|J. Thomas Kirkman is an assistant district attorney in the Cape and Islands District Attorney's Office. The opinions expressed herein do not necessarily reflect those of that office.
|Elizabeth R. Thompson is a third year Law Student at Northeastern University School of Law.
"Betrayal hangs like a heavy cloud over the Church today." 1
In a special letter published on Good Friday last year in the Roman Catholic newspaper, The Pilot, Cardinal Bernard F. Law apologized to victims of clergy sexual abuse and urged victims to come "forward for . . . healing and the protection of others."2 The letter came two months after the Boston Globe had accused the Boston Archdiocese of secretly settling sexual abuse claims against 70 priests. During those two months, the Archdiocese turned over to prosecutors the names of 90 priests who had been accused of child sexual abuse.3 The cardinal's letter coincided with a legislative response that had been a decade in the making. On May 3, 2002, Governor Swift signed an emergency act amending section 51A of chapter 119 of the General Laws to require certain religious leaders to report all cases of abuse that come to their attention.4
The amendment requires that religious officials report all cases of child abuse in conformance with the requirements of chapter 119, section 51A of the General Laws when the religious official is acting in an official capacity, with the exception of information gained "in a confession or similarly confidential religious communication in other religious faiths." In addition, the amendment contains a retroactive provision that requires mandated reporters to report previous abuse that religious officials became aware of before the alleged victim was 18 years of age. Failure to comply with this provision may result in a fine of $1,000. The deadline for the retroactive reporting was June 3, 2002. 5
The sweep of the law is broad and includes not only priests, rabbis and ordained or licensed ministers, but also the "leader of any church or religious body" "performing the duties" of such clerics. The statute also includes "any person employed by a church or religious body to supervise, educate, coach, train or counsel a child on a regular basis."6 The amendment furthers the legislative "intent to place greater importance on the protection of children than on the right to be protected against the disclosure of confidential information."7 That legislative intent results in the expansion of the number of mandated reporters.8 At the same time, however, that expansion is limited by the recognition of confidential communications made to professional clergy. While confidentiality of confessional communications involving child abuse remains privileged in the Roman Catholic tradition and similar communications in other religions will be protected, it is not clear what will be considered "similar communications" under the law.9 An analysis of existing law of analogous communications, such as those between psychotherapists and patients provides some clarity.
I. Review of Massachusetts Privileges and
A. Reporting requirements for mandated reporters of child abuse under Mass. Gen. Laws ch. 119, section 51A
Under chapter 119, section 51A of the General Laws, professionals in an official capacity, including physicians, psychologists, psychotherapists, educators and other human services personnel in addition to the recent addition of religious officials, are required to report abuse when there is reasonable cause to believe that a child "under the age of eighteen years of age is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth" within 48 hours of learning of the suspected abuse to the Department of Social Services.10 A mandated reporter under this statute is immune from criminal or civil liability in regards to the information provided in the report as long as the report was required by law.11
The standard of "reasonable cause to believe" is not intended to serve as a limitation on reporting. In the alternative, "reasonable cause to believe" should be applied similarly to the standard that is used by the federal regulations (45 C.F.R. 1340.3), which calls for reporting when there is "known or suspected instances of child abuse or neglect."12
B. Psychotherapist-patient privileged communications and testimonial disability established by Mass. Gen. Laws ch. 233, section 20B
Psychotherapist-patient privilege protects communications made in counseling and is established under chapter 233, section 20B of the General Laws. That provision states in part that:
In any court proceeding and in any proceeding preliminary thereto and in any legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition.13
The privilege granted by this statute does not apply in six circumstances set forth by the statute and summarized below:
(a) The patient presents a threat to himself or others.
(b) The patient was informed that his/her communications would not be confidential for the purposes of a court ordered examination, however, the communications will be admissible only to establish mental or emotional condition but not to establish guilt or innocence.
(c) The patient introduces his/her emotional or mental condition as an element of a claim or a defense.
(d) If the patient is deceased, the mental or emotional condition may be revealed if it is an issue in a claim.
(e) Child custody disputes.
(f) Proceedings of any kind against the psychotherapist.14
While some psychotherapist-patient communications are not privileged under chapter 233, section 20B for reporting purposes, psychotherapist-patient privileges may be invoked for testimonial purposes. "Testimonial privileges are exceptions to the general duty imposed on all people to testify."15 Testimonial privileges are only recognized when the privilege serves the common good, for all privileges impinge on the right of the public to view evidence.16 Furthermore, testimonial privileges are disabilities, and do not require total disqualifications from testifying.17
In order to procure the testimony of privileged communications at trial, the defendant must show that "records privileged by statute are likely to contain relevant evidence."18 The Bishop case suggests that the defendant does not need to show the privileged records actually contain relevant information, but requires that the defendant must "advance, in good faith, at least some factual basis which indicates how the privileged records are likely to be relevant to an issue in the case and that the quest for its contents is not merely a desperate grasping at straws."19 Bishop recognizes the underlying need and importance of privileged communications in stating "revelation of privileged information adversely affects the purposes underlying the need for the confidential relationship and serves as a disincentive to the maintenance of such relationships."20 Nevertheless, the court countered that "in certain circumstances a defendant must have access to privileged records so as not to undermine confidence in the outcome of trial."21 The Bishop standard aptly balances the importance of protecting confidentiality in certain professional relationships in order to allow patients, clients and congregants the ability to freely disclose personal information with the opposing need to obtain the truth through full disclosure in court proceedings.
