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HB 1230: Adding Clergy and Church Staff to Mandatory Reporters Problematic

(The South Dakota Legislature, with its continual attacks on LGBT children, creates an environment that is injurious to children’s welfare and threatens children with substantial harm. I feel obliged to report that abuse.)

Three out of eighteen bills sponsored by rookie Democratic legislators remain alive. One of those bills, House Bill 1230, must clear the House on Monday, “Crossover Day,” when all bills must pass their chamber of origin. Sponsored by the intrepid Representative Erin Healy (D-14/Sioux Falls), HB 1230 would add clergy and church staff to the list of “mandatory reporters,” individuals who work with children and thus are required to report suspected child abuse. I’m not sure it’s a good bill.

I’ve been a mandatory reporter as a teacher. My signifiant other, a pastor, would become a mandatory reporter under HB 1230. So would her secretary, the church organist, and the church maintenance man.

Our mandatory reporting law entered the books in 1964. We can see its expansion in the order of professions listed as mandatory reporters:

Any physician, dentist, doctor of osteopathy, chiropractor, optometrist, emergency medical technician, paramedic, mental health professional or counselor, podiatrist, psychologist, religious healing practitioner, social worker, hospital intern or resident, parole or court services officer, law enforcement officer, teacher, school counselor, school official, nurse, licensed or registered child welfare provider, employee or volunteer of a domestic abuse shelter, employee or volunteer of a child advocacy organization or child welfare service provider, chemical dependency counselor, coroner, or any safety-sensitive position as defined in § 3-6C-1 [any law enforcement officer authorized to carry firearms and any custody staff employed by any agency responsible for the rehabilitation or treatment of any adjudicated adult or juvenile]… [SDCL 26-8A-3].

The standard requiring any of the above individuals to report is “reasonable cause to suspect that a child under the age of eighteen has been abused or neglected as defined in § 26-8A-2.” Any mandatory reporter whose report turns out to be unfounded is immune from liability, as long as the report is made in good faith.

HB 1230 seeks to protect children. Adding clergy and church staff appears to target sexual abuse by religious leaders, a grave issue worth addressing. However, HB 1230 is problematic in a few ways.

First, HB 1230 takes the unusual step of including the staff surrounding a professional as mandatory reporters. The secretaries and custodial staff of hospitals, clinics, dental offices, social work agencies, and schools are not required to report reasonable suspicions of child abuse. (I hope they do, but statute does not require them to.) Only domestic abuse shelters and child welfare organizations face that blanket mandate on all staff. The mandatory reporter law originally focused on medical professionals, folks with training and access that allows them to identify and diagnose injuries that indicate abuse or neglect. HB 1230 says that the church organist who notices that little Joey comes to church limping has to think about whether she should call the cops. Should church staff be held to the same standard as medical psychological professionals in reporting suspected abuse?

Second, HB 1230 creates a minor tangle in the state’s recognition of clergy confidentiality. HB 1230 excludes information obtained through communications protected by religious privilege. SDCL 19-19-505 extends that privilege strictly to clergymen (which HB 1230 wisely amends to read “member of the clergy” and gender-pronomializes to include females, thank you). Yet HB 1230 Section says [emphasis mine], “Any member of the clergy or church staff is exempt from reporting under § 26-8A-3 if the basis for the reasonable cause to suspect abuse arose from a communication made to a member of the clergy or church staff in his or her professional character as spiritual advisor in accordance with the rule for religious privilege contained in § 19-19-505…..” One could read that language as extending clergy privilege to church staff who are not clergy but are just having a nice chat about the Lord’s Grace, which is kind of like saying I can claim attorney-client privilege when someone calls and asks me about petition law. Alternatively, one could read HB 1230 Section 2 as falsely suggesting to church staff that they have a privilege that other statute does not support. Either way, Section 2’s inclusion of non-clergy staff in clergy privilege is problematic and should be struck before passage.

Third, HB 1230 gets me wondering about the necessity of the entire mandatory reporting law. We already have a statute making it a crime for anyone to fail to report a felony. That failure to report is called misprision:

Any person who, having knowledge, which is not privileged, of the commission of a felony, conceals the felony, or does not immediately disclose the felony, including the name of the perpetrator, if known, and all of the other relevant known facts, to the proper authorities, is guilty of misprision of a felony. Misprision of a felony is a Class 1 misdemeanor. There is no misprision of misdemeanors, petty offenses, or any violation of § 22-42-5.1 [drug use] [SDCL 22-11-12].

