By Robert Erven Brown
Examining mandatory reporting of “reportable” sexual offenses involving minors
It’s Sunday morning, and a senior pastor is walking across the church parking lot. He’s still processing the sermon he just delivered. Trying to focus on a thousand other details, he notices a 30-something male — a
church member — approaching.
“Pastor, I need to tell someone,” the man says. “I viewed child pornography online multiple times in the past month, and I feel terrible about it.” Before the pastor can interrupt, the distraught member states that he did not download the images, but that he’s been consumed by viewing them.
Speechless, the pastor collects himself and attempts to provide guidance. They pray together, asking for forgiveness and protection. Before a follow-up meeting can be scheduled, the man turns and walks away.
What just happened?
All 50 U.S. states have a mandatory reporting process for certain people — usually referred to as “mandatory reporters” — who receive confirmation suggesting that child abuse might have occurred. The type of person required to report, and the type of actions considered child abuse.
State laws also differ in the penalty for failure to report. Some make the person who fails to report liable for damages proximately caused by the failure. Others impose criminal liability ranging from misdemeanor to felony.
The legal obligations imposed on the pastor from the example above depend on which state he lives in. Our firm has assisted several Arizona churches in analyzing the complex law under similar facts. The specific answer reached under Arizona law might be different than in your state; however, the analysis would be similar and might help you understand how to approach the problem.
How the law works
Arizona’s criminal code requires a “person” who qualifies as a “mandatory reporter” who reasonably believes that a minor is or has been the victim of physical injury, abuse, neglect or child abuse, (i.e., a “Reportable Offense”) to immediately report tow the police.
Key question: What’s a “Reportable Offense”? “Reportable Offense” includes “sexual exploitation of a minor.” Arizona courts have reviewed two cases involving similar facts. In these cases, Arizona courts determined that downloading or saving child pornography, qualifies as sexual exploitation of a minor. It’s clear that if the church member downloaded or saved the child pornography, the act qualifies as a sexual exploitation of a minor. Arizona law is unclear whether viewing child pornography alone— without saving or downloading — qualifies as “sexual exploitation of a minor.” (However, an aggressive prosecutor could certainly make the argument.)
Key question: Is watching child pornography a crime? Although Arizona law isn’t clear on this point, the most conservative approach is to label the viewing of internet child pornography as “sexual exploitation of a minor,” in which case the mandatory reporting law is triggered. If an individual who qualifies as a mandatory reporter fails to report in Arizona, they might be guilty of a Class 6 felony.
Key conclusion: The pastor clearly is a mandatory reporter! To determine if the senior pastor is a “Mandatory Reporter,” we examine the definition of “person” in Section 13-3620(A) (1) and (2) of Arizona’s Criminal Code. These sections specifically include “member of the clergy, priest or Christian Science Practitioner;” (collectively “Clergy”). Note that these persons are also defined as “Mandatory Reporters” — “counselor, school personnel, parent, guardian, or any person responsible for care or treatment of the minor.”
Key question: Does the communication qualify as a protected “confession” under the priest / penitent privilege? That same section of Arizona’s Criminal Code provides one exception to the reporting requirement.
The pastor may withhold reporting of the parking lot conversation only if the communication meets all these requirements: The confession was received in role as member of the clergy; it was a confidential communication; the confession was received in the course of the discipline enjoined by the church to which the member of the clergy belongs; the Clergy determines that it’s reasonable and necessary within the concepts of the religion, and; this exemption applies only to the confession and not to personal observations made by the Clergy.
It should be painfully obvious by now that — right after he finishes praying — the ambushed pastor should call an attorney with criminal defense experience. With the benefit of state-specific legal advice, the pastor might be able to argue that while he definitely is a mandatory reporter: the conversation was received within the scope of a “confession”; it was accompanied by a prayer for forgiveness; it was reasonable and necessary within the concepts of the religion; it was intended to be private (since no one else was present); it was solely an oral confession and not an observed fact, and; the member has not shared this information with anyone else.
If the prosecutor agrees with these conclusions, then the pastor isn’t required to file a police report in Arizona. The pastor is knowingly taking a risk since the scope and definition of the term “confession” hasn’t been tested in the mandatory reporting context in the Arizona Courts.
Moreover, if the member shared the information with anyone else, then the clergy privilege is waived and the head pastor might be required to testify against the member. If a court found that the member’s statement was not a confession, then the pastor could be found guilty of a class 6 felony (punishable by up to two years imprisonment or a fine of up to $150,000).
It is important to understand that the police, not the church, have the legal right and the legal duty to investigate the potential crime. If there’s a potential child abuse event, it’s imperative that the church avoid all contact with the alleged abuser. Under no circumstances should the pastor or his staff contact a potential abuser; that contact must be left to the police.
It’s critical that church leadership quickly seeks out legal counsel after such an event because some states have time limits on reporting requirements. In Arizona, a Mandatory Reporter must “immediately” telephone the police or report in person. Then, he or she must file a written report with the police within 72 hours to report the event. (A.R.S. 13-3620D.)
Robert Erven Brown is an attorney licensed to practice in Arizona. He and his nonprofit practice group work with nonprofits and churches, helping them manage key operations connected with their missions, visions and causes. As permitted by local Rules of Ethics, they collaborate with attorneys who are licensed in states other than Arizona. He is the author of Legal Realities: Silent Threats to Ministries, which describes his Campus Preservation Planning© initiative — a comprehensive program designed to manage the wide array of risks facing non-profit organizations. [silentthreats.com] Footnotes were omitted.
This publication 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. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Simply reading this material this does not create an attorney / client relationship with Brown, as this article is general legal information, not legal advice. A formal attorney / client relationship will not be established until a conflict check is completed and an engagement letter has been signed by both the attorney and the client. No “informal” legal advice will be provided by telephone. Simply sending an e-mail to Brown will not create an attorney / client relationship.