The psychotherapist-patient privilege is not a testimonial disqualification, but only disables a psychotherapist from testifying. The existence of the psychotherapist-patient privilege alone doesn't disqualify the psychotherapist from testifying, but rather carves out certain circumstances when a psychotherapist can be barred from testifying by the patient.22 Therefore, the patient who wants to exercise their privilege to bar a psychotherapist from testifying must do so at trial, or make an attempt to do so at trial to reserve the issue for appeal.23 It is clear that the privilege established under chapter 233, section 20B is "not an all-covering blanket" but rather establishes a privilege pertaining to "proceedings and is to be exercised by the refusal of the patient to disclose or by the patient's preventing a witness from disclosing the communication with the therapist."24 Exception (b) to chapter 233, section 20B creates a waiver of the testimonial privilege upon the consent of the patient. In addition to the creation of the consensual ability to waive the privilege, the courts have interpreted this exception to the psychotherapist-patient privilege as inversely requiring the psychotherapist to inform the patient beforehand that certain information will not be privileged due to any of the above-mentioned exceptions or the mandated reporting requirement under chapter 119, section 51A.25 If the psychotherapist does not reveal this duty to the patient, all communications will remain privileged against disclosure.26 The required disclosure by a psychotherapist to a patient that certain communications made in confidence will not remain confidential does not necessarily mean that the patient has agreed to relinquish the privilege to prevent a psychotherapist from testifying at trial.27 While the Supreme Judicial Court did not resolve this issue in Berrio, the court did acknowledge the possibility of the existence of two distinct privileges that were not automatically waived together. The court stated "it is surely arguable that the defendant's acquiescence in [Dr. Purcell's] asserted reservation of the right to report his communications to the department and the district attorney in no way amounted to an irrevocable relinquishment of the privilege to prevent Dr. Purcell's testimony at trial."28 The issue has not been further clarified by recent case law.
C. Privileged communications with clergymen under Mass. Gen. Laws ch. 233, section 20A
Privileged communications with clergymen under chapter 233, section 20A of the General Laws grants absolute privilege to all communications made to a religious leader in his/her professional capacity by any person seeking spiritual guidance or comfort. Under this statute, "a priest, rabbi, or ordained or licensed minister of any church or an accredited Christian Science practitioner shall not, without the consent of the person making the confession, be allowed to disclose a confession made to him in his professional character" nor "testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort" or to the advice given.29 It is the trial judge as a matter of law who must decide what communications are protected, with considerable weight given to the clergy's interpretation of the nature of the communication, under chapter 233, section 20A.30 For this reason, it is probable the courts will continue to make a case-by-case determination as to whether communications are privileged or required by law to be reported with reasonable cause to suspect child abuse.
The absolute privilege that existed prior to the amendment to chapter 119, section 51A was based upon the premise that religious confession and guidance was sacrosanct above the need for disclosure. The legislature elevated religious communications above other evidentiary privileges and delineated no exceptions to this privilege.31 The standard of absolute privilege remains intact for confession and other like communications in other religious traditions, under the new law.
Nevertheless, a question arises when a religious official learns of child abuse outside of the confessional or similarly confidential communication. Under the new law, the official will be required to report the information within 48 hours.32 But, does that mean that the official can be compelled to testify? Did the legislature simply abrogate the privilege for purposes of testifying or will the reporting official also be required to testify? Professor Michael Cassidy has examined this issue with respect to every state's reporting act and concluded that in Massachusetts, the law abrogates the privilege for reporting only.33
II. Federal Evidence Approach
The new requirement for clergy to report child abuse may be analyzed in conjunction with an examination of how the clergy-penitent relationship is defined in other jurisdictions. Federal law recognizes the clergy-penitent privilege when communications are made "to a clergyman in his or her spiritual and professional capacity with a reasonable expectation of confidentiality."34 Clergyman is defined as a "priest, minister, rabbi, or other similar functionary of a religious organization."35
In 1974, Congress proposed the inclusion of a rule to the Federal Rules of Evidence to protect statutorily specific privileges including communications with clergy.36 Congress chose not to codify these privileges, however, and instead common law principles control.37 The historical basis for the establishment of a federal common law clergy-communicant privilege is abundant.38 Federal Rule of Evidence 501 defines the contours of the federal common law rule for privileged communications.
