Clergy Child Abuse Reporting Laws Uneven, Leave Loopholes

This story was originally published by Stateline, an initiative of The Pew Charitable Trusts.

When a Virginia 16-year-old told her parents that their church’s youth leader, Jordan Baird, had been sending her sexually suggestive text messages, they immediately confronted their pastor.

Pastor David Baird, the perpetrator’s father, said the church would investigate, but he did not tell law enforcement authorities—and he wasn’t required under Virginia law to report a suspected case of abuse or face criminal charges. The abuse became physical, and later other girls accused Jordan Baird of assaulting them.

Jordan Baird served eight months in prison after being convicted on five felony counts of indecent liberties with a minor. But church members want state law changed to force pastors like David Baird, who still leads the Life Church in Manassas, Virginia, to join the list of professionals specifically required to report such incidents.

They brought their story to Democratic Virginia state Del. Karrie Delaney, who was a sexual assault crisis counselor in Florida before moving to Virginia.

“Their church was really torn up by the allegation and the fact that the young man who was the perpetrator ended up doing the same thing to another person after the first one wasn’t reported,” Delaney said. “When I sat down with them and heard the story I knew this was something I had to do.”

She and others introduced legislation this year that would add clergy to the state’s list of “mandatory reporters,” people who work with children—such as teachers, counselors and athletic coaches—and who are required by law to report suspicions of child abuse to law enforcement authorities.

While most states have broad laws calling on anyone who learns of child abuse to report it, mandatory reporters can be charged with a crime for failing to do so.

If passed, Virginia would join the more than half of states that include clergy as mandatory reporters of child abuse, according to the U.S. Department of Health and Human Services Child Welfare Information Gateway division. Baird says he would’ve reported his son had he known more details, and he supports the Virginia bill.

But even though many states require clergy to report abuse, most do not require them to disclose allegations made in private, under what is called “clergy-penitent privilege.”

Like attorney-client privilege, private discussions between clergy and penitents are considered by many religions to be sacrosanct. This is especially true in Catholicism, in which parishioners confess their sins to a priest and ask forgiveness.

Only New Hampshire, North Carolina, Oklahoma, Rhode Island, Texas and West Virginia specifically deny the clergy-penitent privilege in child abuse cases, according to HHS.

Delaney’s bill would not require reporting allegations of abuse made in the confessional and “similar types of counseling where the doctrine of the church requires that confidentiality be maintained,” Delaney said.

Asked whether that was a loophole in the bill, Delaney said the biggest “loophole in Virginia is that clergy don’t have to report at all, and if we could close that loophole this year in Virginia, this would be a huge victory for children.”

Other areas also are looking to act. District of Columbia Attorney General Karl Racine, a Democrat, Wednesday called on the D.C. Council to pass a new law that would put clergy in the mandatory reporting category, in the wake of a grand jury report in Pennsylvania that Catholic priests abused 1,000 children over 70 years.

“The revelations from the Pennsylvania report were a wake-up call for everyone,” said Elizabeth Wilkins, senior counsel for policy at the attorney general’s office. “That highlighted child sex abuse in the context of the church, and we looked at that as an opportunity to look at mandatory reporting laws to see if they were strong enough across the board.”

Racine, in a statement, said the bill he is recommending “requires more adults to report it and trains them on how to spot it.”

It would add clergy to the list of mandatory reporters, along with other religious officials, such as lay leaders and members of boards of directors. But it does exempt the clergy-penitent conversations.

Racine said that decision came after considering feedback from the city community. “We determined that moving forward with a strong proposal that has maximum support from the community was the best way to protect our children now,” he said in a statement to Stateline.

Legislation compelling clergy to report child abuse also is up for consideration in New York. It was introduced this year by a group of Republican state senators and includes an exception for information received during “confession or confidence.”

Ohio’s mandatory reporting law, which includes clergy, will expand to include “peace officers,” like cops, sheriffs and other law enforcement officers. The expansion, which takes effect in March, still exempts cleric-penitent conversations.

Privileged Disclosures

In response to reports of child abuse, the U.S. Conference of Catholic Bishops last year revised its “Charter for the Protection of Children and Young People” to require tougher steps to be taken if a priest or other clergy member is accused of child abuse. But it specifically exempted the confessional, calling for “due regard for the seal of the Sacrament of Penance.”

The Truth and Transparency Foundation, a Utah-based organization that became famous for leaking private documents and videotapes of the Mormon Church discussing misbehavior by missionaries, has asked lawmakers in Utah and California to consider removing the clergy-penitent protection.

“We, at the TTF, believe that any exemption of clergy members in mandatory reporting laws is an affront to the safety and well-being of abuse survivors and provides an environment where predators are enabled,” the group said in a letter to legislators in the two states.

