The Next Faithful Step
A Pastor's Reflection
There are few issues the pastor may potentially face that are as difficult as mandatory reporting. It comes with all sorts of competing allegiances (both theologically and pastorally), nuances, and difficulties. And if it is difficult at just the theoretical level (which it is), how much more so when one has to deal with it in reality. I am fortunate never (yet) to have been faced with it. I can only imagine that having to struggle with mandatory reporting in actuality would be, for a variety of reasons, the stuff on nightmares.
The mandatory rep orter is one who is required by state law to report to the authorities any real or suspected forms of abuse. The California Penal Code (Section 11166) puts it like this:
a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her 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 California Penal Code goes on to list no less than 38 types of individuals who, because of their position in society, are subject to mandatory reporting laws. These range from teachers and social workers to firefighters and county public health employees to animal control agents and film processors. Clearly the list is wide-ranging and, at least for California, clergy are also on the list.
Laws vary from state to state as to whether or not clergy are considered mandatory reporters. This chart from the childwelfare.gov website is a quick state by state reference:
|Privilege granted but limited to pastoral communications
|Privilege denied in cases of suspected child abuse or neglect
|Privilege not addressed in the reporting laws
|Clergy are mandated reporters
|Alabama, Arizona, Arkansas, California, Colorado, Illinois, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Vermont, Wisconsin
|New Hampshire, West Virginia
|Clergy not mandated reporters but may fit "any person" designation
|Delaware, Florida, Idaho, Kentucky, Maryland, Utah, Wyoming
|North Carolina, Oklahoma, Rhode Island, Texas
|Indiana, Nebraska, New Jersey, Tennessee, Puerto Rico
|Neither clergy nor "any person" are mandated reporters
|Alaska, American Samoa, District of Columbia, Georgia, Guam, Hawaii, Iowa, Kansas, New York, Northern Mariana Islands, South Dakota, Virgin Islands
As can be seen from this chart, the issue is complicated even at the state level. There are clear interpretive issues raised with certain states (are clergy included in the “any person” designation?). And even when the code is clear, the question of pastoral privilege breaks down to three possibilities: privilege (in cases of pastoral communication—as in the confessional or comparable types of communication in the various traditions), privilege except in case of child abuse, and privilege not addressed by the law. Before we even get to particular pastoral and theological issues, we can already see that the issue is a maze.
Because of this, what is presented here can in not way act as exhaustive legal advice. Any pastor who finds him or herself in a situation where abuse is evident or suspect has to consult the law of his or her particular state in order to know how to proceed. The practical details here are completely in the hands of the civil authorities. What is presented here, however, is a closer look at the issue of mandatory reporting from a pastoral and theological point of view. And if we might think that the issue is a maze just at the legal level, it is probably more so at the pastoral/theological. At least at the legal level there is a “right” answer that can be uncovered if you look hard enough.
The fact that even the state at times allows for the law to be set aside in the case of pastoral privilege demonstrates that the issue is pastorally complicated. Our congregation members have a reasonable expectation of privacy in conversations with their pastors. And it is not hard to see why. Imagine a world in which any given church member knows that any issue he brings up in conversation with the pastor could become public knowledge. Of course the pastor would quickly become the least informed person in the community. And given the fact that the pastor is often more privy to and aware of delicate and intimate details of people’s lives (precisely because of the expectation of privacy), we can imagine it becoming the case that the vast majority of people would then share the more intimate difficulties of their lives with no one, opting instead to go it alone. This rarely works well.
This may seem particularly theoretical, but think of the very real potential consequences of the breakdown of pastor/parishioner privilege when it comes to the issue of mandatory reporting. People are often more likely first to go to a pastor than the police. And if the safety of going to the pastor is taken out of the equation, how many cases of abuse would never come to light at all, leaving perhaps countless victims without any hope of help? The state seems to realize this. We should be at least as wise as the state.
But of course, this is not the only side to the issue. Yes, it is necessary for people to have confidence in the private nature of their conversations with their pastors. But notice from the chart how many state exempt pastors from mandatory reporting in the case of pastorally privileged conversations. We’ve seen the wisdom in this—but it is not an unambiguous wisdom. What of the victim whose abuser is protected because of privilege? Doesn’t the pastor have just as much (or more?) responsibility to the abused? It looks as if in these states reporting will not be mandatory in cases of privileged conversations. But the pastor is now put in the position of needing to try to discern what will be the best route to take. And we have seen that even the state sees that it may at times be more helpful and effective for the situation for privacy to be maintained. What to do?
We do have to note, though, that the issue of privilege is a special case. Reality might be that the pastor will learn of or come to suspect abuse most often outside of privileged conversations. And it is here that the pastor has some relief. In these cases the state comes to the rescue of the Church (could the earliest Christians ever had imagined it?!). If the state has named the pastor a mandatory reporter, the pastor’s hands are tied.
This is a theological issue—and an ancient one at that. The Church has, throughout its history, had to deal with its relation to the state. Of course, this line between Church and state has been blurred throughout a large portion of Church history beginning with Christianization of the Roman Empire beginning in the first part of the fourth century. But we live in a time and place where, once again (and to much less dangerous effect than for the Church of the first three centuries), the Church and the state are distinct entities. How is the Church to behave in this situation?
This is one of those situations where both biblical scholars and Church history are a help. Many scholars believe that the Gospel of Luke and the Book of Acts were written in large part in response to this very issue. These scholars look at the way Luke presents Christianity and the early Church in these works and see them as a sort of apology for the non-threat of the Church to the state. In other words, Luke consciously presents the Church as a community of good citizens who (contrary to what many believed at the time) in no way presented a challenge to the order of the state: Christians are good citizens. And we see this same defense work itself out in the ensuing centuries as the Church came into regular conflict with the state and was often seen as a dangerous alternative community undermining social order and values. Many of the apologists of the first centuries of the Church deal with this issue head-on as they also attempt to present the Church as a community of good citizens. The Christian philosopher Athenagoras, in his second century writing A Plea for the Christians, writes along these exact lines to Emperor Marcus Aurelius
But if these charges are true, spare no class: proceed at once against our crimes; destroy us root and branch, with our wives and children, if any Christian is found to live like the brutes.
This early Christian was so convinced of the good citizenry of the Church that demands that the emperor look into the social and civil life of Church. So confident is he that the Church will be seen as a responsible social organization that he reminds the emperor of his responsibility to destroy it if he finds it to be otherwise.
What does this have to say about the Church and mandatory reporting? Of course the early Church balked at particular laws, such as when making sacrificial offerings to the emperor became a matter of general legal obligation. The Church did not blindly follow the whims of the state in this case where the law was clearly contrary to the Scriptures. And many portions of the Church in twentieth century America challenged the laws of the state when those laws were contrary to the Gospel. But this is clearly not the case when it comes to the issue of mandatory reporting. Should not the Church continue the tradition of presenting itself as excellent citizen here—even when the act of reporting may be particularly pastorally difficult?
The exhaustiveness of the state law concerning mandatory reporters (from teachers and social workers to firefighters and county public health employees to animal control agents and film processors) is a demonstration of the state’s commitment to protecting the vulnerable. I can only imagine the nightmare of being in a situation where I had to respond to the mandatory reporting law. But when it comes to our responsibility to come to the aid of the vulnerable and abused, can we afford to be outdone in our commitment to them by the state?
Research. Know the law. Understand privilege. Struggle to act wisely and with pastoral integrity where the law gives room. Outdo the state that has done such a painstakingly thorough job in its attempt to protect those at risk.