The rule states in part that individual privileges including the attorney-client privilege and the clergy-penitent privilege "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience."39 Article V of the Federal Rules of Evidence originally contained 13 specific privileges.40 The proposed rule to protect communications with clergy was expansive, recognizing the need to protect the confession and counseling function of clerics.41 Nevertheless, Congress believed the common law basis for a clergy-penitent privilege was sufficient, and therefore the common law governs at the federal level.42
The common law clergy-penitent privilege was reified in a leading Third Circuit case.43 In the case, the government appealed an order denying a motion to compel the testimony to a federal grand jury of a Lutheran clergyman concerning the statements made in a family counseling session.44 In recognizing a clergy-communicant privilege, the court weighed four conditions for a privilege to exist against the need for disclosure: whether the communication originated in confidence, whether the confidentiality was essential to the communication, whether the relationship should be protected in the opinion of the community and whether the injury of disclosing the communication was greater than the benefit of confidentiality.45 The court noted that whether to mandate the disclosure of harm to innocents was a case-by-case determination, and not a component to the federal common law privilege. The court remanded the case back to the district court to make the determination whether communications were made in an official capacity and whether there was a reasonable expectation of confidentiality.46 This decision illuminates the fact that the federal clergy-penitent privilege is not absolute, but rather a privilege that is balanced against the harm of not disclosing.
The United States Supreme Court first suggested that a clergy-penitent privilege exists in 1875 in the case of Totten v. United States.47 In dicta, the court declared "suits cannot be maintained which would require a disclosure of the confidences of the confessional."48 In 1985, the Supreme Court again recognized the clergy-penitent privilege in dicta in Trammel v. United States.49 The Supreme Court said "the priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are to believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return."50 While dictum is not binding, the sentiment by the Supreme Court influenced the federal courts interpretation of the Federal Rule of Evidence 501 to include the clergy-penitent privilege. The Supreme Court has not addressed this issue since Trammel.
The federal common law privilege is both akin and dissimilar to most state clergy-penitent privileges. While the federal courts recognize a common law clergy privilege, in most states, the privilege is statutory.51 The federal clergy-communicant privilege echoes the Massachusetts practice of giving deference to trial court judges to decide whether a religious leader was acting in an official capacity, and deciding whether there was a reasonable expectation of confidentiality. In addition, looking to the factors the federal courts consider, the federal courts do seem open to the possibility that the privilege is not absolute when harm to innocents is at issue similar to the emerging stance of the states on the issue.
III. Survey of Other States' Laws
A. Mandatory reporting requirements for clergy in other jurisdictions
Every state in the United States and the District of Columbia has a statute that identifies mandatory reporters of child abuse and the circumstances under which they must report. Some states do not require clergy to report child abuse at all. Alabama, Arkansas, Colorado, The District of Columbia, Georgia, Illinois, Iowa, Michigan, Missouri, Vermont, Washington and Wisconsin currently do not list clergy as mandated reporters of child abuse.52
In New York, while there is currently no reporting requirement for clergy, there is pending legislation that would make clergy mandated reporters of child abuse except when the information was gained in a confidential communication while the clergyperson is acting in a professional capacity.53 Other states require clergy to report child abuse and make no exceptions for the clergy-penitent privilege.
In Texas, for example, the mandated child abuse reporting law exists without exception for clergy.54 In 2001, the Court of Appeals of Texas reiterated the statutory reporting requirement for clergy in Bordman v. State.55 The court held that the code requires that "a claim of privilege, other than the attorney-client privilege, may not be interposed in proceedings regarding abuse or neglect of a child."56
New Hampshire, Mississippi, Ohio and West Virginia also currently require clergy to report child abuse even if the information was gained in the confession or a similarly confidential communication.57 Similarly, in Connecticut, the statute identifies clergy as mandated reporters and makes no exception for any privilege.58 But, Connecticut also has a statute protecting communications with clergy.59 Therefore, clergy must interpret the apparent conflict for themselves until the courts set more definitive guidelines to resolve the conflict.
Some state statutes require that clergy report suspected instances of child abuse with the exception that clergy need not report information gained in the confession or a similarly confidential communication. For instance, Arizona's mandatory reporting requirement exempts clergy from reporting communications received in confession or a confidential communication when the religious official "determines that it is reasonable and necessary within the concepts of the religion" but requires disclosure of personal observations the clergy may make.60 California, Idaho, Maine, Minnesota, Montana, Nevada, North Dakota, Oregon, Pennsylvania, South Dakota, Tennessee and Utah all require clergy to report except if the information is otherwise protected under the clergy-communicant privilege in that state.61
In June 2002, Colorado amended the mandatory reporting requirements to include clergy as mandated reporters.62 The Colorado law does not require clergy to report or testify to confidential communications, and also makes it unlawful for a parent to report or testify as to communications reported by a minor child about confidential conversations with clergy.63
Delaware, Kentucky, Maryland, Oklahoma, Indiana and Wyoming require that "all persons," "any persons," or "other persons" with reasonable cause to suspect child abuse report, but carves out an exception that clergy need not report information obtained in the confessional or other similarly confidential communication.64
Nebraska, New Jersey, New Mexico and North Carolina require all persons with reasonable cause to suspect child abuse report it, but do not statutorily exempt clergy from reporting when the communication is confidential.65
In Rhode Island, "any person" who has "reasonable cause to suspect" child abuse is required to report under law.66 However, the clergy-penitent privilege is still being used by the Rhode Island Roman Catholic Archdiocese to fight 38 ongoing lawsuits alleging sex abuse.67 Despite the law requiring clergy to report, Rhode Island courts are preserving the testimonial privilege.
