MUST CLERGY REPORT ABUSE IN YOUR STATE?

by outnfree 20 Replies latest jw friends

• 

  outnfree

  In another thread, Dungbeetle had the great idea that we should become activists AT LEAST in our own states (if not in ALL the states which do not require reporting) for mandatory CLERGY child abuse reporting.
  

  Watchtower has said that the elders will be ordered to report abuse in a clergy-mandated-reporting state. So why don't we do this...someone put up a list of all the remaining states that do not have this rule, and we start working on the legislators of those states to implement this rule or some version of it, and to close the loopholes and strengthen any existing rules.

  It will solve ONE problem that I can see. Abusers present in the congregations of JW have the option of simply pulling up stakes and moving to a 'non-reporting' state; we have the power to take that away from them. Elders who disagree with that 'reporting' rule also will be deprived of that option. If we concentrate some energy on THAT, we can do a lot of people a lot of good.

  
  I promised I'd find out the law in MY state at least, so (a day late, sorry, Dung!) here is the situation in MICHIGAN: No mandatory reporting of child abuse by ”clergy”is required. SIGH!

  "Act 238 of 1975 and versions... Statute 722.638, Section 3. (1) An individual is REQUIRED to Report under this act as follows:
  (a) A physician, dentist, physician's assistant, registered dental hygienist, medical examiner, nurse, person licensed to provide emergeny medical care, audiologist, psychologist, marriage and family therapist, licensed professional counselor, certified social worker, social worker, social work technician, school administration, school counselor or teach, law enforcement officer, or regulated child care provider who has reasonable cause to suspect child abuse or neglect shall make immediately, by telephone or otherwise, an oral report, or cause an oral report to be made, of the suspected child abuse or neglect to the department. Within 72 hours after making the oral report, the reporting person shall file a written report as required in this act."

  The statute goes on to list Child Protective Services employees who are required to report, what the written report should contain, who gets copies, further action that might be required and ends on this sad note:

  "(8) For purposes of this act, the pregnancy of a child less than 12 years of age or the presence of a venereal disease in a child who is over 1 month of age but less than 12 years of age shall be reasonable cause to suspect child abuse and neglect have occurred.

  722.624 Persons permitted to report child abuse or neglect.
  Sec. 4 In addition to those persons required to report child abuse or neglect under section 3, any person, including a child, who has reasonable cause to suspect child abuse or neglect may report the matter to the department or a law enforcement agency."

  red and blue highlights and italicized comments mine.

  -----------
  So, while there IS mandatory reporting for some occupations in Michigan, Jehovah's Witness elders would NOT be required to report.

  So, my fellow Michiganians, PLEASE write to your representatives and state senators and DEMAND yet another revision of Act 238 the "Child Protection Act" be made to include clergy-mandated child abuse reporting.

  Thank you.

  Oh, and for the politically naïve among us (that would be about 98% of us ex-JWs) you can find out what district you are from at http://www.michigan.gov/emi/1,1303,7-102-116_355---,00.html and thus who your reps and senators are!

  outnfree

  It's what you learn after you know it all that counts -- John Wooden
• 

  dungbeetle

  Something that is very important to understand: An ELDER (or any person ) as such may not be required to make a report in a non-clergy mandated reporting state-- BUT if an elder is performing, in the course of his employment, any of these duties (for example if he is a teacher, lawyer, child care worker, etc etc) then he is mandated to report what he knows under this same law.

  In some states, clergy are not MANDATED to report abuse...but in some states clergy ARE NOT EXCEPTED.

  Lastly, some states such as Alabama have in their reporting statute: "Any person providing care and assistance to a child"

  Regardless of whatever wording you can find regarding CLERGY---an elder must report abuse in any state with wording like this in their stautes.

  And last but not least, some states possibly require their citizens to report felonies and even some misdemeanors , or they can be criminally and civily sanctioned. This too, in the absence of a CLERGY EXCEPTION, means this is a mandatory reporting state for elders---for everyone.

  Not as simple as it looks, hey?

