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Q: Do
I have a duty to report child abuse?
Dear Attorney:
I am a pastor and my adult nephew recently accepted the Lord and confessed
privately to me an incident that occurred involving him having
sexual thoughts about an 11 year old girl who was a guest in his
family's home during his sister's slumber party. He admits that
he touched girl’s thigh over her nightgown at night. He felt convicted and acted no
further on his sexual impulse. The girl was apparently unaware
of being touched. The girl does
not belong to our church but rather is a friend of his sister's. Do
I have a duty to report the incident to
authorities?
Minister in Southern California
A: Yes, but only
if (1) you learned of the incident in your professional or
employment capacity, (2) the touching constitutes statutory
child abuse, and (3) the penitential communication exception
does not apply.
Dear Minister:
As a general rule, clergy members have a mandatory reporting
duty only in their professional or employment capacity to report
suspected incidents of child abuse or neglect. A mandated
reporter “shall make a report ... whenever the mandated
reporter, in his or her professional capacity or within the
scope of his or her employment, has knowledge of or observes a
child whom the mandated reporter knows or reasonably suspects
has been the victim of child abuse or neglect . . .” Penal Code
Section 11116(a).
Statutory examples of reportable acts of sexual child abuse
include intentional touching of intimate body parts, or the
clothing covering intimate body parts where the touching is for
the purpose of sexual arousal or gratification. The inner thigh,
groin or genital area is considered to be intimate body parts.
These body parts of a child may be touched for normal caretaker
responsibilities or interactions or a demonstration of affection
for a child so long as the touching is not for sexual purposes
or gratification. Penal Code Section 11165.1(b)(4).
If a member of the clergy is aware of a prohibited sexual
touching and learns of this abuse in his or her employment or
professional capacity, then the clergy member has a mandatory
duty to report such touching to authorities unless the knowledge
was acquired during a penitential communication. Knowledge of
child abuse acquired during a penitential communication is not
subject to the mandatory reporting requirement.
However, the penitential communication exception is very
narrowly drawn and strictly defined by statute. There is a
three-part test to determine whether the exception to the
reporting rule applies. First, the communication must have been
“intended to be in confidence, including, but not limited to, a
sacramental confession”. Second, the communication must have
been made to a clergy member who, in the course of the
discipline or practice of his or her church, denomination, or
organization, is authorized or accustomed to hear those
communications”. And third, “under the discipline, tenets,
customs, or practices” of the clergy member’s church,
denomination, or organization, the clergy member must have a
“duty to keep those communications secret.” Penal Code Section
11116(c)(1). If any of these three elements are missing, then
the penitential exception would not apply and the matter must be
reported.
In your particular situation, there are several facts that need
to be clarified to determine whether you have a reporting obligation. It is unclear whether
the family member confessed this incident to you in your capacity as an
uncle or in confidence as a penitential communication in
connection with his recent conversion. Similarly, it is unclear
whether you consulted or sought your advice in your
capacity as a family member or as a member of the clergy or
all of the above. The other issue that needs to be clarified is
where he touched the girl on her thigh. If he touched her
inner thigh or other intimate area of her body, even if the body
part was covered by her nightgown, then this touching may
qualify as a reportable event if you learned of the touching in
your professional or employment capacity. There would likely be
no duty to report a touching on the outer or back of the thigh
unless the buttocks or inner thigh were involved.
In the event that you conclude that you have a
duty to report, then you should immediately make a telephone
report to any police department or sheriff’s department plus
submit a written report within 36 hours of receiving the
information concerning the incident. Any written report should
include the information required by Penal Code Section 11165.9
and 11167.
Keep in mind that a clergy’s failure to report where a mandatory
duty exists constitutes a misdemeanor punishable by up to six
months confinement in a county jail or by a fine of one thousand
dollars ($1,000) or by both that fine and punishment.
The text of the Child Abuse and Neglect Reporting Act is
located on this website under Laws & Statutes to assist you in
evaluating your reporting obligations. |
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The above is a hypothetical case involving fictional clergy
members. The purpose of the general advice is to educate and
aid clergy members in evaluating their mandatory reporting
obligations. Any similarity to a specific person is purely a
coincidence. If you have a hypothetical question that you
wish to have anonymously published or if you wish to comment
on this hypothetical, please
contact us. The comments herein are not intended as a
substitute for legal advice about a specific situation. Any
clergy who is faced with a mandatory reporting obligation
issue is urged to consult legal counsel familiar with their
case to protect both themselves and their church. |
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