In Alaska, Hawaii, Kansas, South Carolina and Virginia clergy may be required to report through language inserted into mandatory reporting statutes that requires practitioners of the "healing arts" to report suspected abuse.68 It is unclear if and under what circumstances clergy will be required to report under this heading. The Florida statute does not name clergy specifically, but requires "practitioners who rely solely on spiritual means for healing" with "reasonable cause to suspect" child abuse to report. In Florida, the only named privilege that is exempt from the reporting requirement is the attorney-client privilege.69
In the current climate of scandal surrounding priest sexual abuse allegations, more states are considering and adopting mandated reporter requirements for clergy. The highly politicized debate is often resolved by striking a balance between protecting children and retaining privileged status for confidential communications.70
B. Interpretation of the confession in Massachusetts in comparison with other jurisdictions
Religious "confession" does not have a common definition in mandatory reporting statutes and statutes establishing priest-penitent privilege. An analysis of the manner in which other states have defined "confession" will illuminate the problematic application of mandatory reporting statutes to the clergy, and expose possible modes of interpretation Massachusetts will assume in light of the recent addition of the clergy as mandated reporters in the state.
Under chapter 233, section 20A of the General Laws clergy cannot disclose a confession without the consent of the person making the confession. It is unclear whether this section of the statute has any application outside of the Roman Catholic tradition. The case law in Massachusetts does not resolve this issue, however taken in conjunction with case law from other jurisdictions the scope of the privilege protected under this section becomes clearer.
In the Zezima case, the court found that communications under the clergy-penitent privilege are not limited to conversations.71 The court states that the use of the word "conversations" in chapter 233, section 20 to exclude written communications from spousal privilege is an indication that the use of the word "communications" in chapter 233, section 20A for clergy-penitent privilege is intended to include more than spoken conversations.72 Furthermore, the court noted that unprivileged communications can be contemporaneously made with privileged communications, leaving it in the judge's discretion to determine one from another.73
In a case decided around the time of Cardinal Law's Good Friday letter, the Supreme Judicial Court of Massachusetts addressed another aspect of the priest-penitent privilege. In Commonwealth v. Marrero,74 the issue was whether the defendant's statement to a manager of a Christian rehabilitation center was protected under chapter 233, section 20A. The court held that the statute did not protect the communication because the manager was not an ordained or licensed cleric.75 The court recognized that the defendant was seeking religious guidance, and did not rule out expanding the definition of clergy for purposes of the statute in the future. The court decided it was not appropriate to do so in this case, however.76
Many jurisdictions attach the clergy privilege when the cleric is acting in the course of the practices, rules or disciplines as defined by the particular church. In an Indiana case, Mullins v. State, the defendant confessed and apologized to a priest for robbing him.77 The priest testified, and the defendant argued that the conversation was protected under the Indiana clergy-penitent privilege.78 The court held that the "Catholic sacrament of Reconciliation clearly falls within the structure of the statute as a confession made to a clergyman in the course of the discipline enjoined by the clergyman's church" but the apology was not within this structure.79
In other jurisdictions, a common requirement for a privileged communication is that clergy must be acting in the professional capacity as clergy. In another recent Indiana case, a patient expressed a desire to harm his ex-wife to a deacon in the church of Jehovah's Witnesses, and then claimed that the statement was protected under priest-penitent privilege.80 The court held that without specific evidence of a deacon's duties within the church, or evidence of the nature or circumstances of the conversation, the communication was outside of the priest-penitent privilege.81
The Supreme Court of Iowa limned the meaning of a confidential conversation.82 The court held that a confession to a relative who the defendant believed to be a religious authority is not protected under the clergy-penitent privilege. The court delineated three elements for a privileged conversation with a clergyperson: (1) confidentiality (2) entrusted to a person in his or her professional capacity (3) a necessary and proper function of a person's office. In addition, a person may waive the privilege under Iowa law.83
In a Texas case, a church ward clerk was convicted of indecency with a child, and he appealed. One contention on appeal was that his statement to a bishop was protected under Texas's clergy-penitent privilege.84 The court held that the privilege bestowed by the Texas rule only extends to "communications addressed to clergy in his professional capacity as a spiritual advisor, not to every privileged communication made to a clergy."85 The defendant was summoned to a meeting with the bishop and was not seeking consolation, and therefore the conversation did not fall under the statute.86
Another view is that the communication must be penitential in order to be confidential for purposes of clergy-communicant privilege. In California, it was found on appeal that the district court properly found that statements made to an Episcopalian clergyman admitting theft were not privileged because they were not penitential in nature.87
In comparison, some jurisdictions do not require that the communication is penitential in nature to receive the privilege. In Alabama, the court said the fact the parishioner was not penitent during his admissions to a pastor did not eradicate the privilege set forth under Alabama law.88
