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Hi, I'm Jerry Sparks, president of AG Financial Insurance Solutions, and we've got with us Rich Hammer, renowned attorney and author of the Church Law Tax Report. And today we're going to talk about what is child abuse, who do you report it to, and what are the legal risks of not reporting. Rich, what are some of the current stats on the reporting of child abuse?
Well, Jerry, it's a very important topic we've selected today because of some of the statistics I'll share here in a moment and also because of the volume of questions I get on this topic. And just to set the stage here, the most recent statistics, I think for last year, indicate that there were about three and a half million reports of child abuse in this country. Think about that: three and a half million reports. And those reports collectively, uh, involved over six million children. Some of the reports involved more than one child, so six million children were involved in those three and a half million reports. How many of those were for sexual abuse? About 10 percent. 78 percent were for neglect, and that's why most abusers are female; it's mothers at home with a minor child, and they, they, the child experiences neglect and it's reported. Uh, so, uh, there's also physical abuse; that's a smaller component. But so you take the sexual abuse, the physical abuse, and the neglect; those constitute child abuse. And so just be aware as we go through this material today that the duty to report is not limited to sexual abuse; it includes child abuse of any of these categories. The latest data indicates that about 30 percent of, uh, victims of child abuse will, in turn, victimize their children or other children when they become adults. And one other stat, Jerry, I want to mention is victims of child abuse are nine times more likely to commit felonies as adults than those who are not abused. The best evidence today indicates that about 30 to 33, about one out of three adult women has experienced some form of sexual abuse as a minor, and, uh, maybe about one-sixth of adult males. So it's a significant issue that we're talking about today.
Wow, that's unreal statistics. Do all states require reporting of child abuse?
Yes, they do. And this, this has been a, a trend, uh, over the last half century in this country as we became aware that this is a significant risk. You know, Freud said it's not—he thought it was just fantasized—and, and the concept of child abuse was non-existent, and his dominance, uh, affected this issue for generations. And all it's in more recent years that we've understood that he was wrong, that many of these reports of abuse are not just fantasies of, uh, children, but they in fact are happening. And that was a major sea change, and, and it led to the, uh, enactment of statutes now in all 50 states requiring mandatory reporters to report child abuse. And by the way, Jerry, uh, the, the duty to report, if you're a mandatory reporter—we'll talk about that in a minute—is, uh, not just actual knowledge of abuse, but it's also a reasonable suspicion that child abuse has occurred. That is a significant difference. So a lot of times I see pastors, church leaders, church staff, they, they think that abuse occurred, but they're reluctant to report it because they're not 100 sure that it occurred. So that's, that's part of the dynamics here. So let's just move into what is reportable child abuse.
Well, as I said at the outset, it includes sexual abuse; it includes physical abuse; and it includes neglect. In all of these cases of, of minors. And again, neglect is 78, almost 80 percent—almost four out of five cases—involve neglect. The sexual abuse is about 10 percent; that's no doubt the most significant issue for churches because if you have somebody guilty of sexual abuse of a minor and that person is a member, or worse, somebody that works with children in your church, you've got a problem. You know, a lot of people are pastors, and I've, you know, a lot of people have heard about pastors' privilege or clergy privilege. How does the clergy privilege apply?
