It's a dilemma that crosses denominations. And the laws can be surprisingly inconsistent.
A parishioner, wracked with guilt, goes to his minister to confess the unthinkable: that he has been sexually abusing a child. But that minister, instead of going to police, decides to pray with the abuser instead.
On the face of it, this seems a legitimate ethical dilemma for any minister -- keep the confession confidential or turn that person in. But is it? This scenario actually happened in 2003 at Homestead Heritage, a religious community in Waco, Texas. The confessor ultimately gave himself up to police a year later, but the specter of his confession reappeared in 2009 when another man from the same community was also prosecuted for child sex abuse and was sentenced to 35 years earlier this month.
Secular society would say there is no choice: pedophiles should be stopped and children protected at all costs. But it's a dilemma that has dogged some religious denominations for a while. Where penitent-clergy privilege is not protected by law, is a minister's loyalty still to his confessor? The question is complicated by the fact that there is no legal uniformity across the U.S.; in some states, the law is gray at best. In Virginia, for example, the confession box is sacrosanct and a priest is not compelled to report a child abuser. In Texas, meanwhile, the clergy is offered no such privilege .
Under the Texas Family Code, all professionals who suspect abuse or neglect of children are obliged to report their concerns to police or child protective services within 48 hours. The law applies to clergy as well as schoolteachers, doctors, nurses, therapists, mental health professionals, social workers, child-care providers and others. Failure to comply is a Class A misdemeanor, punishable by a fine of up to $4,000, up to a year in jail, or both. Before this law was introduced in 1995, the legal code simply held accountable "any person having cause to believe" the abuse was happening. But even then, an Attorney General's opinion in 1985 clarified that this category certainly included clergy.
Twenty-six states currently specify members of the clergy among professionals required to report child abuse. In 18 other states, "any person" who suspects child abuse is required to report--a mandate that would appear to include clergy but could be interpreted differently.
To clear up what is essentially a legal mess and--for some, a moral minefield--Rep. Karen Bass (D-Calif.) introduced the Speak Out to Stop Child Abuse Act in November, a bipartisan bill that would require all adults to report.
Child welfare campaigners say it can't come fast enough. Jim Hmurovich, president of Prevent Child Abuse America, supports mandatory reporting for everyone, but he warns that any such law needs to be thoroughly considered first. "There must be a political and a public will to promote public awareness of the requirement, provide adequate and on-going training, and a willingness to enforce it."
Many religious denominations agree. Dr. Richard Land, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention says professional privilege is not as ironclad for protestant pastors. "And I think 99 percent of ministers would say the first requirement is to protect the innocent."
But Land points to a distinction between the Catholic and Protestant traditions. "Catholicism requires you to confess to a priest. The Protestant tradition does not. So that does entangle Catholics a little differently than it does us." In other words, if a Protestant minister learns of a crime against a minor, his loyalty is to the victim, not the confessor. "I know of a situation where a pastor knew about someone who had sexually abused his daughter in the past and the pastor didn't report it to the authorities," Land says. "His inaction ended up splitting the church down the middle."
Interestingly, the Baptist Convention of Texas even offers advice on "keeping your church out of court." In the words of the preamble, "No church wants be sued by a disgruntled former employee, uncover child abuse, or be the site of an accident."
For the Catholic Church, however, where the seal of the confessional is absolute, there can be issues. And according to Lisa Fullam, associate professor of moral theology at the Jesuit School of Theology in Berkeley, California, it's a huge offense to violate that seal. Fullam says this is o ne of the rules of the Catholic Church that has been remarkably well observed over the centuries. She notes that balancing a priest's loyalty to a church tenet with his obligation to obey the law of the land can be problematic.
But she says there are still things he could do. "He could say that, as a condition of receiving absolution, the person confessing must go to the proper authorities. Confession requires a firm purpose of amendment and the priest could say he must turn himself in." She adds though, that if the confessor disagrees, the priest is still bound by the secrecy of the confessional.
Anson Shupe, a sociology professor at Indiana University-Purdue University Fort Wayne, says that as a result there are many priests who have become accomplices after the fact. "What complicates it is that the pastor [or priest] needs to protect his whole flock, and in turn they expect to be able to tell him something in confidence. And then he turns round and betrays that confidence."
Shupe says at that point there is more than one victim: the primary victim is the victim of the crime; the secondary victim is the congregation; and the third is the faith they are a part of. "It's a real dilemma in any denomination."
It's not just ministers facing that tricky predicament. The Texas State Board of Examiners of Psychologists recently asked the attorney general's office to decide whether a mental health professional treating an adult patient must report abuse or neglect that the adult patient suffered during childhood. His opinion is expected in a few months.