Child abuse is a felony. The misprision-of-felony statute applies the same Class 1 misdemeanor penalty (max one year in jail, $2,000 fine) as the mandatory reporting law. So tell me (and I’m really asking: there could be a shade of law here I don’t grasp): what accountability do we obtain under the mandatory reporting law, with or without HB 1230, that we cannot obtain under misprision law?

Opposing House Bill 1230 doesn’t make for good optics. At the hearing before House Judiciary Wednesday, lots of decent people came forward to advocate for requiring clergy and church staff to report suspected child abuse or neglect. The sole opponent was Brett Koenecke, lobbying on a volunteer basis on behalf of the South Dakota Synod of the Evangelical Lutheran Church in America. Koenecke said “reasonable cause to suspect,” the language in existing law, is a jumble of words. He said that while folks higher up the list of mandatory reporters are likely to have an evidentiary basis for reporting, clergy are likely to have plain hearsay to go on. Koenecke also expressed alarm at sweeping church staff, including his organ-playing wife, into the mandatory reporting net without a clear definition of church staff. He also suggested that the “church staff” language fails to apply to mosques and synagogues, creating an unacceptable double standard.

In rebuttal, Representative Healy said that hearsay is “all the more reason to look into the situation.” With due respect for the Representative’s desire to protect children, we must remember that hearsay is not evidence. We should also be alarmed at the suggestion that Rep. Healy envisions not only an obligation to report but an obligation to investigate. If her intent is that HB 1230 should subject mandatory reporters, including clergy, to liability for failing to seek out evidence of child abuse or neglect, then we need to have a whole ‘nother conversation about the state deputizing citizens as detectives.

The ELCA’s opposition swayed only Reps. Hansen, Latterell, and Pischke to vote against HB 1230 in committee. That’s not company in which I like to stand… but I can see the point that there are technical problems with House Bill 1230 and possibly with the entire mandatory reporter law.

I’m glad to see any Democrat, especially a rookie Dem like the courageous and vocal Representative Healy, manage to get a bill to the House floor. I’m just not sure that her House Bill 1230 is legislation that should become law.

24 Comments

  1. Donald Pay 2019-02-23 09:45

    Since we were mandatory reporters, our agency provided annual training on how to recognize sexual and physical harassment and abuse. Our agency was large enough to have our own training staff to do this. Other agencies used training resources from the county. So, there is a cost involved, but I think it’s worth it.

    You do need to have training in this. I had several clients who were victims and I had to report. We filled out paperwork to document what we saw or heard from a client, and then made a call to a county contact. They took it from there. Since these were our clients, we felt the need to support them through the process, but you had to sort of back out, because these were criminal investigations. What you are reporting are facts and hearsay about whatever the person confides in you.

    We also had a client who was a paroled child molester, and had to report on him if he did anything that violated his behavior plan.

  2. Porter Lansing 2019-02-23 10:24

    Hearsay is important to begin an investigation. Often the one in charge isn’t privy to what’s going on behind the scenes. Keeping the boss in the dark unless absolutely necessary is common place. Especially in SD, where gossip is the unofficial state hobby.

  3. bearcreekbat 2019-02-23 11:59

    I agree with Porter. Indeed, the whole idea that “we must remember that hearsay is not evidence” is simply mistaken. Not only is hearsay “important to begin an investigation,” it is “evidence” that by itself is sufficient to support a search warrant, arrest warrant, criminal information (charges filed by other than a grand jury), grand jury indictment, and in many cases, a criminal conviction under the reasonable doubt standard.

    While many forms of hearsay are deemed by statute to be too unreliable to be admitted in criminal trials, hearsay falling within specific exceptions to such statutory exclusionary rules is deemed reliable, admissible, and entirely sufficient to support a conviction.

    That said, it seems to me that HB 1230 has a greater liklihood of running afoul of the 1st Amendment. Since the government is prohibited from enacting laws that interfere with the free exercise of religion. Laws aimed specifically at members of churches and religious groups, rather than all individuals, seem contrary to the proscriptions of the 1st Amendment.

  4. Debbo 2019-02-23 13:47

    I always considered myself a mandatory reporter, regardless of the law, because I always felt it necessary to put children first, damn the consequences, literally.

    I’ve made several reports and it’s not pleasant, but usually what happens after making the report is — nothing. At least nothing the reporter is aware of. Social services and/or police take it from there.

    Reporting suspicions is just that. It’s reporting a reason for an investigation to begin. Investigations can be somewhat traumatic for a family, but much less than abuse within the family.

