Several years ago an article was published in a magazine called “Christianity Today” which identified what the author believed to be “Ten Deadly Lawsuits”. He subtitled the article: “Your church may be more vulnerable than you think”. Here is the list of those ten lawsuits churches are exposed to (at least when this article was published in 2001; NOTE: these are not listed in any particular order):
1. Suits based on negligence—general public.
2. Suits based on negligence—parishioners.
3. Suits based on negligence—"nuisances" that attract children.
4. Suits based on negligence—supervision of employees.
5. Suits based on sexual harassment.
6. Suits based on defamation.
7. Suits based on apparent authority.
8. Suits based on disputes over election of the pastor.
9. Suits based on disclosure of confidential information.
10. Suits based on unfair acts.
I want to take a few moments and address the exposure listed as #9: “Suits based on disclosure of confidential information.”
In 1974 the Child Abuse Prevention & Treatment Act (or CAPTA) was introduced, designed to protect children and to create mandatory reporting policies relative to suspected child abuse. CAPTA was most recently revised and passed by Congress in January 2007.
CAPTA gave much momentum to what has become known as “Clergy as Mandatory Reporters of Child Abuse and Neglect”. The dilemma is that through the years, clergy have felt the “protection” of what have always heard referred to as “Privileged Communication”; that is, the freedom and privilege of clergy to receive confidential information in the course of their counseling or standard ministry practice and know their rights to keep that information privileged between the parishioner and the clergy. Many have heard of this protection under the terms of either “attorney-client privilege” or “doctor-patient privilege”, however, many states do in fact recognize “clergy-parishioner privilege.” So then, what does a pastor do when he has information that under CAPTA might require that he report a potential child abuse situation, however, under clergy-parishioner protection he feels the need to protect the information he or she has received?
Basically all 50 states, the District of Columbia and the U.S. territories all have statutes that identify the persons who are required to report child maltreatment and/or abuse under certain circumstances. The laws in each state differ in varying degrees. In several of these states, clergy are included in those who are required by law to report such suspicions. But then there are also laws which allow for what has become known as "Privileged Communications”.
So, here is a scenario to consider. A divorce couple has split custody over a child; we will call the child "Johnny." One Sunday the pastor of the church where Johnny’s father attends notices some bruises on Johnny. That particular weekend Johnny has been staying with his father. During the invitation at the end of the service Johnny's father comes forward to tell the pastor that he needs prayer for his temper. They pray together and the pastor asks to meet with Johnny's father after church. They meet and Johnny's father admits that he shoved Johnny after getting upset with him and that is how Johnny got his bruises. The father admits this has happened before but now he is through with his fits of rage. The pastor provides counsel, but decides to take no action relative to advising Johnny’s mother or any authority.
Fast forward several weeks and the pastor gets a call from Johnny's mother. She learns from Johnny what has happened and wants to know why the pastor did not tell her or report this to the authorities. The pastor cites his "clergy-parishioner" privilege. Two weeks later the pastor and the church are sued.
As a risk management professional or an insurance professional, what counsel would you provide to this pastor? What concerns might you have relative to possible coverage issues under the church policy?
CLOSING COMMENTS: This subject matter is becoming more and more sensitive. I have provided below several links that you might want to visit to review some of the materials available relative to this subject. But more importantly, if you yourself are part of a local church, you might want to provide some sort of direction or at minimum direct your senior pastor where he or she might want to go on-line to complete additional research for their protection.
Overview of Child Abuse Prevention & Treatment Act (CAPTA) http://www.childwelfare.gov/pubs/factsheets/about.cfm
Complete copy of CAPTA The complete text of the law (U.S. Code title 42, chapter 67) http://www4.law.cornell.edu/uscode/42/ch67.html
Copy of Child Welfare Information Gateway article with summary of state laws for each state. http://www.childwelfare.gov/systemwide/laws_policies/statutes/clergymandatedall.pdf
National District Attorneys Association (NDAA)-association of prosecutors against such actions; 112 pages; very exhaustive state listing;
Disclaimer. This blog/web page does not constitute legal advice. This is a rapidly changing area of the law. You should consult a lawyer if you have any questions about your reporting duties. On-line legal information can become out of date and are subject to legal interpretation depending on particular facts and circumstances.