Clergy as Mandatory Reporters of Child Abuse and Neglect

by OrphanCrow 7 Replies latest watchtower child-abuse

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  OrphanCrow

  In the United States, the statutes governing mandatory reporting of child abuse are determined at the state level with variances occurring between states.

  This pdf outlines the state statutes as they apply to clergy across the United States:

  https://www.childwelfare.gov/pubPDFs/clergymandated.pdf

  The statutes outlined in the above pdf are the statutes by which JW elders are accountable to according to the state in which they live.

  Candace Conti's court case was filed in California and the reporting laws that apply to clergy in that state are as follows:

  California Cal. Penal Code § 11166(d)
  A clergy member who acquires knowledge or reasonable suspicion of child abuse during a penitential communication is not required to make a report. 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 his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.

  Nothing in this subdivision shall be construed to modify or limit a clergy member’s duty to report known or suspected child abuse when a clergy member is acting in some other capacity that would otherwise make the clergy member a mandated reporter.

  On or before January 1, 2004, a clergy member or any custodian of records for the clergy member may report to an agency specified in § 11165.9 that the clergy member or any custodian of records for the clergy member, prior to January 1, 1997, in his or her professional capacity or within the scope of his or her employment, other than during a penitential communication, acquired knowledge or had a reasonable suspicion that a child had been the victim of sexual abuse and that the clergy member or any custodian of records for the clergy member did not previously report the abuse to an agency specified in § 11165.9.

  This paragraph shall apply even if the victim of the known or suspected abuse has reached the age of majority by the time the required report is made.

  The local law enforcement agency shall have jurisdiction to investigate any report of child abuse made pursuant to this paragraph even if the report is made after the victim has reached the age of majority.

  Cal. Penal Code § 11165.7(a)(32)-(33)

  A mandated reporter is defined as any of the following: • A clergy member, as specified in § 11166(c) • Any custodian of records of a clergy member, as specified in this section and § 11166(c).

  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.
• 

  OrphanCrow

  The above post, and the pdf linked to, applies to the United Sates.

  For information concerning the position of Canadian law regarding clergy as mandatory reporters of child abuse and how it relates to clergy parishioner privilege, this article Analysis: the state of clergy-parishioner privilege in Canada, states that:

  One point on which Canadian legislatures have agreed in regard to policy is that where there is a reasonable apprehension that a child is at risk all manner of privilege is suspended (solicitor-client, doctor-patient, etc) and reporting of the danger is required.

  Religious practice will be respected by Canadian courts, particularly when it is documented or the expectation of confidentiality is clearly expressed, but confidentiality of ‘religious communications’ has no comprehensive protection. The rule of law and the exclusive claims of religion overlap and will, at times, conflict. The Church – even the individual religious official – may be forced to decide the significance of confidentiality in communications with the threat of potential prosecution hanging in the atmosphere … on a case-by-case basis.

  
  
  
  
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  Vidiot

  I'm starting to think that we Canadians might be doing a better job then our American cousins at the whole "separation of church and state" thing.
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  OrphanCrow

  ...I think we Canadians do a better job then our American cousins at the whole "separation of church and state" thing.

  Vidiot - I think that the appearance of that is because Canada is so much smaller than the States. Canada can have better nation wide laws and policies concerning child abuse quite simply because it is easier to deal with in a smaller population.

  The statutes as to how each state, and different countries, deal with the legalities and policies around child abuse reporting has a fairly wide variance.

  I thought it might be important to several people on this forum to take the time out to research what the laws and statues are in the state/country they live in. It is good information for those who may be considering taking legal action. As well, this forum has members who are JW elders, or family members who are elders, and these statutes define their legal responsibilities from a secular standpoint rather than from what the WTS channels down the pipe.
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  EdenOne

  Marked. Very interesting, thank you,

  Eden
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  GLTirebiter

  ‘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 his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.

  This statute consistently uses singular wording, not plural. That suggests that a Judicial Committee meeting would not be privileged as a penitential communication when than one elder is involved or if it includes witnesses. Is a legal professional in the audience able to confirm or refute this conclusion?
  
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  talesin

  In Canada, the clergy is not protected from the responsibility of reporting. Appreciating the article you quoted, OC, and to further enlighten, here is the url for the Child & Services Act of Ontario, as an example of provincial requirements.

  http://www.children.gov.on.ca/htdocs/English/topics/childrensaid/reportingabuse/abuseandneglect/abuseandneglect.aspx

  (bold is mine)

  Do professionals and officials have any special responsibilities to report?
  Professionals and officials have the same duty as the rest of the public to report their suspicion that a child is or may be in need of protection. However, the Act recognizes that people working closely with children have a special awareness of the signs of child abuse and neglect, and a particular responsibility to report their suspicions. Any professional or official who fails to report a suspicion is liable on conviction to a fine of up to $1,000, if they obtained the information in the course of their professional or official duties. [CFSA s.72 (4), (6.2)]
  Who does the Act consider a person who performs professional or official duties?

  • health care professionals, including physicians, nurses, dentists, pharmacists and psychologists

  • teachers and school principals

  • social workers and family counsellors

  • religious leaders, including priests, rabbis and members of the clergy

  • operators or employees of child care programs or centres

  • youth and recreation workers (not volunteers)

  • peace officers and coroners

  • child and youth service providers and employees of these service providers

  • any other person who performs professional or official duties with respect to a child

  These are examples only. If you are unsure whether you fall into any of these categories, ask your local CAS, professional association or regulatory body. [CFSA s.72 (5)]

  
  Excellent post, OC, and I wholly agree - check out the law in your country/province/territory/state.
  
  
  
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  OrphanCrow

  GL Tirebiter: This statute consistently uses singular wording, not plural. That suggests that a Judicial Committee meeting would not be privileged as a penitential communication when than one elder is involved or if it includes witnesses. Is a legal professional in the audience able to confirm or refute this conclusion?

  I am not a legal professional but the judge in the Conti case is one. This is what he said in relation to penitential communication:

  The privilege for penitential communications does not apply unless the communication is made “in the presence of no third person so far as the penitent is aware,” a condition not satisfied at the Kendrick family meeting with the Congregation elders. (See Roman Catholic Archbishop of Los Angeles v. Los Angeles Superior Court, supra, 131 Cal.App.4th at pp. 444–445 [no privilege for communications 17 in church interventions with troubled priests because participants knew communications would likely be shared with more than one person].)

  pg. 16 from

  http://www.courts.ca.gov/opinions/documents/A136641.PDF?hc_location=ufi