CHILDREN, CHURCHES, AND THE LAW: Massachusetts' Proposal To Require Clergy To Report Child Abuse

By MARCI HAMILTON


hamilton02@aol.com
----
Thursday, Aug. 16, 2001

At first glance, the news that Massachusetts is considering a bill that would require clergy members to report child abuse might seem shocking. Of all the people in our culture who we would think would be operating in children's best interests, it would be the clergy. We assume not only that they are protecting children, but also that no law is needed to force them to do so.

But the truth behind the law is less comforting. Reports indicate that a priest who allegedly abused dozens of children in Boston was not relieved of his duties, but rather shifted from church to church. The switch, it is claimed, only gave him in effect a fresh crop of children to abuse.

Furthermore, this is not the only recent story of clergy abuse. In recent months, other clergy and youth ministers, too, have been in the headlines for their seriatim abuse of children under their care. Given these incidents, the Massachusetts law begins to look not shocking, but necessary.

The Churches' Own Solutions to Abuse

The practice of transferring abusers within the church has been going on in many churches for ages. The idea is that if the abuser is separated from his victim, and receives church counseling, the abuse will not recur. Yet religious organizations are coming to acknowledge the latest medical evidence that indicates that recidivism rates for pedophiles are extremely high — meaning that transfers are no solution (and may only multiply the misery).

Admitting that their past practice of prayer and transfer is ineffective is a difficult step for these organizations to take. They have not intended for children to be hurt. Rather, they have believed fervently in the power of prayer and the community of the church to stop the abuse. Yet, children have suffered.

So what is society — increasingly trying to find ways to protect its children even in contexts, such as church and daycare, that seemed safe — to do? It has turned to the law, apparently unwilling to permit the churches to take more time to treat their own.

The Churches' Schizophrenic Position

At first, the Catholic Church opposed the Massachusetts proposal, on the ground that it would violate the privacy of the confessional. But lawmakers have assured the church that they are working to try to keep the confessional sacred and privileged; the law requires reporting only of information about child abuse obtained outside the confessional. With those assurances, and under the pressure of massive press coverage, the Church has now become a supporter of the law, making its passage much more likely.

The churches have exhibited schizophrenia over the problem, however. Although the Catholic Church now supports an obligation to report child abuse in Massachusetts, in Colorado it has supported a "no fiduciary duty" bill that would make churches immune from damage awards in cases where they knew of the clergy malpractice and child abuse.

[ Children, Churches, and the Law]

The Presbyterian Church also has supported the Colorado bill. The bill has yet to be passed, however, in part because of the work of child advocates.

Here we have the specter of two mainline, powerful churches intent on protecting their coffers when one of their own abuses a member. They are asking the legislature to remove an extraordinarily strong deterrent to hiding abuse: legal and financial liability.

Why Churches' Cooperation Is Necessary

The Massachusetts and Colorado legislative scenarios make clear that ending child abuse by the clergy — whom children are taught by and are naturally inclined to trust — will take more than an acknowledgment of the latest medical knowledge, and more than press coverage of a problem so long left unreported. It will also require the cooperation of the religious denominations themselves.

In this day and age, legislators–whether Republicans or Democrats–do not turn down requests by religious lobbyists easily. To the contrary, there is an open door policy for religious requests that we have never seen before, a lawmaking environment avidly encouraged by President Clinton and continued by President Bush.

Law that can create a climate of safety for children will not be passed so long as the powerful religious lobbies resist disclosure of child abuse within the church, and seek to reduce liability for that abuse when it occurs. With the Colorado and the Massachusetts legislative stories simultaneously in play, the future for protecting children from clergy abuse is hard to predict.


Marci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is Hamilton02@aol.com. Her prior columns on church/state issues may be found in the archive of her pieces on this site.

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More