  Remember, it is Watchtower that is trying to turn this issue into a CLERGY issue---Well f**k that, as Silentlambs pointed out:

  This is an issue of obedence to the superior authorites of all Jehovah's Witnesses. The 'CLERGY' issue is a red herring Watchtower is throwing out to get the rest of us off the trail --and thankfully Bill is seeing right through it and helping us nip the little trick right in the bud.

  Way to go out-n-free.
• 

  dungbeetle

  CALIFORNIA:

  A clergy member, as specified in subdivision (c) of Section
  11166. As used in this article, "clergy member" means a priest,
  minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization.

  I can't find any wording that states 'anyone prividing care or assistance' to a child, but I know it exists somewhere. This would cover any parent, or even a ministerial servant, or heck, even someone carrying the microphones in the Kingdom Hall maybe.

  There is a clergy exemption, specifically I think a clergy-penitent exemption. I do not think this Exempts an elder if, for example, a child and the child's mother reports to an elder that the father is abusing them. In that situation the Elder would be required to report any reasonable cause for suspicion, I think----unsure of the wording there.

  UADNA-US (Unseen Apostate Directorate of North America-United States)

  
• 

  DazedAndConfused

  I found a page that has all of the states listed and what their requirements are as of December of 2000. The only problem is, I can't figure out how to copy it so I can cut and paste the important information. There are 50 pages and most of it we don't need. Does anyone know how to copy from an Adobe .pdf file?
• 

  dungbeetle

  EDIT

  SELECT ALL

  CONTROL + C

  Go to your text document, place cursor

  CONTOL + V.

  It takes the whole thing, unfortunately...
• 

  Marvin Shilmer

  California [I’ve highlighted key phrases]:

  11165.7.
  (a) As used in this article, "mandated reporter" is defined as any of the following:
  ….

  (32) A clergy member, as specified in subdivision (c) of Section 11166. As used in this article, "clergy member" means a priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization.
  
  11166.
  (a) Except as provided in subdivision (c), a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make a report to the agency immediately or as soon as is practicably possible by telephone, and the mandated reporter shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident.

  11166.
  (c) (1) A clergy member who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication is not subject to subdivision (a). For the purposes of this subdivision, "penitential communication" means a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.

  According to this statute elders in California have no duty to report child abuse if they suspect it based on something they are told by a perpetrator as a confession intended to be confidential. The same thing would apply if a victim presented their victimization under the similar circumstances. However, exactly how and under what circumstances an elder comes to know of child abuse is very important here. If there is no doubt that the suspicion is learned in a circumstance other than “penitential communication” then they have a statutory duty to report.

  An example where an elder would, according to this statute, have to report would be if they learned of the abuse from a victim seeking protection from further abuse. An example where, under this statute, an elder would not have to report would be if the same victim informed the elder for sake of gaining forgiveness for a sin they thought they were guilty of. The difference in these two examples is seeking protection fro further abuse versus seeking forgiveness (even though forgiveness is not needed). Seeking protection from further abuse is not penitential communication. Seeking forgiveness with the help of a person’s minister (elder) is penitential communication.

  I want to make something clear here, though. When examining statutes for purposes of determining what is legal or illegal it is important to understand a distinction between statutory law and common law.

  Statutory law is what any of us can find by reading through legislated laws, like the one above. It is written in a State’s law code. When lawyers refer to statutory laws they do this by “chapter and verse” because they are indexed in this tidy a fashion. Statutory laws are sometimes contradicted by other statutory laws.

  Common law is how courts have applied law. It is found in court transcripts that are not always easy to find because they are not indexed like statutory law codes are. When lawyers refer to “case law” generally they are making the distinction between statutory and common law. When lawyers refer to case laws they never refer to them by chapter and verse because they are not indexed that tidily. They reference case law by the name of parties involved in the case (e.g., John Doe VS State of California). Common laws are oftentimes contradicted by how different courts have applied a single statutory law.

  The difference between the statutory and common law can be enormous since in some cases courts have found aspects of statutory law as unconstitutional and therefore have simply ignored them at the point of application. This is where lawyers enter the picture. The main difference between lawyers and the rest of us is this: they have researched statutory law and how those laws have been applied by the courts, which is what makes common law.

