Maryland is one of approximately 18 states that require any person “who has reason to believe that a child has been subjected to abuse or neglect” to report the incident to the proper governmental authorities. This obligates all of us to report suspected child abuse or neglect. This is in contrast to other states, which only require certain designated professionals (such as teachers, physicians, nurses, therapists, childcare providers, and law enforcement) to report.
The Maryland reporting statute divides everyone into two categories: (a) mandated reporters, which includes health care practitioners, educators, human service workers, and police, and (b) everyone else. Not surprisingly, those falling into the first category are held to a more stringent reporting standard. These mandated reporters must make a verbal report as soon as possible, followed by a written report filed within 48 hours to the local Department of Social Services (DSS) or local law enforcement. The rest of us are only required to make oral or telephonic reports (Annotated Code of Maryland, Family Law Article, Sections 7-704 and 7-705).
Clergy and other church staff generally fall within the “everyone else” category, meaning they are required to make a verbal report of a suspected incident as soon as possible. Keep in mind, however, that teachers in church schools or professional counselors are in the mandated reporter category.
It does not matter how long ago the incident occurred. If someone learns that an adult had been abused as a child years earlier, the incident must still be reported to the authorities.
But what if a pastor learns of past abuse during a counseling session? We take for granted that matters discussed during pastoral counseling will remain absolutely confidential. This implied covenant of confidentiality is the cornerstone of effective counseling. Without it, the sacred relationship between parishioner and pastor would be eroded. Pastoral-parishioner confidentiality is generally recognized by both religious tradition and by secular laws. In most states, matters disclosed during pastoral counseling are protected by so-called “pastoral privilege,” meaning that the pastor cannot be compelled to testify on these matters in court.
The reporting statute carves out a narrow exception under which clergy are not required to report abuse or neglect if it was disclosed during pastoral counseling. This exception reads as follows:
“A minister of the gospel, clergyman or priest of an established church of any denomination is not required to provide notice [of suspected abuse or neglect] … if the notice would disclose matters in relation to any [pastoral-privileged] communication described in Section 9-111 of the Court Article and:
(i) the communication was made to the minister, clergyman or priest in a professional character in the course of discipline enjoined by the church to which the minister, clergyman or priest belongs, and
(ii) the minister, clergyman, or priest is bound to maintain the confidentiality of that communication under canon law, church doctrine, or practice” (Annotated Code of Maryland, Family Law Article, Section 7-705(a)(3)).
In order to qualify for this narrow exemption for pastoral communications, the following requirements must be met:
- First, the communication must be covered by Maryland’s pastoral privilege law. This provides that “a minister of the gospel, clergyman or priest of an established church of any denomination may not be compelled to testify on any matter in relation to any confessional or communication made to him in confidence by a person seeking his spiritual advice or consolation” (Section 9-111 of the Courts & Judicial Article of the Annotated Code of Maryland). Sometimes it is obvious when communication was made in the course of seeking “spiritual advice or consolation,” such as statements during a one-on-one counseling session in the pastor’s office or confessions made to a priest. Other encounters may be subject to more than one interpretation (e.g., a parishioner encounters a minister in the church hallway and, while discussing the prior day’s televised Olympic boxing event, mentions that he hit his wife). The pastoral privilege only applies to communications, not to a pastor’s observations of a fact or event. Of course, the communication must have been made in confidence. A disclosure made to the pastor in the presence of third parties would also not qualify. For example, a confession made during a group counseling session or in spiritual testimony before the congregation would not be protected.
- Second, the communication must have been made to the pastor in a professional character in the course of discipline enjoined by the church. A communication is not privileged just because one of the parties to the conversation happened to be a minister. The pastor had to be wearing his “pastor hat” in order for the privilege to apply. Also, the exemption only applies to communications with clergy. Disclosures to other church employees or to lay volunteers (such as Sunday school teachers, deacons, and lay counselors) would not be protected by the privilege.
