Privileged Communication and Abuse Reporting: From the Navy to the Local Church
By Commander Charles P. McGathy,Chaplain U.S. Navy (Retired)
I was a Navy chaplain for 22 years. In order to become a chaplain I had to receive an endorsement from a bona fide faith group. There are many faith groups recognized by the Department of Defense and represented in the military chaplaincies. During my career I was endorsed by two of these: first I was endorsed by the Home Mission Board of the Southern Baptist Convention and then, when it became possible, I was endorsed by the Cooperative Baptist Fellowship.
When I entered the Navy in 1984 I encountered clergy from a number of different backgrounds including those from denominations that have a hierarchical structure, such as Lutherans and Roman Catholics. These chaplains did not receive their ordination from a local assembly of believers, but from their Church. They were assigned or appointed in consultation with a bishop to the flock they were to shepherd. They needed to go through their respective bishops for assignment including their entry into the military. I learned from numerous conversations that many of them thought that the Free Church tradition of local churches extending a “call” for a pastor rather confusing and lacking security (and of course they were correct). Additionally, they did not look primarily to the local body of believers as a governing authority. A church council provided support and advice, but the larger Church usually had final say in decisions.
My Baptist prejudices aside, I will openly admit that their systems of doing church worked pretty well for them. They thought the Baptist way of doing church rather messy. My Lutheran and Catholic clergy friends have not been tempted to adopt the whims and uncertainties of congregational polity—at least I am not aware of it.
Now while I will agree that there are indeed strengths and weaknesses inherit in any system, I still treasure my heritage as a Baptist. I would hate to give up the Baptist principles that make us unique as a people even if that creates a potential for ecclesiastical chaos. Nevertheless, it is necessary to examine how we relate to civic authorities from time to time in order to help them understand who we are. One of those areas needs to be in explaining what we mean by privileged communication.
Clergy from churches of hierarchical structure are guided by church law that sets out and defines what may and may not be done in a religious organization. In the Roman Catholic Church, for example, church law is established in the Vatican in Rome. It is the same for every Roman Catholic Church everywhere. Roman Catholic Church law establishes the absolute confidentiality of the confessional. The principle behind this law assures that people can go to their priest in confession of sin with the absolute confidence that it will go no further. Because they can confide in a trusted clergy they can move toward reconciliation and repentance. Therefore even a crime confessed in confidence to a priest is kept privileged.
The principle of separation of church and state allows for this practice to continue in this country, though there are tensions especially about confessed crimes of abuse (child, spousal, and elderly). Strict laws have been passed requiring counseling professionals who must maintain confidentiality to make exceptions if they become aware of abuse, especially child abuse.
Many lawmakers feel that clergy should be included in this law. The laws of many states are not specific on this point, opening up possibilities for lawsuits against pastors and churches who do not report abuse because they are holding to a high standard of privileged communication.
When I retired from the Navy I expected that I could continue to practice counseling in a manner that was consistent with my convictions and ministerial code of ethics. The difference however, is a matter of governing authority. Whereas Navy and Department of Defense regulations specifically protected privileged clergy/penitent communication, as a civilian pastor there is less specific protection for me and my counselees. In fact after looking at the laws concerning abuse reporting from several states I was amazed and a bit concerned. The wording of statutes often did not specifically protect penitent communications in cases of suspected abuse.
Thomas F. Taylor in his book Seven Deadly Lawsuits: How Ministers Can Avoid Litigation and Regulation warns: “States differ on the extent to which a given state’s child abuse reporting laws apply to ministers.” In other words in those states it could mean that a pastor while not required to testify against a counselee may be required to report the same person for abuse following a counseling session. Thomas asks the question, “Must ministers report child abuse in every state?” In answer he summarizes that there are four kinds of abuse (child and in some cases elderly) reporting statutes which “in some way require ministers to report such abuse.”
- Some states require that any person—including clergy—who learns of suspected child abuse must report.
- Some states statutes specify clergy must report.
- Some state statutes imply that clergy must report suspected child abuse.
- Some state child-abuse reporting statues exclude clergy from the list of personnel who must report.