New York also does not require privileged communications to be of a penitential nature. In a New York case, the defendant sought spiritual guidance from a reverend who subsequently referred him to a second reverend.89 The defendant confessed to the crime of murder to both clergymen. The issue on appeal to the Court of Appeals of New York was whether statements made to the clergymen were privileged under the clergy-penitent privilege statute in New York. The Court of Appeals held that the conversations were privileged, albeit it did not reverse his conviction because they found the admission of the statements to be harmless error.90 The court stated that although the privilege is referred to as the priest-penitent privilege, "the statutory privilege is not limited to communications with a particular class of clerics . . . nor is it confined to 'penitential admissions of a perceived transgression' or avowals made 'under the cloak of the confessional.'"91
Another area where the jurisdictions diverge is whether a third party's presence automatically makes a conversation with clergy unprivileged, or whether there are circumstances when it can be protected. The New York Supreme Court held that a "statement otherwise confidential loses the privilege when it is made in the presence of a third person."92 In State v. Martin, a Washington court said that while in some cases the presence of a third party will act as a waiver of the privilege, if the presence of the third party is necessary for the communication to occur, or the third party is another clergy, it will not.93 In contrast, an Arkansas court held that a confession to a church official was not covered by the clergy-communicant privilege where it contained the substance of conversations with others.94
When the third parties involved are not members of a religious organization, the case law differs. In a Georgia case, the court held that the presence of the confessant's children did not act as a waiver of the privilege.95 The court relied upon the fact that in the case of other testimonial privileges, i.e. the attorney-client privilege, the presence of third parties does not abrogate the privilege.96 On the other hand, the Idaho Supreme Court held that where many people are in proximity to the clergy and the defendant and thus the communication is not made in private, the privilege is waived.97
In sum, the privileged communications protected by statute differ greatly from jurisdiction to jurisdiction. However, common currents run through the states. Many states allow confession to be defined by the practices and rules of the religion itself. Other jurisdictions require the confession be made in the professional capacity as clergy. In some states, the presence of third parties is not necessarily a waiver of the privilege, but in many jurisdictions it seems the presence of third parties is problematic for purposes of establishing privilege.
IV. Solution - Psychotherapist Approach
To assess the reporting requirements that will be applied to communications between religious officials and members of the religious community outside of the Roman Catholic confessional, it is imperative to analogize this relationship to the psychologist or psychotherapist relationship. The role of religious official outside of confession often mimics the role of counselor. By parsing the mandated reporting requirement for psychologists, it will illuminate the probable mode of analysis the court will use when applying the recent amendment to the clergy.
Psychotherapists are required by Massachusetts law to report otherwise privileged communications between psychotherapists and patients under chapter 233, section 20B of the General Laws when the information includes reasonable cause for the psychotherapist to suspect child abuse. It is foreseeable that the previous notion of absolute privilege afforded the clergy will be replaced by the notion for other mandated reporters that the seriousness of child abuse allegations takes priority over the protection of confidential communications in religious communications.
Patients may waive the confidentiality of communications with psychotherapists under chapter 233, section 20B. The Massachusetts courts have held that the right to waive the privilege requires that psychotherapists disclose the duty to report child abuse as mandated reporters prior to conversing with a patient. It would be advisable for religious leaders to inform congregants of the mandatory duty to report suspected child abuse prior to counseling sessions to ensure parishioners are aware that certain information will not be confidential and to protect parishioners from making disclosures with a false sense of security that the information is privileged. However, clergy may be fearful the disclosure of information obtained in confidence conflicts with the religious tenets they follow, or clergy may feel the preservation of the trust between clergy and penitent is more important than disclosing information required by law.
Until the recent amendment of the mandated reporting requirement for religious officials, the Massachusetts legislature attributed a higher degree of importance to the protection of religious communications than it afforded other evidentiary privileges, including the physician-patient relationship, and the psychotherapist-patient relationship.98 In the psychotherapist-patient relationship, the courts recognized that while the confidential nature of the psychotherapist-patient relationship is important, there is a higher priority to protect children.99
The current crisis in the Catholic Church has led the legislature to diminish the absolute confidentiality that religious communications previously held, and lean more toward the idea expressed in the area of psychotherapist-patient privilege that the protection of children takes precedence.
One argument that may arise with the new legislation is that the privilege bestowed upon clergy under chapter 230, section 20A conflicts with the qualification on that privilege made by the amendment. However, when this argument arose in the context of the psychologist-patient relationship, the court held that the privilege and the child abuse exception are "disparate but not discordant" policy objectives, and that there was a higher priority to protect children.100 Similarly, the court may examine the apparent conflict in the religious realm in conjunction with the current events and dictate that the exception is merely the court cataloguing priorities well within its means to do so and not a conflict. A caveat to the increasing prioritization of the protection of children in Massachusetts over clergy communications is that the recent amendment continues to protect the Catholic confession from mandated reporting. This is a signal that while the legislature has determined confidential communications are not inviolable, the legislature is still reluctant to penetrate the sacrament of confession for political reasons, and perhaps for perceived constitutional complications.