Well, before I get to that, let me make a preliminary comment, uh, and that more generally, Jerry, is this: what, what is the relevance really, or the significance, the impact of these child abuse reporting laws on ministers? And it's interesting that I think there are unique applications. Number one is the fact that ministers just receive a lot of information about child abuse. It could be a spouse, uh, informing the pastor that her husband or wife is abusing their children. It could be somebody that just has personal knowledge of child abuse. Sometimes it's an adolescent that informs the pastor that he or she has been molested, maybe by a step-parent. So, Jerry, pastors are repositories of a lot of reports of child abuse, and so this, this just really ratchets up the significance of this issue and makes it so important for ministers to understand their child abuse reporting duties. I see in many cases—because I, I deal with hundreds of these cases every year, and I've done that for many, many years—um, many, there's just a natural instinct on the part of a lot of pastors to, um, to treat this as an internal matter of church discipline. We don't need to report this. I don't, I don't know, I don't know what my reporting duties are, even if I am a mandatory reporter. We're going to deal with this as an internal matter of church discipline. I see that impulse. By the way, that's no excuse to reporting abuse. If you're a mandatory reporter, there's no exception for handling these matters as matters of church discipline. Another issue involving pastors is the common trend and tendency in churches, Jerry, that when you have a member or a staff member that learns of abuse, they just, they feel like they need to tell the senior or the lead pastor. Well, that's fine, but that, in, in by my analysis, in 48 states, that does not relieve you of the duty to report the abuse yourself if you're a mandatory child abuse reporter. So it becomes important to know if you're a mandatory reporter or not, and if you are and you're a staff member, maybe an associate pastor, you do not discharge your duty to report by telling the lead pastor. Other than in a couple of states, you still have an independent duty to report that to the hotline. So it becomes very important for you to be familiar with your state child abuse reporting law. And I can tell you, I, if I would at random call 100 pastors and ask them, "Do you, are you a mandatory reporter in your state?" 99, maybe 100, would say, "I don't know." That people do not know the answer to that question, whether they're mandatory reporters, much less whether the clergy privilege that you talked about applies. And one other thing I'll say about pastors: I've seen a reluctance on their part to report because the person who's accused of abuse may be a respected member of the congregation, maybe a board member, and, "Man, I don't want to cause trouble for this person. You know, he may leave the church; it could be a scandal. So we'll just kind of deal with this internally." And I see that dynamic at play in many of these cases. So those are some of the issues that are unique, I think, to, to pastors. And another one, as you mentioned, Jerry, is the whole history of the clergy penitent privilege. And it is true that a number of states have enacted legislation; in fact, there are 32 states out of 50 that have enacted laws saying that clergy, even if you're a mandatory reporter under our state law, you are excused from the duty to report information that you obtained solely in the course of a privileged conversation. Now, what's a privileged conversation? It's a communication between a pastor and another person who is seeking the pastor out for spiritual counsel in a confidential setting. So, uh, if the privilege applies in 32 states, their, uh, the pastor is treated as a permissive, not a mandatory reporter. But, but here's the point I want to make: Are you sure? Even if you're in one of those 32 states, that doesn't mean happy days are here again and you don't have to report anything. Whether you should report or not is a very significant and often complex legal question. For example, do you really understand your state's clergy penitent privilege statute? These vary from state to state. In many states, maybe 15 or so, the clergy penitent privilege does not apply if there's a third person present because it's not a confidential communication. Do you have that rule in your state? If you do, the fact that it's a husband and wife, the fact that it's a woman and a friend that come to you and relate information about child abuse, you're not off the hook because that's not a privileged conversation. Did that person really come to you for spiritual counsel, or was it rather just to report something to you about their spouse or another member of the congregation? So for the clergy privilege to be activated, the person must be seeking out the pastor as a spiritual advisor, and that often is not the case in this context. In some states, the clergy penitent privilege only applies to courtroom testimony or depositions; it doesn't apply to a duty to report child abuse. So those are some of the unique aspects of the clergy dependent privilege. So don't, don't think that just because I'm a minister, well, I've got this privilege, and so even if I'm a mandatory reporter, I don't have to report. By the way, as I said, that is true in 32 states if the privilege does apply, uh, you, in other words, you obtain this information concerning that child abuse in a privileged conversation, uh, that, that may not apply because when you think about it this way as a minister, how many of your conversations are truly subject to that privilege? And the fact is, it's a tiny minority. So don't just leap to the conclusion that that a particular conversation or the information I received about child abuse was in the context of a clear of the clergy penitent privilege, because I would say in many, many instances it's not. But if it truly is—if somebody, like in the classic case, somebody comes to a pastor and confesses to having abused a child—uh, that I think is the core of the clergy penitent privilege, especially if no third person is present. By the way, in some states it doesn't matter if a third person is present if their presence is in furtherance of the purpose of the conversation or the privilege. And again, it shows you why it's so important to be aware of the clergy penitent privilege in your state. If you have my four-volume set, Pastor, Church, and Law, Volume One, uh, there's an appendix that gives the clergy penitent privilege statute in all 50 states. And one last thing I'll mention, Jerry, about the clergy privilege is even if it applies—and I've talked to hundreds, maybe thousands of pastors about this—they, we go through the, the facts of a case, they're, they're presenting to me; we determine if there's reasonable cause, uh, to report, which is what triggers the duty to report if you're a mandatory reporter, uh, but, uh, do they, maybe, maybe we conclude that it, the clergy privilege applies and therefore they're technically not legally required. And you better have a good basis for that because, like I say, it's a complicated question, and reasonable minds can come to different interpretations. But I often apply what I call the Sleep Test. And what I mean is this, uh, so what if we decide there was a privileged conversation whereby you obtain this information about child abuse, and so legally under your state law maybe you're not a mandatory reporter; you're not required to report. But can you sleep at night if you don't report? That's what I call the Sleep Test. So don't hide behind technicalities if you have reasonable basis to believe a minor is being abused, especially sexually abused. In my opinion, legal duty or not, there's a moral or ethical duty to report this, and that's a very important point. Apply the Sleep Test. And that's why, Jerry, I can say in handling these cases for many, many years, thousands of times, I have never said to a single pastor not to report a, a case of child abuse. The fact that you're calling me about it indicates you have suspicion, reasonable suspicion that abuse has occurred. And incidentally, uh, we're going to come to this later of why, why pastors don't report, but back to you.