    Reports can be made anonymously and don’t require documentation unless your employer requires it. A phone call will do.

    What I would suggest for this bill is funding to cover some form of information to be sent to every denomination and every unaffiliated church possible. The information would be about what mandatory reporting is, what it means, how it works, phone numbers, etc.

    BCB, how is adding church people to the list of established mandatory reporters specifically aimed at them? As we know, they are sites of abuse too.

  5. Debbo 2019-02-23 15:40

    “A top cardinal has admitted that the global Catholic Church destroyed files to prevent documentation of decades of sexual abuse of children, telling the prelates attending Pope Francis’ clergy abuse summit Feb. 23 that such maladministration led ‘in no small measure’ to more children being harmed.” German Cardinal Reinhard Marx. National Catholic Reporter
    https://goo.gl/i7yRfT

    If that happened in SD, and this bill was enacted, would that mean another count that could be levied against the ones destroying files? I imagine it’s already a crime of destruction of evidence or something.

    I want pedophiles to be very afraid of harsh punishments, anything to aid deterrence.

  6. bearcreekbat 2019-02-23 19:32

    Debbo, I think I understand your question. Since many other groups are mandated reporters because they have frequent contact with children and/or abusers, churches can be classified in a similar manner because churches also have similar contact with children and/or abusers.

    I don’t know how a court might rule on this argument. It seemed that by adding only language relating to the clergy and church the new legislation was specifically aimed at the clergy, but not at others. There may be merit to the argument that members of a church are not being singled out, rather, they are simply being required to obey mandatory reporting laws that already apply to all other similar groups.

  7. Cory Allen Heidelberger Post author | 2019-02-24 08:24

    I’ll acknowledge that hearsay can reasonably prompt an investigation by law enforcement; however, as BCB notes, most hearsay is not admissible in court. But the mandatory reporter law does not compel any mandatory reporter to conduct an investigation, does it?

    And indeed, First Amendment: can the state compel the church to act as an agent of the state?

  8. bearcreekbat 2019-02-24 12:17

    This law seems ambiguous regarding whether it “compel[s] any mandatory reporter to conduct an investigation.” The phrase “reasonable cause to suspect” suggests that a mandatory reporter may not ignore anything that might prompt an investigation.

    While the statute does not explicitly require the reporter to personally conduct the investigation, the requirement that any “reasonable suspicion” be reported to an investigative agency seems to fully implicate the reporter in the investigative decision. Indeed, it is hard to imagine any state agency initiating and conducting an investigation absent some “reasonable suspicion” of wrongdoing as the normal trigger. And in legal terms, “reasonable suspicion” is a less demanding standard than “probable cause.” This seems analogous to a police officer providing reported details of an alleged crime to the detectives who follow up with the actual investigation.

    Cory makes a good point with the 1st Amendment compulsion factor. The bill explicitly compels members of a religious group to act, in effect, as state agents, subject to criminal prosecution for failure to comply. If I am not mistaken, no other listed group of mandatory reporters has similar protections from such state action as the 1st Amendment grants religious groups, which would seems to inform the compulsion issue.

  9. Kal Lis 2019-02-24 13:16

    Reading BCB’s analysis, I’m reminded of the cliche “hard cases make bad law.”

  10. Debbo 2019-02-24 17:02

    BCB, I truly hope this bill is enacted and upheld in court, if necessary. However, I understand your point and that of the ELCA.

    In my experience as a pastor, I felt that one of my most important responsibilities was to keep my mouth shut, and I did. However, if an individual had confidentiality informed me of child abuse taking place, I would have reported it in a heartbeat. I believe my duty to protect the little ones overrides everything else. Something about a millstone, I believe.

  11. bearcreekbat 2019-02-24 17:22

    Debbo, perhaps one possible alternative that could avoid any 1st Amendment objection would be to make each and every adult a mandatory reporter, rather than focusing on particular professions or churches.

    That would be similar to the misprison of felony statute Cory pointed out. Given the importance of preventing and stopping child abuse, the legislature could even enact a seperate statute to accompany misprison statutes that specifically identifies the reporting duties and identifies particular conduct, statements, physical obrservations, etc, that trigger a duty to report.

    To the extent the misprison statutes can properly compel people to act as agents for the state, there should be no legal problems with a child abuse mandatory reporting statute applicable to everyone. And just as religious individuals typically now must follow all generic criminal laws, they would be equally obligated to report child abuse or face criminal charges for noncompliance.