Looking at how confidential communications in other states are defined also may be helpful in determining how to advise clergy to conform to the mandated reporting law. If the courts follow the federal guidelines, the privilege will be construed broadly to include the counseling function of clerics. If the courts look to jurisdictions beyond the federal government, the Massachusetts courts must determine whether the parishioner must be penitential in order to reserve the privilege, whether the presence of third parties will vitiate the privilege or whether there are circumstances under which a third party's presence does not automatically abrogate the privilege. Furthermore, it seems clear that the clergy must be acting in an official capacity as a clergyperson in order to fall under the rubric of the statute.
The new amendment to section 51A arose from a context of unspeakable crimes committed against children by people in the highest trust. Had this amendment been part of the original mandatory reporting act of 1973, the later cover-up and injury to hundreds of children would have been avoided.101 The new law may lack clarity to religious leaders in exercising a sacred trust in their private conversations. But, it would seem no more difficult than the exegesis they are called upon to make throughout their professional lives.
1. Michael Paulson, Law's Letter Addresses Abuse Scandal Message in The Pilot Compares Suffering of Church to Jesus, Boston Globe, March 29, 2002, at A25, quoting Cardinal Bernard F. Law.[back]
3. The Investigative Staff of the Boston Globe, Betrayal: The Crisis in the Catholic Church 98 (2002).
The media focus on pedophile priests ignores the extent of the problem sexual misconduct by clergy in many denominations. Surveys of 300 clergy from four U.S. Christian denominations (Assemblies of God, Episcopal Church U.S.A., Presbyterian Church U.S.A., and United Methodist), reported that 38 percent admitted to some form of sexual contact with a member of their congregation, and 12 percent admitted to having sexual intercourse with a congregant. Villiers, Clergy Malpractice Revisited: Liability for Sexual Misconduct in the Counseling Relationship, 74 Denver U.L.Rev. 1, 14, n.87 (1996). An astonishing 76 percent said they knew of another clergy member who had engaged in sexual intercourse with a congregant. Id. A mail survey of 80 pastors, conducted by the Center for Ethics and Social Policy of the Graduate Theological Union in Berkeley, revealed that approximately 10 percent of the respondents admitted to having a sexual relationship with a church member. Id.
Furthermore, according to another Christian magazine survey, one in 10 pastors (12 percent) admitted to having sexual affairs outside their marriages; one in five (18 percent) admitted to some form of sexual contact with someone other than spouses. Id. The majority (69 percent) became involved with congregants, church staff or counselees. Id.
Although the high-profile cases have involved children, the majority of cases reported to the Baptist Union of Western Canada, in Calgary, involve adults. Id. Sexual involvement by female ministers with male counselees is rare; the majority of cases reported in the United Church in Edmonton involved female victims. Id.
A policy report of the Presbyterian Church (U.S.A.) reported that between 10 and 23 percent of clergy nationwide have engaged in sexualized behavior or sexual contact with parishioners, clients or employees within a professional relationship. Id.
According to A.W. Richard Sipe, a Baltimore psychotherapist and former priest who has studied the sexual activities of the clergy since 1960, at any one time 20 percent of Roman Catholic priests are involved in sexual relationships with women. Id.
A study released in 1990 by the Park Ridge Center for the Study of Health, Faith and Ethics, in Chicago, claimed that one in every 10 clergy has had an affair, while one in four has had sexual contact with members of the congregation. Id.
Twelve percent of 300 ministers surveyed by Christianity Today magazine admitted to committing adultery. Id. Of those, 39 percent admitted to such behavior with a church member, 17 percent with a person being counseled, and 13 percent with a staff member. Id.[back]
4. 2002 Mass. Acts 107, "An Act Requiring Certain Religious Officials to Report Abuse of Children."[back]
5. Id. As a result of the deadline, the Department of Social Services was inundated with documents from the archdiocese. Robin Washington & Tom Mashberg, Another Priest Removed as Reporting Deadline Looms, Boston Herald, June 1, 2002, at A6.[back]