Ryan McKnight, executive director of the foundation, said in an interview that his group has released private documents showing that the Mormon Church has avoided taking action on allegations of purported child abuse. The LDS church did not respond to a Stateline request for comment, nor did it comment when asked by local media.

“What we asked them [legislators] to do was to ... require clergy to report the abuse no matter how they hear about it, and let the authorities decide,” he said. He suggested modeling the law on Texas’ statute, which explicitly includes clergy-penitent conversations.

No Utah or California lawmaker has gotten back to the group’s requests for a response or taken legislative action, McKnight said.

The argument over clergy-penitent privilege centers on the First Amendment protections of religious practice versus the interest of the state in protecting its residents.

In an award-winning 2017 paper for the Louisiana Law Review, then-law student Caroline Donze argued against states using clergy-penitent privilege to exempt confessional sessions and conversations from mandatory reporting laws.

“Because valuable information is frequently learned within private communications, states cannot adequately police child abuse without an unconditional mandate for clergy to report that extends to confidential settings,” Donze concluded.

Donze cannot discuss specific child abuse cases or state laws in her position as a clerk for U.S. Magistrate Judge Joseph Wilkinson of the Eastern District of Louisiana. But she said in an interview that in the constitutional conflict between religious freedom and the state’s obligation to protect its residents, protection of children should prevail.

“If we were to repeal all those carve-outs and make priests mandatory reporters in all scenarios, just like teachers, coaches and counselors, that would be constitutional because of the prevailing state interest in protecting children from abuse,” she said.

In her paper, Donze wrote that states’ cases for valuing protection of children over religious freedom are bolstered by the revelation by the Boston Globe “Spotlight” team in 2002 that the Catholic Church went to great lengths to cover up sexual abuse by priests.

Christopher Seiler, a priest and teacher at the Kenrick-Glennon Catholic Seminary in St. Louis, in a posting for Aleteia, an international Catholic church blog, argued that confessing sins is a key church tool for allowing parishioners to steer themselves away from bad behavior.

“The sacrament of Penance … is a divinely instituted safe-space where fear and condemnation have no place, but hope and forgiveness reign,” he wrote. “We should pray that this sacrament and her seal is respected and preserved by those within and without the communion of the Church.”

And the Virginia Catholic Conference, in its 2019 legislative agenda, said it “supports adding clergy to [a] state list of mandated reporters of child abuse and neglect, with exemptions for clergy-penitent communications.”

The Massachusetts legislature, responding to the “Spotlight” stories, passed a mandatory reporting law for clergy in 2002. Under pressure from religious leaders, it exempted the confessional.

Coming Forward

Many church abuse victims face difficulties reporting the incidents.

Gloria Harding, mother of Morgan Harding, who brought the abuse case against Jordan Baird, said her daughter was very connected to the church and trusted its leaders. Baird at first showed seemingly innocent interest in the teenager, but eventually the attention turned inappropriate and physical. Morgan Harding, now 20, has since come forward to discuss her experience publicly, and addressed Baird in open court.

Morgan Harding kept the secret for 18 months during 2014 and 2015, her mother said, believing she would lose her church community—singing in the choir, leading kids’ services and praying—if she came forward. Finally, she told her parents some of the story — about the text messages.

The Harding family is suing the church for $21 million.

David Baird, reached by telephone at his church in Manassas, said the revelation of the initial text messages was not enough to trigger a mandatory reporting law, even if one had existed in Virginia at the time. It was only later, he said, that he learned of his son’s other actions.

Jordan Baird, 27, who was mentored as a pop singer by Joe Jonas in 2012 on CW’s “The Next: Fame is at Your Doorstep,” was put on a leave of absence, his father said.

David Baird said he supports the Virginia bill.

“People think because it was my son I wouldn’t report it. That’s not true,” he said. “The [initial] allegation was about inappropriate texting, but not sexting, and that’s not a reportable allegation.”

But the HHS child welfare bureau says that reporting abuse is mandatory when the reporter “suspects or has reason to believe that a child has been abused or neglected.” The person reporting the incident does not have to witness the act or hear it from the child, HHS guidelines state.

Reporting is also mandatory, according to HHS, when the reporter knows about “conditions that would reasonably result in harm to the child.”

In Virginia, a Senate companion bill to Delaney’s House version had a hearing this week. At the hearing, Gloria Harding testified that what happened to her daughter at the hands of her church “is a special kind of evil that is destroying millions of children in churches all over the world and all over this nation. It has to be stopped.”

The sponsor of the bill, state Sen. Jill Holtzman Vogel, a Republican, said at the hearing she is “cautiously optimistic” that it will pass.