Reporting Abuse: When the Laws Aren't Enough

Deirdre Davidson
Legal Times
04-24-2002

In the wake of the Roman Catholic Church's sex abuse scandal, many states have rushed to pass laws that would force priests to report child abuse to local government officials.

But these laws are no panacea. Clergy are often exempted from reporting abuse if they learn of the situation in a private, spiritual discussion, such as a confession. And the clergy reporting laws that are in place aren't always scrupulously followed or enforced.

"How effective would speed limits be if we didn't have traffic cops?" says Timothy Kosnoff, a Washington state lawyer who has handled sex abuse cases against religious institutions. "If we don't have enforcement, the laws are not going to have much effect."

Every state has a child abuse reporting law. Some provide long lists of individuals who must report abuse, such as mental health professionals, funeral directors, commercial film processors and Christian Science practitioners. Eighteen states require any individual who knows or has "reasonable cause to believe" abuse is occurring to report it to the authorities. The National Clearinghouse on Child Abuse and Neglect lists 11 states -- including Connecticut, California and Arizona, where priests have been accused of molesting boys -- that require the clergy to report.

Many of the states that don't require clergy disclosure are pushing to change that. Legislators in Massachusetts, New York, Colorado, Vermont and Wisconsin, among others, are either already voting on bills dealing with sex abuse reporting and the clergy or drafting them.

"I feel that as a Catholic and as a legislator I have a duty to see that somewhere [the church] is going to have to intersect with the criminal justice system," says Colorado state Sen. Joan Fitz-Gerald. "This abuse is a crime. I don't want to see us dealing with some people under the law differently than others."

While legislators are very vocal about the need to change the law, the normally vocal church has remained quiet.

Normally, the Catholic Church is a formidable lobbying force and frequently out front on issues like welfare reform and the death penalty. In years past, politicians say the Catholic Church, among other religious groups, was not a big supporter of mandatory reporting for clergy members.

"I think that the recent discussion of this issue, and the level and the intensity of the situation, has made the Catholic Church very vulnerable on this issue, and they know it," says Wisconsin state Sen. Alberta Darling.

And church lobbyists appear cognizant of their difficult position.

"I think if we are seen as overly defensive, that is not going to be seen as a constructive response," says John Huebscher, executive director of the Wisconsin Catholic Conference, the public policy arm of the Wisconsin Catholic churches.

In many cases, the state Catholic Conferences are not lobbying against the legislation, but aren't enthusiastically endorsing it either.

"We don't oppose the concept of mandatory reporting," says Dennis Poust, associate director of communications for the New York State Catholic Conference. "In terms of weighing in on the bill, we have not done that. We think the legislature should act in the best interests of the children. We caution them not to rush into legislation that could have unintended consequences."

The one area the church will not compromise on is privilege for the confessional. Church lobbyists say they would never agree to a bill that required priests to disclose information revealed in confession. Catholic Church law bans priests from revealing that to anyone. State law and the courts have in general established a strong privilege protection for Catholic confessions and other types of private spiritual conversations in other religions.

The issue of the confessional divides even advocates of reporting. Some feel there should be no protection for any type of conversation for priests, while others think reporting laws should not require clergy members to reveal confessions.

So far, the church has had little to worry about. Many of the legislators who have written reporting bills are themselves Catholics who have no desire to legislate the confessional. Others say there is no push to require priests to reveal confessional-style conversations.

"It does not appear votes would be there to eliminate the confidentiality of the confessional," says Angus McQuilken, chief of staff for Massachusetts state Sen. Cheryl Jacques, co-sponsor of a reporting bill.

McQuilken says a reporting law for clergy would be beneficial: Last year, Massachusetts authorities received 80,000 reports of suspected abuse from individuals covered by the mandatory reporting laws.

"I think it's a good idea to make clergy report," says Father Gary Hayes, acting president of The LinkUp, a group for survivors of priest abuse. Hayes is a Catholic priest who says he was abused by priests as a boy. "It helps cut down on churches doing their own investigation and being satisfied with that. It cuts down on their ability to keep these things covered up."

But the zeal for pursuing nonreporting priests has been very weak.

"The prosecuting attorneys have treated that issue very gingerly, and they generally don't push it to that point," says Paul Rothstein, a Georgetown University law professor. "It's not popular [to prosecute clergy]."

The statute of limitations for a reporting violation is usually very short, and the penalties are limited. Some states have no penalty at all; others have a $500 or $1,000 fine. Some states call for jail time.

"It doesn't work at all -- the clergy doesn't report," says William Walker, a lawyer in Arizona who has worked on a number of alleged priest pedophilia cases. "They have just ignored it. No one has been prosecuted."

There are very few instances involving charges against a clergy member who failed to disclose abuse. In Connecticut, police arrested a pastor because he waited six months to disclose an instance of sex abuse. A judge dropped the charges because the pastor, despite waiting, had come forward.

One of the few trial cases to involve religious personnel and reporting requirements was in Washington state, which does not require clergy to disclose.

In 1987, three religious counselors for a Seattle-area evangelical church were found guilty of failing to report suspected child abuse. All three were told of separate incidents of child abuse and sexual abuse of a minor by different church members. Washington state classified the men as "social workers" under the state's mandatory reporting laws and pursued them for failing to tell the authorities about the abuse.

The case went to the Washington Supreme Court, which upheld two of the convictions. The court overturned the guilty verdict for the third man, who, unlike the others, had been an ordained minister for his entire period of time counseling at the church. The court ruled that clergy members offering religious counseling were not compelled to report, since the state legislature had earlier taken the word clergy out of the list of individuals required by statute to report abuse.

There is some sense that the pedophilia scandal will encourage churches to cooperate with reporting laws and push prosecutors to go after violators.

Prosecutors across the country have been asking the church to turn over records on priests and sex abuse. In Arizona and Connecticut, district attorneys recently told the press they may investigate whether reporting laws were violated.

"I think what the states have to learn is that we do need more reporting statutes, but what we also really need is for law enforcement to do more monitoring of these churches," says Walker, the Arizona plaintiffs' lawyer. "If the bishop and the administrative priests are prosecuted and go to jail, it will scare the heck out of them and will get them to change."