6. Mass. Gen. Laws ch. 119, ß 51A. The statute would seem to reach even seminary students engaged in field education programs. Field Education Handbook, Princeton Theological Seminary (1999). Moreover, in many congregations and denominations the line between professional, ordained clergy and lay-led ministry is blurring as traditional structures and roles of those called to ministry are changing. Meade, The Once and Future Church: Reinventing the Congregation for a New Mission Frontier (Alban Institute 2001). Secular authorities are challenged by these changing structures and roles to include all the possible and appropriate reporters when amending laws like the one under discussion. [back]
7. Hope v. Landau, 21 Mass.App.Ct. 240, 243 (1985), vacated by 500 N.E. 2d 809 (1986); See, Kindregan and Inker, Family Law, 3 M.P.S. ß 65.3 (primary purpose of mandatory reporting is to protect children); See also, Besharov, The Legal Aspects of Reporting Known and Suspected Child Abuse and Neglect, 23 Vill. L. Rev., 458 at 493-95 (1977-78) (arguing the purpose of child abuse reporting statutes is to insure the protection of children, rather than the prosecution of parents).[back]
8. Marrus, Please Keep My Secret: Child Abuse Reporting Statutes, Confidentiality, and Juvenile Delinquency, 11 Geo. J. Legal Ethics 509 (Spring 1998). [back]
9. Mass. Gen. Laws ch. 119, ß 51A. [back]
12. Care and Protection of Robert, 408 Mass. 52, 63 (1990) (holding that facts that create a suspicion of child abuse or neglect is sufficient to require a report under Mass. Gen. Laws ch. 119, ß 51A).[back]
13. Mass. Gen. Laws ch. 233, ß 20B.[back]
14. Id. [back]
15. Three Juveniles v. Commonwealth, 390 Mass. 357, 359 (1983).[back]
16. Id. at 359-60.[back]
17. Id. at 361.[back]
18. Commonwealth v. Bishop, 416 Mass. 169, 179-80 (1993).[back]
19. Id. at 180.[back]
20. Id. at 176.[back]
22. Adoption of Carla, 416 Mass. 510, 515 (1993).[back]
24. Commonwealth v. Souther, 31 Mass. App. Ct. 219, 223 (1991).[back]
25. Commonwealth v. Lamb, 303 N.E.2d 122, 126 (1973).[back]
27. Commonwealth v. Berrio, 407 Mass. 37, 43 (1990). [back]
28. Id. at 43.[back]
29. Mass. Gen. Laws ch. 233, ß 20A. For an excellent criticism of the privilege and a call for its partial abolition, see, Cassidy, Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege? 44 Wm. & Mary L. Rev. 1627 (2003).[back]
30. Commonwealth v. Zezima, 365 Mass. 238, 243 (1974).[back]
31. Ryan v. Ryan, 419 Mass. 86, 95-96 (1994) (holding that the legislative purpose to establish religious privilege was nearly a total bar against disclosure of any kind, even after death).[back]
32. Mass. Gen. Laws ch. 119, ß 51A.[back]
33. Cassidy, supra note 29, at 1693-97. The last paragraph of the new law states, "Notwithstanding section 20A of chapter 233 [religious officials] shall report all cases of abuse under this section, but need not report information solely gained in a confession or similarly confidential communication in other religious faiths." That language suggests that the official only report, but keeps the testimonial privilege intact otherwise.[back]
34. In re Grand Jury Investigation, 918 F. 2d 375, 384 (3rd Cir. 1990).[back]
35. Id. at n.13.[back]
36. Id. at 385.[back]
37. Fed. R. Evid. 501 (2003).[back]
38. See Mullen v. United States, 263 F. 2d 275 (D.C. Cir. 1958) (holding a minister's testimony about a conversation with defendant was grounds for overturning verdict against her); In re Verplank, 329 F. Supp. 433, 435 (C.D. Cal. 1971) (holding clergy counseling services rendered by clergy fell under religious duties protected by privilege).[back]
39. Supra note 37. [back]
40. Proposed Fed. R. Evid. 506 (2002).[back]
41. Id. [back]
42. Supra note 37.[back]
43. In re Grand Jury Investigation, 918 F.2d 375 (3rd Cir. 1990). [back]
44. Id. at 384. [back]
45. Id. at 384-385. [back]
46. Id. at 385. [back]
47. Totten v. U.S., 92 U.S. 105 (1875). [back]
48. Id. at 107.[back]
49. 445 U.S. 40, 45 (1980). [back]
50. Id. at 51.[back]
51. Commonwealth v. Rosenberg, 410 Mass. 347, 353 (1991).[back]
52. See e.g., Ala. Code ß 26-14-3; Ark. Code Ann. ß 12-12-507; D.C. Code Ann. ß 4-1321.02; Ga. Code Ann. ß 19-7-5; 325 Ill. Comp. Stat. Ann. 5/4; Iowa Code Ann. ß 232.69; Mich. Comp. Laws. Ann. ß722.623; Mo. Ann. Stat. ßß 210.115; Vt. Stat. Ann. Tit. 33 ß 4913; Wash. Rev. Code Ann. ß 26.44.030; Wis. Stat. Ann. ß 48.981. Louisiana does not require clergy to report, but encourages clergy to report child abuse in the text of the mandated reporter statute. La. Children's Code Ann. Art. 603(13)(b).[back]