  12. Debbo 2019-02-25 00:03

    That sounds helpful BCB. Listing signs of child abuse is a very tall order. Sometimes it’s instinct as much as anything. However, I believe county agencies have something like that right now. As long as it’s clear the list is not inclusive, it’s definitely worth a try if this doesn’t work.

  13. John 2019-02-25 19:51

    My. god. Of course the clergy ought be mandatory reporters of suspected child abuse and / or neglect. Have you ignored the wanton, systemic abuse by seniors in the katholik church?

    That “church” like most others, fail policing themselves; rather they systemically hide and obfuscate the abuse. It is the state’s role to protect those who are unable to defend themselves.

    This is a “no-brainer”. Do not over-think it.

  14. jerry 2019-02-25 20:11

    Homeless people also get paid to hold the place in line as well. Only the lobbyists are then allowed to come get their paid place in line.

  15. Robin Friday 2019-02-25 20:37

    Agreeing with John’s first line: My god, of course the clergy should be mandatory reporters of child abuse. Lots of thorny problems associated with that, such as the inherent conflict with mandatory reporting vs. client confidentiality. Adult responsibility for children is not easy or free of conflict. It never is. The mental health care worker or clergy person or teacher doesn’t have to include everyone around them in on the secret–we all take confidentiality oaths. But I’m not going to tell anyone that doesn’t need to know. Yes, eventually if there’s anything to it, it will get out, but I expect confidentiality from everyone around me, and I’m not going to share it in the first place, and I’m not going to be the originator of the clap-trapping.

    People do go to their clergy for counseling, ergo, clergy are counselors.

  16. Roger Cornelius 2019-02-25 21:11

    The highest ranking Catholic Church member, Cardinal George Pell, was convicted of child sexual abuse in December, the conviction wasn’t announced until today, the trial and conviction were kept in secret.
    Cardinal Pell was the Cardinal of Australia and was on the pope’s advisory council, he was also the one time treasurer of the Catholic Church.
    Pell is expected to be sentenced in March 2019.

  17. Debbo 2019-02-25 21:52

    KOTA tv just announced:

    PIERRE, S.D. (AP) – South Dakota representatives have rejected a measure that would have added clergy to the list of mandatory reporters of child abuse.

    The chamber voted 34-33 against the bill. Democratic Rep. Erin Healy, the bill’s sponsor, says the bill would help offer protection for vulnerable children and free clergy to do the right thing.

    The bill included an exemption for clergy who suspect abuse based on a communication made to them under religious privilege rules. The current list encompasses professions including doctors, teachers and social workers.

    Republican Rep. Randy Gross, an opponent, says there are already state and federal laws that make it a crime not to report criminal activity.

    The bill may be reconsidered.

  18. Debbo 2019-02-25 21:54

    SDGOP is wrong again. Clergy need to expressly be on the mandated reporters list.

    Rep. Healy has introduced several bills for the good of SD’s children. SDGOP has voted down every single one. Their shamelessness is reprehensible.

  19. Porter Lansing 2019-02-25 22:16

    Rep. Healy is a giant among toads.

  20. jerry 2019-02-25 22:43

    Jennifer Rubin, conservative columnist at the Washington Post, correctly calls the Republican party what it is…a cult. As we see here in South Dakota, the same perils of one party power… a cult to protect the rest of the cult.

    “No evidence of an emergency doesn’t prevent him from insisting there is one. No presidential power grab is alarming enough to force him to defend his coequal branch of government. What a shabby performance.

    Republicans’ blather, evasion and lack of candor should remove any doubt that the party is now motivated by a single message: Defend whatever Trump says.

    A political party must be more than a cult. As currently constituted, the Republican Party no longer stands for constitutional democracy; as such, it should be banished from government.” Here here, Ms. Rubin. Washington Post 2/25/2019

  21. Debbo 2019-02-25 23:37

    Jennifer Rubin has been a Republican forever, I think, but resigned since Mental Midget .

    She’s right about the cult status too. It’s just creepy. In SD it’s ALEC conventions, secret caucuses, destroying everything not-GOP, including Rep. Healy’s bills for children, therefore children themselves if it comes to that. Anything to protect the cult.

  22. Debbo 2019-07-31 11:48

    That’s what I’ve been saying about the RCC. They’re not serious about busting up their own children and women sex trafficking business. What makes the news is mostly PR. It won’t stop until the $$$ stops and that comes mostly from the USA and Europe.

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