(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.