This raises the question then, how can free and open communication between counselee and clergy be preserved? How can an individual struggling with the sin of abuse discuss incidents that can lead to repentance and seeking competent help for the abused and for the abuser? In fact, it is possible under the provisions of the law in many states for an ordained clergy who learns of child abuse and does not report it to later face charges. There are three typical defenses when this occurs.
The first defense is based upon the fact that the law in that particular state did not require reporting of abuse because of the definition of the abusing party. This is actually a glitch in the law, a loop hole if you will. For example some states define child abuse as a wrongful act done against a child “by as parent or guardian.” Consequently, if the abuse is done by someone else, say a step-brother or youth-group leader then the minister is not compelled to report. I find this defense totally insufficient. If the only reason not to report is because one can technically get away with it, then the clergy in question have no business shepherding God’s children.
A second possible defense a minister might use for not reporting abuse could be that clergy/penitent communication is specially protected in the state where the parties reside. That legal exception for clergy does not exist in every state. In North Carolina, where I live, the law reads, “Every person or institution with cause to suspect that a child is abused, neglected, or dependent, or that a child has died as a result of maltreatment, must report that child’s situation. . . .” Thus there is not a statute in my state specifically exempting clergy when it comes to child abuse. Other states have similar laws leaving open the question of reporting requirements for clergy.
The last and I think best defense is the First Amendment to the Constitution of the United States. Separation of church and state implications prevent the state from interfering with the free exercise of religion. This defense, however, will not hold unless it can be shown that the religious requirements and description of practices of the church provide for privileged communication. This has proven to be a successful defense for those clergy who are abiding by church law. Where there is no church ordinance or written expectation of absolutely confidential counseling the clergy are in an unclear area of unwritten expectation. Thus it is incumbent upon the minister in a free church who believes that the expectation of his or her congregation is that the confessional between pastor and penitent should remain sacred and absolutely confidential for the greater good of redemption, must insure that there is written evidence supporting that. This must be done through the church’s constitution and by laws and under girded in the pastor’s job description. Furthermore it should only be afforded to ordained clergy and no other persons within the church in order to highlight the special relationship that occurs in the confessional.
I have never had to carry the weight of keeping child abuse a secret. Either I was able to persuade the counselee to seek help or the abuse was already in the discovery phase and being handled by nonreligious agencies. I have had to encounter spousal abuse and grieve as it went unreported. An abused wife refused to turn in her husband in fear that he would lose his career as field grade officer. That was a burden I had to carry and it was hard. Even so I allowed a wounded, confused, and endangered woman to exit my office most likely to face escalating abuse in order to protect her right of privileged communication. Perhaps I was some help in defining the issues and showing her that she had options. That day, however, was not the day she was ready to take action.
On the other hand I have also been able to save lives. On one occasion a violent Marine confessed to me, because he felt safe within privileged communication, that he planned to murder his wife. I kept him talking long enough to convince him that what he really needed to do was seek help for his feelings of rage. I breathed a sigh of relief when he gave me permission to take his story beyond the confessional. I got help for him and her. No one died that day.
These recollections illustrate both the burden and the need of privileged communication with clergy. Privileged communication is a necessary safety valve that often saves lives. If people feel safe enough a pastor can assist them to seek the help they so desperately need. No one loves children more than me. I have five of my own. I would be the first to scream if anyone harmed them or did not protect them when they could. Thank God for laws that protect the innocent from abuse. Clergy, however, fill a special role and that role must be protected by insuring privileged communication without exceptions.
Editor’s Postscript: As a teacher of Ministerial Ethics and co-author of a text on that subject in which this topic is discussed (Ministerial Ethics 2nd Ed., Grand Rapids: Baker, 2004, 104-106), I must respectfully disagree with the writer’s conclusion, although I appreciate his intent in this dilemma. I often noted to students that confidentiality in counseling is never an absolute and must always be guided by trustworthiness, justice, and prudence. Students were encouraged to share with counselees that confidentiality would be maintained except in matters where the counselee discloses harm intended on oneself or others (suicide/murder), or in cases where the law and concern for victims require disclosure.
 Thomas F. Taylor, Seven Deadly Lawsuits: How Ministers Can Avoid Litigation and Regulation, (Nashville: Abingdon Press, 1996), 56.
 North Carolina General Statue 7a543.