When Clergy Privilege Is Not an Exemption from Mandated Reporter Laws
I ran across another cautionary tale about mandated reporting this week. The Arizona Court of Appeals recently decided that clergy who failed to make a mandated report might not be protected by the state’s clergy privilege. Three minors brought suit against the Church of Latter-Day Saints and two church bishops, alleging that their father had confessed to the bishops that he had been sexually abusing his children and that, because the bishops did not report the confession to law enforcement, the abuse continued for at least six (6) more years. The church and bishops filed a motion to avoid a trial, arguing that their only knowledge came from privileged communications. The appellate court held that the case had to go to a jury to decide whether the privilege applied to this fact situation.
Arizona’s clergy exception to the mandated reporting statute is unusual in that it allows clergy to withhold a disclosure if that clergy member “determines that it is reasonable and necessary within the concepts of the religion to do so.” The exemption applies only to communications and not to the clergy person’s “personal observations.” It also requires that the communication come in the recipient’s “role as a member of the clergy.”
The appellate court focused on a second disclosure, when the father confessed the abuse to a church disciplinary council meeting. The court noted that the council included both clergy and non-clergy and held that a jury could conclude that the father waived his privilege with that second disclosure.
The court also addressed the question of whether withholding the initial disclosure was “reasonable and necessary” under church doctrine. The opinion noted a church handbook that requires disclosure to civil authorities “when disclosure is necessary to prevent life-threatening harm or serious injury.” According to the court, those facts raised a genuine issue whether withholding the father’s disclosure actually was “reasonable and necessary” within the parameters of the church handbook and church doctrine.
The lesson here for all religious groups that serve youth is that you can’t just assume that your state will exempt you from mandated reporter obligations. Any privileges will be narrow, and courts will construe them very strictly. Be sure that you know what the rules are and how they apply to particular situations. Definitely consult with an attorney who understands both your church doctrine and your state’s mandated reporter law so that you don’t find yourself on the wrong end of a police investigation or civil lawsuit.
For more help, check out our online course about principles of mandated reporting.
