Child abuse is considered by advocates to be a “hidden epidemic” in our society at large. And Arizona is no exception. We’ve witnessed recently churches and even entire denominations reeling from allegations of abuse cover-ups. One of the top reasons churches end up in court is related to child abuse. The question arises often—what are the obligations of clergy when they learn of allegations or suspect child abuse? Arizona has adopted “required reporting” provisions in Revised Statute section 13-3620(A)-(B)—enumerating those people in specific professions that must report cases of child abuse or neglect. Clergy (as well as Christian Science practitioners) are listed among these mandated reporters.
But how does the mandated reporter statute intersect with the clergy-penitent privilege? This clergy privilege protects certain statements made by church members to a clergyperson. But are those statements considered private and protected if they disclose child abuse? It’s true that under the doctrine of some faiths clergy are required to maintain such confidentiality. Some states permit the maintenance of this confidentiality despite the requirement to report neglect or abuse—and Arizona is among these.
But the drafters of this provision in our law were careful to be clear that the privilege is not absolute. With regard to this specific circumstance, the privilege is interpreted very narrowly. The law states, in section 13-3620(L):
“In any civil or criminal litigation in which a child’s neglect, dependency, physical injury, abuse, child abuse or abandonment is an issue, a member of the clergy, a Christian Science practitioner or a priest shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a member of the clergy, a Christian Science practitioner or a priest in the course of the discipline enjoined by the church to which he belongs. This subsection does not discharge a member of the clergy, a Christian Science practitioner or a priest from the duty to report pursuant to subsection A of this section.”
Which is to say, the clergyperson may not be forced to repeat the words spoken to them. Also, any disclosure to the clergy member must be “in the course of the discipline enjoined by the church to which he belongs.” This means that the church’s theology must prohibit disclosing confidential information and also that the circumstances under which the communication was made must be a “confession” that was intended to be private and for spiritual purposes. But if there is any other evidence—physical, behavioral, and so forth—that abuse or neglect is occurring, the duty to report stands.
We know this area of the law can sometimes be confusing. Provident Law’s church and nonprofit attorneys are here to help answer questions and to aid in establishing and crafting policies governing church and clergy activities. We recognize how essential the missions of religious organizations are for society, and we stand ready to counsel and serve the churches of Arizona. Contact us to learn more.