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The Risks of Not Reporting Abuse

State laws pose liability concerns for pastors.

It is common for ministers to learn that a minor is being abused. This can occur in a number of ways, including a confession by the perpetrator, or a disclosure by a friend or relative of the victim or perpetrator. Often, ministers want to resolve such matters internally through counseling with the victim or the alleged offender, without contacting civil authorities. Such a response can have serious legal consequences, including the following: (1) Ministers who are mandatory reporters under state law face possible criminal prosecution for failing to comply with their state's child abuse reporting law; (2) some state legislatures have enacted laws permitting child abuse victims to sue ministers for failing to report child abuse; and (3) some courts have permitted child abuse victims to sue ministers for failing to report child abuse.

What is child abuse?

Child abuse is defined by most statutes to include physical abuse, emotional abuse, neglect, and sexual molestation. A child ordinarily is defined as any person under the age of 18 years. Some states specifically limit the definition of "child abuse" to abuse that is inflicted by a parent, caretaker, or custodian.

Who are mandatory reporters of child abuse?

All fifty states enumerate categories of persons who are under a legal duty to report abuse to designated civil authorities. In most states, such "mandatory reporters" must report both actual and reasonably suspected cases of child abuse. Failure to do so is a crime (usually a misdemeanor). Some states define mandatory reporters to include any person having a reasonable belief that child abuse has occurred. Obviously, ministers will be mandatory reporters under these statutes. The remaining states define mandatory reporters by referring to a list of occupations, which generally includes physicians, dentists, hospital employees, nurses, coroners, school employees, nursery school workers, law enforcement officers, and licensed psychologists. Ministers are specifically identified as mandatory reporters under a few of these statutes. But even if they are not, they may be mandatory reporters if they fall within a listed classification, such as school or child care workers and administrators, or counselors. In summary, many ministers have a mandatory duty to report child abuse. Ministers should not assume that they have no duty to report.

Immunity from Liability

Every state grants legal immunity to reporters of child abuse. This means that a reporter cannot be sued simply for reporting child abuse. However, several states require that the report be based on "reasonable cause to believe" that abuse has occurred. The purpose of extending legal immunity to reporters obviously is to encourage child abuse reporting. However, several studies indicate that numerous false reports have also been encouraged. Persons who maliciously transmit false reports are subject to civil liability in most states and criminal liability in some.

How to Report

Persons who are legally required to report child abuse generally make their report by notifying a designated state agency by telephone and confirming the telephone call with a written report within a prescribed period of time. The reporter generally is required to (1) identify the child, the child's parents or guardians, and the alleged abuser by name, and provide their addresses; (2) give the child's age; and (3) describe the nature of the abuse. Most states have toll-free numbers that receive initial reports of child abuse.

Criminal Liability

While persons who are legally required to report child abuse are subject to criminal prosecution for failure to do so, instances of actual criminal prosecution are rare. However, some clergy have been prosecuted for failing to file a report when they were in a mandatory reporting classification and they had reasonable cause to believe that abuse had occurred. Criminal penalties for failing to file a report vary, but they typically involve short prison sentences and small fines.

The full version of this article first appeared in Church Law & Tax Report, a bimonthly newsletter for church administrators and pastors. For subscription information, visit ChurchLawToday.com/newsletters.php.

Richard Hammar's complete 50-state review of child abuse reporting laws, "2009 Child Abuse Reporting Laws for Churches," is available at ChurchLawAndTaxStore.com.

This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.

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