A message from the church to youth pastors

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What Youth Pastors Should Know about Reporting Child Abuse
by Richard R. Hammar, J.D., LL.M., CPA

It is essential for youth pastors to be familiar with child abuse reporting requirements under state law. Unfamiliarity with these requirements can lead to criminal and civil liability. This article provides an overview of this important topic.

It is common for youth pastors to learn that a minor is being abused. This can occur in a number of ways, including a disclosure by the victim, by a friend or relative of the victim, or by the perpetrator's confession. Often youth pastors assume that they can resolve such matters by counseling with the victim or the alleged offender without contacting civil authorities. Such a response can have serious legal consequences, including the following:

Youth pastors who are mandatory reporters under state law face possible criminal prosecution for failing to comply with their state's child abuse reporting law.
Some state legislatures have enacted laws permitting child abuse victims to sue pastors for failing to report child abuse.
Some courts have permitted child abuse victims to sue pastors for failing to report child abuse.
As a result it is imperative for youth pastors to be able to answer the following questions:

What is the definition of reportable "child abuse" under my state child abuse reporting law?
Am I a mandatory reporter of child abuse?
What if I learn of child abuse in the course of a conversation that is protected by the clergy-penitent privilege? Am I still required to report?
How do I report child abuse?
Each of these questions is addressed below.

What is child abuse?

All 50 states have enacted child abuse reporting statutes in an effort to protect abused children and prevent future abuse. Child abuse is defined by most statutes to include physical abuse, emotional abuse, neglect, and sexual molestation. A child ordinarily is defined as any person under the age of 18 years.

Some states specifically limit the definition of child abuse to abuse that is inflicted by a parent, caretaker, or someone with legal responsibility for the welfare of the child. Such a statute, if interpreted narrowly, might not require ministers and lay church workers who are mandatory reporters of child abuse under state law to report incidents of abuse inflicted by a church custodian, associate minister, adolescent, or volunteer youth worker.

Am I a mandatory reporter of child abuse?

All 50 states identify mandatory reporters, those persons who are under a legal duty to report abuse to designated civil authorities. In most states, mandatory reporters must report both actual and reasonably suspected cases of child abuse. Failure to do so is a crime (usually a misdemeanor).

Some states define mandatory reporters to include any person having a reasonable belief that child abuse has occurred. Youth pastors will be mandatory reporters under these statutes.

The remaining states define mandatory reporters by referring to a list of occupations, which generally includes physicians, dentists, hospital employees, nurses, coroners, school employees, nursery school workers, law enforcement officers, and licensed psychologists.

Pastors are specifically identified as mandatory reporters under a few of these statutes. Even if they are not, they may be mandatory reporters if they fall within a listed classification, such as school or childcare workers, administrators or counselors.

Youth pastors are mandatory reporters of child abuse under the laws of many states, so they should never assume they have no duty to report.

Youth pastors who are not mandatory reporters under their state's law generally are considered permissive reporters, meaning they may report cases of abuse to the designated civil authorities but are not legally required to do so.

Youth pastors often ask if they can be liable if they report a suspected incident of child abuse that later proves to be unfounded. Every state grants limited immunity to reporters of child abuse. This means that reporters cannot be sued simply for reporting child abuse, unless they do so maliciously. The reason every state provides legal immunity to reporters is to encourage child abuse reporting.

The fact that you are not a mandatory reporter of child abuse under state law does not mean that you should not report known or reasonably suspected incidents of abuse or molestation. Many youth pastors who are not mandatory reporters choose to report abuse, especially if the evidence is strong and the victim is young, or to protect other minors from being molested.

What if I learn of child abuse in the course of a conversation that is protected by the clergy-penitent privilege?

Pastors who are mandatory reporters of child abuse under state law are under a profound ethical dilemma when they receive information about child abuse in the course of a confidential counseling session that is subject to the clergy-penitent privilege. They have to choose between fulfilling their legal obligation to report and honoring their ecclesiastical duty to maintain the confidentiality of privileged communications.

A number of states have attempted to resolve this dilemma by specifically exempting pastors from the duty to report child abuse if the abuse is disclosed to them in the course of a communication protected by the clergy-penitent privilege.

Other states, while not specifically excluding pastors from the duty to report, specify that information protected by the clergy-penitent privilege is not admissible in any legal proceeding regarding the alleged abuse.

Some state child abuse reporting statutes do not list the clergy-penitent privilege among those privileges that are abolished in the context of child abuse proceedings. The intent of such statutes may be to excuse pastors from testifying in such cases regarding information they learned in the course of a privileged communication.

Even if the clergy-penitent privilege applies in the context of child abuse reporting, it is by no means clear that the privilege will be a defense to a failure to report for the following two reasons:

The information causing a youth pastor to suspect abuse has occurred may not have been privileged, that is, it was not obtained in confidence or it was not obtained during spiritual counseling.
A privilege ordinarily applies only to courtroom testimony or depositions, not to a statutory requirement to report to a state agency.
How do I report suspected child abuse?

Persons who are legally required to report child abuse generally make their report by notifying a designated state agency by telephone and confirming the telephone call with a written report within a prescribed period of time. The reporter generally is required to do the following:

Identify the child, the child's parents or guardians, and the alleged abuser by name, and provide their addresses.
Give the child's age.
Describe the nature of the abuse. Most states have toll-free numbers that receive initial reports of child abuse.
Youth pastors should be able to answer the questions raised above on the basis of the child abuse reporting laws of their state. Unfortunately child abuse reporting laws are often difficult to understand because they consist of several pages of legal jargon.

To assist pastors in understanding their state's child abuse reporting law, the Church Law & Tax Report newsletter publishes an article each year in the May-June issue that summarizes the child abuse reporting laws of all 50 states. This article contains a table that answers each of the four questions in this article. As a youth pastor, you should be familiar with the material in this article.

. . . . .

This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is made available with the understanding that neither the publisher nor the author is engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.

From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.

Copyright 2003 by Church Law & Tax Report.


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Richard Hammar is an attorney and CPA specializing in legal and tax issues that affect ministers and churches. He is editor of Church Law & Tax Report and Church Treasurer Alert.


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