united-states confidentiality religious-law
Child Sexual Abuse - is a religious leader required to automatically report such accusations or confessions?
<p>All religious organizations seem to have some kind of a process for handling &quot;sin&quot;, i.e. some process where a religious leader is spoken to when someone has done something wrong.</p>
<p>My understanding is that in United States, statements made in a confession to a religious leader are privileged and confidential.</p>
<p>However, how does it work when the sin involves child sexual abuse?</p>
<p>Is a religious leader responsible to automatically report accusations (claims that someone else did something) or confessions (admissions of quilt by a person present)?</p>

<h2>Testimonial Privilege</h2>
<p>There is a tradition, embodied in law in many jurisdictions, that a religious confession, is not subject to compelled disclosure in court or to other legal process. This arose from the Catholic practice of confession, but has been long sine extended to the similar practices of other religious organizations.</p>
<p>Note that in most jurisdictions this applies <strong>only</strong> to confessions that a person makes about his or her own actions. It does not apply when a person reports some <strong>other</strong> person's actions to a religious authority. It also usually applies only to a formal, religiously mandated or authorized  communication, not to an informal chat or counseling session.</p>
<p>In the US this is usually a matter of state law.  Let's look at the relevant law in California, which is tagged as the relevant jurisdiction. (Laws in other US states are usually similar on this subject.)</p>
<p>Such a privilege usually applies only to actual testimony under oath, in a court or as part of court proceedings such as a deposition. The law concerning an initial report of possible child abuse is different.</p>
<p>According to the California Evidence Code, <a href="https://law.justia.com/codes/california/2009/evid/1030-1034.html" rel="nofollow noreferrer">Sections 1030-1034</a>:</p>
<blockquote>
<ol start="1033">
<li><p>Subject to Section 912, a penitent, whether or not a party,has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege.</p>
</li>
<li><p>Subject to Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege.</p>
</li>
</ol>
</blockquote>
<p>This means that neither the clergy-person, nor the person disclosing information to the clergy-person (the &quot;penitent&quot;) can be required to provide court testimony  about the content of the confession. (Note that this is part of the evidence code which governs what evidence is admissible in court.)  Also, the penitent may forbid such testimony from the clergy-person.</p>
<p>Note that the privilege must be explicitly invoked, it is not automatic. Questions may be asked about the confession, and only if the penitent or the clergy-person objects and invokes the privilege does it apply.</p>
<p>The previous three sections (included in the linked page) limit the privilege somewhat.</p>
<p>Section 1030 states that:</p>
<blockquote>
<p>a &quot;member of the clergy&quot; means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization.</p>
</blockquote>
<p>Section 1031 states that:</p>
<blockquote>
<p>&quot;penitent&quot; means a person who has made a penitential communication to a member of the clergy.</p>
</blockquote>
<p>Section 1032 states that:</p>
<blockquote>
<p>&quot;penitential communication&quot; means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.</p>
</blockquote>
<p>So the privilege only applies when the communication or confession was made one-to-one, with no other person present, is part of the regular religious practice of the church or group involved, and the clergy-person has a religious duty to keep the communication secret. All this is normally true of Catholic confessions. It may or may not be true of confessions or communications in other religious organizations, depending on their traditions and practices.</p>
<p>Also code <a href="https://law.justia.com/codes/california/2017/code-evid/division-8/chapter-3/section-912/" rel="nofollow noreferrer">section 912(a)</a> provides that:</p>
<blockquote>
<p>the right of any person to claim a privilege ... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege</p>
</blockquote>
<h2>Mandated Reporting</h2>
<p>In recent decades laws have bee passed requiring people in various positions of trust, or positions where such people are likely encounter evidence of child abuse, to report to law enforcement  when they know or reasonably suspect such abuse. Such people are called &quot;mandated reporters&quot;. A failure by a mandated reporter to make such a report when the mandated reporter has knowledge or reasonable suspicion of abuse is a crime.</p>
<p>Note that, in most jurisdictions, mandated reporting applies to <strong>all</strong> forms of child abuse, not just sexual abuse, but also physical and emotional abuse and neglect. Therefore in this answer &quot;abuse&quot; is not limited to sexual abuse.</p>
<p>In the US, this is a matter of state law. What positions carry mandated reporter status, what circumstances trigger a mandated report, an what the penalties are for failing to make a report all vary significantly from state to state.</p>
<p>Mandated reporter (MR) status is separate from the testimonial privilege described above in this answer. However, circumstances that would trigger the testimonial privilege <strong>may</strong> also trigger an exception from mandated reporting.</p>
<h2>Mandated Reporting in California</h2>
<p>In California Penal code <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&amp;sectionNum=11165.7" rel="nofollow noreferrer">section 11165.7</a> (a) (32) and (a) (33) list clergy members (defined as &quot; priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization.&quot;) and &quot;any custodian of records of a clergy member&quot; as mandated reporters (MRs).</p>
<p>However <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11166&amp;lawCode=PEN" rel="nofollow noreferrer">section 11166</a> (d) (1) provides an exception. Knowledge or suspicion acquired &quot;during a penitential communication&quot; need not be reported. For this purpose a &quot;penitential communication&quot; is defined as:</p>
<blockquote>
