Topic:
CHILD ABUSE; RELIGIOUS GROUPS; CONFIDENTIALITY OF INFORMATION;
Location:
CHILD ABUSE;
Scope:
Connecticut laws/regulations;

OLR Research Report


The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH




March 15, 1994 94-R-0135

TO:

FROM: Lawrence K. Furbish, Assistant Director

RE: Child Abuse Reporting Requirement For Clergymen

You asked about the current Connecticut statutory requirement that clergymen report all cases of suspected child abuse.

Our statutes list a number of professionals in the human services area, including clergymen, who are required to report suspected child abuse (CGS 17a-101). The law reads in part that any "clergyman . . . who has reasonable cause to suspect or believe that any child [has been abused or neglected] shall report or cause a report to be made." The report, first an oral report to be followed by a written report, must be made to the Department of Children and Families (DCF) or the state or local police. Failure to make such a report is punishable by a fine of up to $500. Anyone making a report in good faith is immune from any civil or criminal liability that might arise, including any judicial proceeding that develops pursuant to the report (CGS 17a-101(b) and (h)). We have enclosed a copy of OLR report 92-R-1028, which provides a more complete description of the child abuse reporting and investigating law.

Connecticut statutes also make communications made to a clergyman privileged in certain circumstances (CGS 52-146). This statute provides that any clergyman, priest, minister, rabbi, or accredited practitioner of a religious domination who is settled in the work of ministry "shall not disclose confidential communications made to him in his professional capacity in any civil or criminal case or proceedings preliminary thereto, or in any legislative or administrative proceeding, unless the person making the confidential communication waives such privilege."

There may or may not be a conflict between the confidentiality and reporting statutes, depending on the interpretation of the phrase "proceedings preliminary thereto." If that phrase covers the child abuse "report" that must be made to DCF or the police, then a direct conflict exists. If the phrase only refers to formal judicial proceedings taking place after commencement of a case, such as arraignments or depositions, then no conflict between the two statutes exists and clergymen must report suspected abuse to the police (or DCF), but cannot testify about it in court. There is, however, a conflict between the reporting requirement and the general philosophical concept of confidentiality for statements made to clergymen.

Every state has a child abuse statute and all of them include a reporting requirement specifying those individuals, classes of professionals, or institutions who must or may report. Approximately 17 states have what are termed universal reporting requirements which use language requiring reports from "any person, including but not limited to" usually followed by a list of specific categories of people. These general requirements would apply to clergymen. In addition, at least 5 states (Connecticut, Mississippi, Nevada, New Hampshire, and Oregon) specifically list clergymen among their mandated reporters. Nevada's law includes a provision that members of the clergy are not required to report if the information is obtained in a confidential situation.

In the mid 1980's a case arose in Florida where a Nazarene minister was jailed for refusing to reveal the contents of conversations he had with one of his parishioners who was under investigation for the suspected sexual abuse of his six-year-old daughter. The minister had encouraged his parishioner to turn himself in to the police and later, when prosecutors attempted to question the minister, he refused to answer any questions citing Florida's statutory privilege protecting confidential communications between members of the clergy and their communicants. The court ruled that the Florida law abrogated all privileges except the attorney-client one in cases involving child abuse or neglect. Apparently, the case gave rise to interest on the part of the legal community and a number of law journal articles were written on the issue of the conflict, or whether or not a conflict exists, between abuse reporting laws and the priest-penitent privilege. In general, these articles appear not to have reached any firm conclusions about the conflict other than to observe that child abuse is a terrible crime, disclosure requirements impose a burden on the free exercise of religion, and legislatures should undertake to clarify the application of the reporting laws on the clergy either exempting them altogether or limiting the laws so that fundamental religious rights are not threatened. We have obtained articles from the Columbia Journal of Law and Social Problems (1987), Minnesota Law Review (February, 1987), Indiana Law Journal (Spring, 1987), Tulsa Law Journal (Winter, 1986), and The John Marshall Law Review (Summer, 1986) and will share any or all of them with you if you are interested.

Legislation has been raised by the Judiciary Committee this year to amend our child abuse reporting statute in a way that would affect clergymen. HB 5738 adds the phrase "unless otherwise privileged" to the beginning of the mandatory abuse reporting law. The bill's statement of purpose is to "clarify that confidential communications to clergymen are privileged," but the new language would appear to apply to any profession where a privilege exists, which arguably could include physicians, psychologists, substance abuse counselors, certified marital and family therapists, sexual assault or battered women's counselors, and perhaps even other mental health professionals. The bill appears to attempt a balance between concern over child abuse and recognition of the priest-penitent privilege. The bill would still require clergymen to report suspected abuse if, for example, their knowledge came from personal observation of bruises. The intent seems to be to not require a report if the knowledge is the result of a confidential conversation with a confessor-parishioner. The bill does not define a privileged communication. If it is interpreted to mean what is already in statute, for clergyman, the ambiguity remains as to whether or not a child abuse report is a "preliminary" proceeding. In the case of some other professionals for whom a general statutory privilege exists, child abuse situations are exempt (see below). This means the bill would apparently not affect these professions because no privilege situation exists.

It might be worth considering the addition of language to the bill to either require or allow a report if the clergyman has reason to believe that a life threatening danger exists for the child due to the abuse. Existing statutes creating confidentiality for communications made to certain professionals such as psychologists or other therapists contain either general or specific exemptions. For example, the consent of a patient of a marital or family therapists is not required for disclosure when the therapist believes in good faith that a clear and present danger exist to the health or safety of any individual (CGS 52-146p(c)(2). The statutes creating a privilege for communications made to a psychologist make a specific exemption if child abuse is known or in good faith suspected, thus psychologists must disclose suspected child abuse even if they learn about it in a confidential communication (CGS 52-146c(c)(4).

There appears to be a grammatical problem with the bill as written. The new language is a clause which, by virtue of its position in the sentence, appears to modify the list of mandated reporters whereas it should refer to the nature of the communication which may have been received by some of these reporters. The term "privilege" should refer to what they know or, more accurately, how they came to know it. A better way to accomplish the same end might be to delete the new language in the bill and in line 64 insert a new sentence to the effect that the requirement to report shall not apply if the information concerning abuse or neglect is obtained through a privileged communication. A decision should be made about whether to define what constitutes a privileged communication, to cite those established by statute (CGS 52-146b through 146q), or to leave the term unspecified and thus subject to any common law of privileged communication that may exist. We have not had the time to examine what, if any, common law exists in Connecticut establishing privileged communication, and we have already pointed out some problems with citing existing statutes. Finally, it should be decided whether the exemption is to apply only to clergymen or to all individuals who can have a privileged communication.

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