  The science of law is in the statutes. The art of law is how courts have applied law and therefore how they can be expected to apply law in the future. Adding to the art of practicing law is the fact that in practically any jurisdiction there is some variation in how laws are applied based on the disposition of a judge. This is why attorneys are very concerned about what judge hears what case. This means the art of practicing law sits at the crossroad of at least three things: 1) statutory law, 2) common law and 3) the disposition of judges in a given jurisdiction. Competent attorneys know which factors come to bear with the greatest influence for a given case. This is just a small part of why armchair lawyers (amateurs) can be very dangerous. They are dangerous because they can do anything from emboldening a victim into doing things that could ruin otherwise good results from the law, to discouraging a victim from doing something that is important to gaining the most favorable outcome from the law (e.g., seeking competent legal services).

  In my comments about requirements for elders in California are based strictly on statutory law. What the common law of California would require I have no idea.

  PS to Dungbeetle: I put this bit together before I saw your post about California law. This post is not intended to run over anything you’ve said.
• 

  dungbeetle

  And as I understand the law, the privilege of communication goes to the penitent, (in the case of the wife and child) not a subject of the conversation (say the accused abuser not present at the session.)

  Also, anyone MAY may a report at any time. The Elder is not REQUIRED to REPORT nor is he FORBIDDEN to report under the circumstances described in this post. Assuming I've read the statutes correctly:

  And if an elder hears of abuse from anyone under a nonpenitant circumstances, he has no immunity from criminal or civil liability should that child come to further harm.

  And one more interesting thing:and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.

  Do you see what I see? If the Watchtower did not ORDER Elders to keep child abuse allegations 'secret' then they could report it 'in the ordiary course of their duties'.

  Since 1917 Jehovah's Witnesses (Bible Students) have campaingened for all the perks and privileges that go with being a religion.

  They must assume the responsibilities as well.
• 

  DazedAndConfused

  This is what I am getting from what I read from the .pdf file:

  These state MANDATE reporting by the clergy (16):

  CT, DE, FL, IN, KY, MS, NE, NH, NJ, NM, NC, OH, OK, RI, TN, TX

  These states do not list the clergy (19):

  AL, AK, AR, CO, DC, GA, HI, IL, IA, KS, LA, MA, MI, NY, SD, VT, VA, WA, WI

  These states list the clergy but give enough leeway for not reporting (16):

  AZ, CA, ID, ME, MD, MN, MO, MT, NV, ND, OR, PA, SC, UT, WV, WY

  These are listed as of December 31, 200 by the U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

  To go and see what is written about your particular state, go to:

  * http://www.calib.com/nccanch/pubs/stats01/mandrep.pdf

  My understanding as a layperson may be a bit off so if you check your own state you may find it is written differently than what I understood it to be. And also this is from 2000. I don’t know if things have changed since then either. I will check some more.
• 

  Marvin Shilmer

  Hi, Dungbeetle

  Within that California statute, when it says a cleric “has a duty to keep those communications secret” it means State law recognizes a duty to keep penitential communication secret. This means if an elder decided to report regardless of learning of child abuse through penitential communication then he could be sued and probably the organization he represents too.

  The part of that California law that would have applicability to WTS policy is when it talks about a duty to keep communications secret “under the… practices of his or her church.” In short, this part of the statute recognizes that a religion may institute a policy where, for example, child abuse would be reported no matter how it was learned of by elders. If this happened then regardless of the “keep those communications secret” clause elders in California would have to report child abuse.

  Therefore, you are correct in your conclusion of what this statute allows for in terms of WTS policy making, but for the wrong reason. Hopefully you don’t mind me pointing this out. My fear is that too many will wander into uncharted waters for themselves on issues like this, which makes it all the more critical to keep public discussions like this as accurate as possible.
• 

  dungbeetle

  Thanks Dazed...that's a lot of work you did.

  <rolling up sleeves>

  (((((Dazed and OutnFree))))