<p>a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of the clergy member’s church, denomination, or organization, has a duty to keep those communications secret.</p>
</blockquote>
<p>Note that only if the &quot;church, denomination, or organization&quot; imposes on the clergy member a <strong>duty</strong> to keep the communication secret is the communication a &quot;penitential communication&quot;. If there is no such duty, the exception does not apply.</p>
<p>Normally, a &quot;penitential communication&quot; concerns the actions of the person making the communication, not of some other person.  However in the course of a communication about him- or herself, a person may mention the actions of another person. That mention would, as I understand this law, be part of the penitential communication and thus subject to the exception in section 11166 (d) (1).</p>
<h3>When is a Report Mandated?</h3>
<p>Section 11166 (a) provides that:</p>
<blockquote>
<p>(a) Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in the mandated reporter’s professional capacity or within the scope of the mandated reporter’s employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. ... [The paragraph goes on to define the time and manner of reports.]</p>
</blockquote>
<p>Section 11166 (a) (1) defines &quot;reasonable suspicion&quot;:</p>
<blockquote>
<p>For purposes of this article, “reasonable suspicion” means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on the person’s training and experience, to suspect child abuse or neglect. “Reasonable suspicion” does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any “reasonable suspicion” is sufficient. For purposes of this article, the pregnancy of a minor does not, in and of itself, constitute a basis for a reasonable suspicion of sexual abuse.</p>
</blockquote>
<p>11166 (a) mentions a MR's knowledge of or observation of the possibly abused child. It is not clear to me if a discussion with a third party, such as another adult, would be sufficient to raise a &quot;reasonable suspicion&quot; such that a MR would be <strong>required</strong> to file a report, if there is nothing that the MR has personally observed that would raise or tend to confirm such a suspicion.</p>
<p>However section 11166 (g) provides that:</p>
<blockquote>
<p>Any other person who has knowledge of or observes a child whom the person knows or reasonably suspects has been a victim of child abuse or neglect <strong>may</strong> report the known or suspected instance of child abuse or neglect to an agency specified in Section 11165.9. For purposes of this section, “any other person” includes a mandated reporter who acts in the person’s private capacity and not in the person’s professional capacity or within the scope of the person’s employment. {<em>Emphasis added.</em>}</p>
</blockquote>
<p>Thus the person who makes a penitential communication to a clergy member may (but need not) report directly to Law Enforcement, and the clergy member may urge such a person to do so.</p>
<p>Note that 11166 (i) (1) provides that:</p>
<blockquote>
<p>(i) (1) The reporting duties under this section are individual, and no supervisor or administrator may impede or inhibit the reporting duties, and no person making a report shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established provided that they are not inconsistent with this article. An internal policy shall not direct an employee to allow the employee’s supervisor to file or process a mandated report under any circumstances.</p>
</blockquote>
<p>Note that 11166 (i) (3) provides that:</p>
<blockquote>
<p>(i) (3) Reporting the information regarding a case of possible child abuse or neglect to an employer, supervisor, school principal, school counselor, coworker, or other person shall not be a substitute for making a mandated report to an agency specified in Section 11165.9.</p>
</blockquote>
<h2>Specified Scenario</h2>
<p>In a comment on an earlier version of this answer, the original poster of the question (OP) asks:</p>
<blockquote>
<p>So if there was a situation where church member X tells to a religious leader L (no other persons present) that church member Y has abused a child, then the legal responsibility for the leader to inform authorities depends primarily on state law and secondarily on what the religious traditions of that religious org state? Would this be correct?</p>
</blockquote>
<p>Yes, the responsibility of L in that situation depends on both the state law of the state where this occurs, and on the rules and traditions of the the church or other religious organization are.</p>
<p>There are several questionable points in that scenario under California law:</p>
<ol>
<li><p><strong>When X tells L about the abusive actions by Y, is that a &quot;penitential communication&quot; under the traditions of the relevant religious organization?</strong> For instance, in Catholic practice, a confession is about oneself, and any mention of the misdeeds of others is not confidential unless it would reveal the contents of the actual confession.</p>
</li>
<li><p><strong>Does religious law, tradition or practice impose a duty of secrecy on L?</strong>  If not, the exception does not apply and a report is mandated if the other conditions for a report apply. My understanding (not confirmed) is that the Catholic church, for example, has in recent years changed its canon law so that a persistent course of action, showing no indication of repentance nor effort to stop the sinful action where there is a likelihood of future harm to others relives a priest from the duty of secrecy. When there is no religious duty of secrecy, the exception does not apply.</p>
</li>
<li><p><strong>Does the report by X give L &quot;knowledge&quot; or  &quot;reasonable suspicion&quot; of abuse?</strong> If not, no report is mandated.  If there is not at least corroboration through direct observation of the child in question, then the wording of 11166 seems to me to imply that no report is mandated, but I have not found case law confirming or opposing that conclusion. Also, under 11166 (a) (1) suspicion must be &quot;objectively reasonable&quot; to trigger a mandated report. If X is known for making unfounded accusations, X's report might not be grounds for &quot;reasonable suspicion&quot;.</p>
</li>
</ol>
<p>Thus the detailed facts about the situation, and about the rules or traditions of the church or religious organization will matter.</p>