- Third, the pastor must be bound to maintain confidentiality under canon law, church doctrine, or practice. The exemption would not apply if there is no canon law, church doctrine, or practice that requires a pastor to maintain the confidentiality of pastor-parishioner communications. To my knowledge, Southern Baptists do not have any formal written “canon law” or “church doctrine” specifically concerning pastoral privilege. There may, however, be a uniform practice of Southern Baptist clergy treating pastor-parishioner communications as sacred and confidential. Further, if canon law, church doctrine, or practice actually requires that pastors report child abuse or neglect even if discovered during the course of pastoral counseling, the reporting exemption would not apply, and pastors would be required to report such incidence. Perhaps churches should consider adopting such a written policy if the desire is to ensure reporting of abuse in all situations.
All of this begs the question of whether or not a pastor should be exempt from having to disclose abuse or neglect. If a pastor learns of an abuse incident during a counseling session, he may wish to report the incident in order to protect the victim as well as other current or potential victims. There certainly can be no higher priority in church life than ensuring the safety and wellbeing of children. The situation can be especially urgent where the abuse or neglect is ongoing or if there may be multiple victims. Of course, a pastor should always report incidents involving a perpetrator who is a member of the church community and has regular interactions with children, such as a member of church staff, a Sunday school teacher, or a camp counselor.
I should note here that the individual being counseled may be a victim, a family member, friend or caretaker of the victim, or even the perpetrator. The pastor may struggle with the difficult decision of whether or not to betray confidences where the expectation is that nothing said during counseling can ever be repeated. The pastor may also not want to open old wounds. This decision may be particularly difficult where the victim was abused as a minor is now an adult.
I suspect that in the vast majority of cases, pastors will feel compelled to report child abuse, even if not legally required to do so. But is the pastor permitted to report an incident which he learned of during pastoral counseling without the consent of the parishioner, and, if so, is there any risk of liability to the individual whose confidence he may have betrayed? Put another way, who has the right to assert the pastoral privilege — the pastor or the parishioner? Unfortunately, Maryland courts have not provided much guidance on this issue. In the absence of judicial precedent, we must analyze the language of the reporting and pastoral privilege statutes. From my reading of the law, the decision whether or not to report rests solely with the pastor; the parishioner has no right to prevent the pastor from reporting an abuse or neglect incident.
First, under the Maryland privilege law, a clergyman cannot be compelled to testify about a matter covered by the pastoral privilege. This language would suggest that it is the pastor, not the parishioner, who holds the privilege. At least one distinguished legal commentator agrees. Judge Joseph Murphy, in his treatise on evidence, has opined that the “[The pastoral] privilege is held by the recipient, who ‘may not be compelled to testify’ to the communication no matter how desperately the source wants him or her to reveal the information communicated” (Judge Joseph F. Murphy, Jr., Maryland Evidence Handbook, Section 9-101(A)).
Secondly, under the reporting statute, a pastor is not required to provide notice of suspected abuse or neglect where pastoral privilege is involved. Again, this language implies that it is the pastor’s decision (not the parishioner’s) whether or not to report the incident is learned in the course of pastoral counseling. There is no suggestion here that the parishioner must consent to the disclosure.
I cannot speak to whether the canon law or policies of a particular church or denomination could prevent a pastor from reporting an abuse incident which the pastor learned of from pastoral counseling. I believe, however, that such a claim would likely fail as a violation of public policy. Under Maryland, all suspected child abuse and neglect must be reported unless a specific exemption applies. If such an exemption does apply in the context of communications subject to pastoral privilege, it is the pastor who decides whether to invoke or waive that privilege.
In other states, pastoral privilege may belong to the parishioner rather than the pastor. This article only analyzes Maryland law. Readers who are in Delaware or other jurisdictions should consult with counsel in that jurisdiction for advice as to whether a different rule applies.
Jeff Agnor is a principal with the law firm of Davis, Agnor, Rapaport & Skalny, LLC, in Columbia. He can be reached at 443-283-0681 or firstname.lastname@example.org.
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