Okay, so let's just say there is reasonable doubt that there may have been some, for some, some form of child abuse. Who actually, do they report it to?
Well, I, I would, I would say that if you're an associate pastor or non-clergy staff member at a church and you find out about it, or a volunteer worker, or just a member, there's this, um, culture in churches that you report it to the senior pastor, and you think that that discharges your responsibility. As I said before, that's true in, I think, two states, and but in the vast majority of states, reporting to the lead pastor of your church does not, uh, even if you're required to do that, doesn't relieve you of your personal criminal and potentially civil liability for failing to report if you're a mandatory reporter under state law. And by the way, uh, the definition of a mandatory reporter of child abuse is expanding over the years, and more and more states are embracing the idea that everybody is a mandatory reporter. Historically, what the states did was listed a bunch of vocations, like in my state of Missouri, there's like 50 occupations that are listed as mandatory reporters. You read through that list and you're thinking, "Who, who are we leaving out here?" Uh, so when the list gets sufficiently long, some states just forget it and say, "We'll just say everybody is a mandatory reporter." That's a very common definition. But the fact is, you need to know if you're a mandatory reporter, and, and if you are, you don't discharge your duty in most states by telling the lead pastor. That's not to say that you can't tell the lead pastor, but it doesn't get you off the hook of civil and criminal liability for not reporting. Now, and here's another problem that happens when you tell the lead pastor: In some cases, I've seen this happen, the lead pastor will do anything to, to tell you not to report because of relationship. Maybe this is a board member you're, you're talking about that's abused a child, and so the pastor will try to, uh, protect or defend that person and, uh, and, and restrain that church staff member or, uh, volunteer from reporting the abuse. Other than that, your duty to report is to the child abuse hotline in your state. In some states you're allowed to report to, uh, law enforcement, and that's very helpful. In some churches, in close cases where you have a law enforcement person in your congregation, maybe it works for the local police or sheriff's department, you, you actually are able to inform that person. That's not true in all states, and it's probably a minority of states, but it's a sizable minority. And so again, it shows you why it's important to know what your state law says about that.
Rich, we've got a question here, and I just figure this is a good time because actually it has to do with children's workers. It says, "At what age should children's workers not help a child in a restroom concerning wiping, pulling up pants, pull-ups, etc.? I'm uncomfortable with workers going into a bathroom stall with a child, even with preschoolers."
Well, I think the important point there is, uh, you have to have the two-adult rule in operation when you're dealing with infants. They can't explain what happened to them if there's suspicious marks on their body. So it's, it's incumbent upon a church to be sure that you have the two-adult rule in operation. Uh, I guess you could say, "Well, what about a mother and her teenage daughter?" That's probably okay. The best thing would be two adults. I know that takes them away from supervision of the rest of the group, but that is a, that is a weak link in any church is how you handle diaper changing, and you just have to staff up to, to be sure that you have adequate supervision of the group. And I recommend two adults changing the diapers. Now, one of them may just be observing and may be able to supervise at the same time. Depends on the architectural layout of the, of the church nursery. A number of considerations go into that, but that would be my response to that.
Yeah, my wife and I worked in the nursery for several years, and although, uh, now we do not let men change diapers, at that time my wife said she changed half the diapers, that she made me change most the diapers, um, and I will tell you that she was always present while we were changing diapers. If they went into the restroom by themselves, okay, and they could do it by themselves, you could leave the door open just a little bit, and when they're done you can help them do whatever you need to do. But once they're old enough to go in there by themselves, I say let them go in there if they're comfortable with that. But again, having two adults present at all times is very important.
Okay, let's get into why don't ministers often report a claim of child abuse?
