utah sponsored a bill during the last legislative session that would have required all allegations of child abuse to be reported to authorities, with no exemption for clergy. Romero stated that the proposed bill was not targeted at any specific religion, but was aimed at protecting child victims. She added, “My concern is more about protecting children and making sure people who violate them are held accountable, because what they’re doing is criminal.” Romero was not alone in taking this position. Had the bill passed, Utah would have joined five other states in having no exception for clergy when it comes to reporting requirements in cases of child abuse.

The counter argument was set forth by the local Catholic Diocese, which urged legislators to oppose the bill “that forces individuals to choose between the most sacrosanct part of their religious beliefs and imprisonment — the very situation the First Amendment was meant to protect against.”

“For a Catholic priest, revealing the contents of a person’s confession is a mortal sin and grounds for automatic excommunication,” the diocese argued. “In the past, priests have been tortured and given their lives rather than break their solemn vow to protect the seal of confession. This isn’t just a convenient means of maintaining confidentiality, it is a sacred duty and thus critical to the free exercise of our religion. [The proposed bill] places a Catholic priest in the untenable position of violating state law and facing criminal penalties or violating canon law and facing excommunication.”

Although the bill was not enacted into law, the issue is bigger than one bill in one state and it is likely to come up again. It is of nationwide importance, especially during this pandemic when reporting by clergy may be the only reporting that could occur for the next several months.

Both sides of the argument must concede certain points made by the other. Child abuse is an abhorrent practice that society has a strong interest in stopping. Likewise, society has a strong interest in protecting religious freedom and the confidential nature of the confession/repentance process. But there is a third option that no one is talking about that strikes a balance between the two.

The exceptions to other privileges should also apply to clergy-penitent privilege. For instance, the attorney-client privilege is among the oldest of the privileges for confidential communications known to the law. The protections of the attorney-client privilege extend to oral communications that are conveyed by a client to an attorney in confidence for the purpose of obtaining legal advice. However, the privilege is subject to the crime-fraud exception which applies when a client seeks advice from an attorney in order to further a future crime or fraud.

Likewise, the information provided by a patient to a psychotherapist during therapy is protected from disclosure under the psychotherapist-patient privilege. However, some courts recognize a dangerous-patient exception to this privilege where the psychotherapist-patient privilege does not apply when there was a threat to harm a third party, the threat was serious when made, the harm was imminent, and disclosure was the only way to prevent the harm.

A legislature could treat the clergy-penitent privilege like the attorney-client and psychotherapist-patient privileges by establishing a rule that confidential communications by an abuser as part of the confession/repentance process are privileged if they are about past abuse, but are not privileged if disclosure is necessary to prevent future physical or sexual abuse of a child. It would be within the prerogative of a legislature to determine that preventing future abuse outweighs the benefit of promoting open communication in the clergy-penitent relationship.

COVID-19 has a near-monopoly on the attention of society right now—for good reason. But we should not lose sight of the collateral consequences to children that are so devastating when child abuse is not reported. Clergy-penitent privilege must be rebalanced in a way that legislatures haven’t considered before but should now. Preventing future child abuse may well be the one instance where the public’s “right to every man’s evidence” outweighs the need for clergy-penitent confidentiality.

 

Blake R. Hills has been a career prosecutor for close to twenty years. He focuses on prosecuting special victim, domestic violence, and child abuse cases.

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