Clergy Mandatory Reporting

Note: This article covers legal obligations by clergy to report. It does not discuss whether clergy may have a moral or ethical obligation to report.

If a church member confesses to a pastor that the member may have committed child abuse or neglect, is the pastor legally required to report it to CPS or law enforcement?

In some states, yes. In some states, no. In most states, it depends.

There are two main questions to consider to reach the ultimate answer:

  1. Are clergy mandatory reporters in your state?
  2. If so, is there an exception to the reporting requirement for private confessions made to them?

If the answer to 1 is yes, and the answer to 2 is no, then clergy are legally required to report. Otherwise, those communications remain confidential.

As you will see in our Law & Policy Vault, clergy in most states are mandatory reporters of child abuse and neglect. This creates a general rule that clergy are required to report.

Yet most states have an exception to the general rule for what are often called penitential communications. The term comes from the word penitent. Used as a noun, penitent means a person who repents of sin. Each state has its own definition, or even a different term, for penitential communications. But these can generally be described as communications made in private by the church member directly to the clergy member, typically confessing a sinful act. These communications are generally referred to as clergy-penitent communications.

In most states, clergy are not legally required to report penitential communications concerning child abuse or neglect to CPS or law enforcement. But in some states they are.

Another legal concept known as privilege is also relevant to this discussion. While confidentiality pertains to whether clergy are required to report, privilege pertains to whether the clergy member’s report or testimony may be admissible as evidence in court. If the report or testimony about the penitent’s communication may not be used as evidence, we would say those communications are privileged. In most states, even in some where reporting is required, penitential communications to clergy remain privileged.

For both confidentiality and privilege, simply communicating something to a pastor does not make the communication confidential or privileged. Generally, the communication must be (1) intended to be private and confidential, (2) made to the clergy member in their official or professional capacity, often as part of the regular course of church/denominational procedure, and (3) either a confession or part of spiritual counseling. Confidentiality and privilege typically do not apply when clergy learn of potential maltreatment through other means or channels. A church’s official written policies may also be a factor in determining confidentiality.

In all of these laws, the legal definition of clergy is quite broad. It typically includes pastors, ministers, priests, rabbis, imams, certified Christian Science Practitioners, and sometimes others. It may or may not go beyond the head minister. Potentially, anyone whom the communicator reasonably believes to be a member of the clergy may be included.

Sometimes a pastor may have more than one role. Mandatory reporting laws also include teachers, child care workers, family or addiction counselors, or other roles. So it is important to note that confidentiality and privilege only apply when the clergy member is acting in their clerical capacity.

We have handled cases for member families who were falsely reported by church workers or volunteers who likely reported their concerns to a pastor. Since these communications were not in a clergy-penitent situation, confidentiality and privilege likely would not have applied.

We certainly encourage families to seek wisdom and counsel from their spiritual shepherds. At the same time, it is important that pastors be familiar with these laws so they know what their legal obligations are.

Note on Research: In states where clergy are mandatory reporters and there is no express exemption for clergy-penitent communications, we presume the communication will not be considered confidential—to the extent that clergy are required to report suspected maltreatment. Additionally, every state recognizes some form of the clergy-penitent privilege, so unless the maltreatment laws specifically abrogate the privilege, we presume the communication to still be privileged in child maltreatment cases.

Remember that non-members can access the Law and Policy vault with a free account. Log in to see the law on clergy mandatory reporting in your state, and check out all of the other issues we cover in the vault.

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