53. N.Y. Soc. Serv. Law ß 413; New York Assembly Bill 10569 (2002).[back]
54. Tex. Fam. Code Ann. ß 261.101.[back]
55. 56 S.W.3d 63 (2001). [back]
56. Id. at 68. [back]
57. N.H.Rev. Stat. Ann. ß 169-C:29; Miss. Code Ann. ß 43-21-353(1) (Supp. 1998); Ohio Rev. Code Ann. ß 2151.421(A)(1)(b); W.Va. Code Ann. ß 49-6A-7.[back]
58. Conn. Gen. Stat. Ann. ß 17a-103(a).[back]
59. Conn. Gen. Stat. Ann. ß 52-146b.[back]
60. Ariz. Rev. Stat. Ann. ß 13-3620.[back]
61. Cal. Penal Code ß 11166; Idaho Code ß 16-1619; Me. Rev. Stat. Ann. Tit. 22 ß 4011(A); Minn. Stat. Ann. ß 626.556; Mont. Code Ann. ß 41-3-201; Nev. Rev. Stat. Ann. ß 432B.220; N.D. Cent. Code ß 50-25.1-03; Or. Rev. Stat. Ann. ß 419B.005; 23 Pa. Const. Stat. Ann. ß 6311; S.D. Co. Laws ß 26-8A-3; Tenn. Code Ann. ß 37-1-403; Utah Code Ann. ß 62A-4a-403.[back]
62. An Act Concerning Mandatory Reporting of Child Abuse or Neglect by Clergy Members. c. 295 ß 02-210 (2002) (to be codified as amended at Co. stat. Ann. ß 19-3-304 (West, Westlaw through 2002)).[back]
64. Del. Code Ann. tit. 16 ß 903; Md. Code Ann. Fam. Law ß 5-705; Ky. Rev. Stat. Ann. ß 620.030; Okla. Stat. Ann. tit. 10 ß 7103; Ind. Code ßß31-33-51, 31-33-52; Wyo. Stat. Ann. ß 14-3-205 (Wyoming requires clergy to report, but seems to preserve the testimonial privilege for any later trial).[back]
65. Neb. Rev. Stat. Ann. ß 28-711; N.J. Stat. Ann. ß 9.6-8, 10; N.M. Stat. Ann. ß 32A-4-3; N.C. Gen. Stat. ß 7B-310.[back]
66. R.I. Gen. Laws ßß 40-11-3(a).[back]
67. Jennifer Levitz, Lawmakers May Be Reluctant to Unlock Confessional Doors, The Providence Journal, June 4, 2002, at A1.[back]
68. Alaska Stat. ß 47.17.0206; Haw. Rev. Stat. ß 350-1.1; Kan. Stat. Ann. ß 38-1522; S.C. Code Ann. ß 20-7-510; Va. Code Ann. ß 63.1-24863.[back]
69 Fla. Stat. Ann. ß 39.201. See also, Shawn Bailey, How Secrets Are Kept: Viewing the Current Clergy-Penitent Privilege through a Comparison with the Attorney-Client Privilege, 2002 B.Y.U.L. Rev. 489 (2002).[back]
70 .While the definition and scope of a confidential communication is unclear, it appears that allowing sacramental, or penitential communications as defined by the particular religious organization allows the free exercise of religion without establishing any preference under the First Amendment to the United States Constitution. Conley v. Roman Catholic Archbishop of San Francisco, 85 Cal. App. 4th 1126 (2000); cf. State v. Motherwell, 788 P.2d 1066 (1990). See, Cassidy, supra note 29.[back]
71. Zezima, 365 Mass. at 242.[back]
72. Id. at 241. [back]
73. Id. at n.4.[back]
74. 436 Mass. 488 (2002). [back]
75. Id. at 495. [back]
77. 721 N.E.2d 335, 337 (Ind. App. 1999).[back]
78. Id. at 338. [back]
79. Id. See also People v. Thompson, 133 Cal. App. 3d 419, 184 Cal. Rptr. 72 (4th Dist. 1982) (holding that where there is no expectation of confidentiality and the church counselor is not authorized to take confidential statements the clergy-penitent privilege does not apply); State v. Potter, 197 W. Va. 734 (1996) (holding that for privilege to apply it must be made to clergyperson in professional capacity as clergy in accordance with the criteria for a confidential communication in the particular denomination).[back]
80. In re Commitment of J.B., 766 N.E.2d 795 (2002). [back]
81. Id. at 801.[back]
82. State v. Alspach. 524 N.W.2d 665 (Iowa 1994).[back]
83. Id. at 667. [back]
84. Maldonado v. State, 59 S.W.3d 251 (2001).[back]
85. Id. at 252.[back]
86. Id. [back]
87. People v. Edwards, 203 Cal. App. 3d 1358, 248 Cal.Rptr 53 (1st Dist. 1988).[back]
88. Tankersley v. State, 724 So.2d 557 (Ala. Crim.App 1998).[back]
89. People v. Carmona, 82 N.Y.2d 603 (1993).[back]
90. Id. at 604. [back]
91. Id. at 608, quoting Matter of Keenan v. Gigante, 47 N.Y.2d 160, 166 (1979).[back]
92. People v. Brown, 368 N.Y.S.2d 645, 650 (1974).[back]
93. 975 P.2d 1020, 1027 (1999). [back]
94. Perry v. State, 655 S.W.2d 380 (1983).[back]
95. Alternative Health Care Systems, Inc. v. McCown, 237 Ga. A.pp. 355 (1999).[back]
96. Id. at 697-698.[back]
97. State v. Hedger, 768 P.2d 1331 (1989).[back]
98. Ryan v. Ryan, 419 Mass. 86, 94 (1994).[back]
99. Commonwealth v. Souther, 31 Mass. App. Ct. 219, 224 (1991).[back]
100. Id. at 223.[back]
101. See Smith, Lifting the Veil of Secrecy: Mandatory Child Abuse Reporting Statutes May Encourage the Catholic Church to Report Priests Who Molest Children, 18 Law & Psychol. Rev. 409 (1994).[back]