Well, I think there's a number of reasons that I've observed over the years of why ministers decide they're not going to report child abuse that's been presented to them, usually in some type of, often in some type of, maybe a counseling session, some type of communication with, with a member of the church, not necessarily in a counseling setting. Like if somebody comes into a pastor's office and just says, "Pastor, uh, I believe that such and such an incident of child abuse has occurred," that's not spiritual counsel; the clergy privilege doesn't apply there. Many courts have said that when, when a person just comes in and makes an observation, a pastor, "I think you need to know this information," that doesn't transform that into a spiritual, confidential counseling session that activates or triggers the clergy pen and privilege. But why do pastors not report? Well, number one is ignorance of the law; they don't know; they have no idea what their duties are under state law to report child abuse. As I said, Jerry, that, that describes 99 to 100 of all pastors; they have no idea. And hey, listen, I'm sympathetic to them because in the past these laws changed fairly frequently. In fact, I, for years, did an update every year in my Church Law and Tax Report newsletter summarizing all 50 state child abuse reporting laws, and I, I mentioned four things: These laws are 100, 200 pages long, some of them, and people aren't going to read through that. So I extricated, I extracted the relevant points: Number one, what is the definition of reportable child abuse in your state? Number two, who are mandatory reporters? Number three, where do you report? And number four, does the clergy penitent privilege apply? And so those are the things you can zero in on your state and see very quickly what the, what the duty to report may be. So, but most pastors do not have any idea, and that's one of the reasons they don't report. Another reason is they are, they fear being sued. Well, what if, you know, I don't have, I don't, I didn't see this abuse occur with my own eye, so I don't know for sure that it occurred. I just had somebody tell me that they think that it occurred. Is that reasonable cause to believe? And, and so they shy away from reporting because they don't have absolute certitude that the abuse occurred. Remember what I said: If you're a mandatory reporter, the duty to report the abuse is triggered not only by actual knowledge that it occurred, but also by reasonable suspicion, reasonable cause to believe that it occurred. And if you, and so the point is, if you only have reasonable cause to believe that the abuse occurred, that means it may not have occurred. You have reasonable belief that it did, but that is not absolute certainty. So there'll be some cases where it didn't occur, and cannot be sued for that. And I, that's a real, that's a real concern. But as we'll see, uh, the, the response to that is the concept of limited immunity that we'll come to here in a minute. So ignorance of the law and one reason ministers don't report abuse; number two, fear of being sued; uh, number three, they report to somebody else; maybe it's an associate pastor, as I said before; they think they can report to the senior pastor and just discharge their duty; number four is they, uh, fear that their identity is going to be revealed. If I report this to the hotline, they're going to tell the person I reported that I'm the one that reported it, and I'm going to be in big trouble. Uh, that is not true. You, you are given the assurance of anonymity, uh, when you report abuse, and, uh, it should never be revealed to somebody else that you were the reporter.
What are the legal risks of not reporting, and can a person be held personally liable for not reporting?
Yes. If you're a mandatory reporter, if you're a mandatory reporter as defined by your state child abuse reporting law, then you are, you're subject to criminal liability if you don't report. Now, it's a misdemeanor; it may only be 90 days in jail; there may only be a 500 or a thousand dollar fine. In fact, I've never known personally of a ministry that was sentenced to prison, uh, for violating a mandatory reporting obligation. Uh, I've known of a couple cases where they were prosecuted criminally, but those cases were settled out of court. Uh, so it's not common that clergy are, uh, are criminally penalized for not reporting, but that's one potential risk of not reporting. But I think a far greater risk is the risk of civil liability for not reporting.
What do you mean by that?
Well, you know, here's a six-year-old that's being sexually abused by her stepfather, and somebody informs the pastor, and he decides, "Well, that guy's a board member, uh, I'm gonna, you know, I'll just ask him, you know, Bob, did you, did you abuse your stepdaughter? Oh, of course not, Pastor. Well, okay, I was sure you didn't, but then good." So the pastor doesn't report it, and even though there may well be reasonable cause that that has occurred. Now think about that six-year-old; she grows up, and she finds out that this abuse continued for years, and the pastor, she finds out, knew about it when I was six years old and didn't report it. Can she sue the pastor for civil damages in a civil lawsuit for failing to comply with the state child abuse reporting law if he's a mandatory reporter? And that's another basis for liability, and, uh, and then there's also the potential liability for the church as the pastor's employer for liability because of the pastor's failure to report.
I've got a couple more questions for you here. Are pastors required to report even if they're doing counseling?
Well, that gets into the clergy privilege that we talk about, and if they're doing counseling, you know, oftentimes that means the clergy penitent and privilege will apply to that conversation, which means the pastor may be off the hook if he otherwise is a mandatory reporter under state law; that person, that pastor, may become a permissive reporter, meaning there's no criminal liability or civil liability for not reporting. But again, you better be sure that the clergy privilege in fact applies, which you don't want to make just a flippant, uh, assumption. But Jerry, let me back up and make one other point: There's one risk we've talked about; three risks of not reporting: Misdemeanor liability, civil liability of the pastor, civil liability of the church. There's one risk we've alluded to that actually is not a risk, and that's the risk of liability for making an unsubstantiated report or a report that turns out to, to not be substantiated. It turns out, the last I checked the stats on this, that about 50 percent of all reports of child abuse are never processed by the state simply because they're overwhelmed with cases; it's triage; they only do the most significant, most serious ones. So what if you report, uh, abuse, and it turns out that it's, it's not confirmed? Can you be sued for that? Every state provides mandatory reporters with limited immunity from liability. That this is very important. And what that means is you cannot be liable for reporting abuse even if it's not substantiated or verified and it's dropped. You can't be liable for that because you're given limited immunity, which means you're given immunity from liability; it's limited because it doesn't apply to malice. So you report your neighbor because they're dogs out in the backyard at night waking you up, "I'm going to report him as a child abuser," you know, some crazy thing like that; that's malicious. Yes, you can be a person, you can be liable for that. But
I've never seen that happen, obviously. In the church context, there are seven states, Jerry, that have enacted statutes that specifically create a civil cause of action for victims of child abuse if a mandatory reporter knew of the abuse but failed to report. And those are Arkansas, Colorado, Iowa, Michigan, Montana, New York, and Rhode Island. If you're in one of those states, there is a state law that says you can be liable if you're a mandatory reporter and you don't report.
Now, there have been a number of cases where the courts have addressed this issue, and there have been three or four states where the courts have said the same thing: even if there's no statute, we're going to find you liable if you don't report, or there is civil liability for a mandatory reporter for not reporting, just as a matter of common law, even though there's no statute. But a number of state courts in other states have rejected that theory of liability.
We're running a little short on time, so actually, can you give us a template or recommendations on, uh, responding to child abuse? Our template, okay. Uh, yes. Here's kind of a template that I, I utilize, and it's simply this: here, here's, here's the checklist that I go through. Number one: Am I a mandatory or permissive reporter of child abuse? You need to know that if you're a mandatory reporter, report it. Uh, and as I said, ethically, morally, even if you're a permissive reporter, I've never told anyone who's contacted me not to turn it over to the authorities and let them decide, uh, what to do.
Number two: If the allegations are true, do they constitute reportable child abuse? Many states, surprisingly, define reportable child abuse very narrowly to be limited to abuse inflicted by a parent, guardian, or caretaker. That doesn't apply to a Sunday school teacher or maybe even a nursery worker in a church. It doesn't apply to a whole host of people, and so you may end up with a case where there's not reportable child abuse. But again, that just means you're a permissive reporter; you can still report if you choose to do so; you're not required to do so.
Here's number three: Do I have reasonable cause to believe that abuse occurred? You don't need actual certainty; reasonable cause triggers the duty to report. Number four: Does the clergy-penitent privilege apply? As we've seen before, even if it does, that doesn't—again, that's a legal conclusion—are you absolutely sure? Don't hide behind that unless you're absolutely certain. Probably we would recommend a legal opinion on that if you're not going to report. But even if it does apply, the clergy privilege, and you're not required to report, does that mean you shouldn't report? And as I've tried to emphasize in this presentation, still report.
Next: Does the alleged abuse involve pedophilic behavior, meaning abuse of a prepubescent child? These people are very promiscuous and predatory and present probably the greatest risk to a church, and these people are going to molest again and absolutely need to be reported. Do I have any risk of civil liability under state law, whether it's a court decision or statute, if I don't report? Should I discuss the abuse with the state agency that handles these cases, or the hotline, before I make the report and just tell them what the facts that I know? Do I have a reporting duty? Let them tell you, which they'll be happy to do. Uh, and then maybe I should persuade the informant, the person who told me about the abuse, to report the abuse as well. And, uh, finally, am I allowed to report to law enforcement personnel under state law?
You know, this has been just a, a tough subject in that a lot of information—it's all different because there's 50 different states; we have different laws in each of those 50 states. But I appreciate your time in, uh, in presenting that. If you have more questions, feel free to give us a contact. Next month we're going to be talking about, does your church have a cell phone policy and the most recent case, texting case that we have, and how that texting case can affect you. We appreciate your time, and we'll see you next month. Thank you.