Adding Clergy to the List of Mandatory Reporters of Sexual Abuse of Children

What is a mandatory reporter?

Wisconsin law, like that in most states, requires members of certain professions to report instances where they believe a child has been abused or neglected or when a child might be at risk of such injuries. Anyone in these professions is a “mandatory reporter.”

How does the new law define “clergy” for the purpose of mandatory reporting?

The law defines clergy as those included in 765.002(1) of the statutes, the section that defines who may officiate at a marriage. The definition also includes one who is “a member of a religious order and includes brothers, ministers, monks, nuns, priest, rabbis and sisters. The term “member of a religious order is defined as a person who 1) has taken vows devoting himself or herself to religious or spiritual principles and 2) who is authorized to provide spiritual religious advice or service.”

What are clergy obligated to report?

Clergy are required to report in two ways.

First, persons who are defined as clergy must report actual or suspected sexual abuse of a child seen in the course of their professional duties.

Second, clergy are required to report in cases where they have reasonable cause to believe, based either on observation or information received, that a member of the clergy has abused a child or threatened to abuse a child.

What about clergy who function as teachers, nurses, counselors or in other professions?

If a member of the clergy also functions as a member of other professions whose members are mandatory reporters they must report any actual or suspected abuse or neglect of a child they see in the course of those professional duties. The new law applies only to information they learn in the course of their duties as clergy.

Does this new reporting requirement apply to information received in the confessional?

No. The bill explicitly exempts information obtained in the confessional.

Doesn’t the legislation to make clergy mandatory reporters threaten the First Amendment’s separation of church and state?

No. Diocesan policies in Wisconsin call for priests and other church employees to report abuse and neglect, even if not legally required to do so. As noted above, the bill does not apply to information learned in the sacrament of confession. Finally, laws in other states that include clergy as mandatory reporters have not interfered with the pastoral relationship between priests and laypeople.

Does exempting communications that take place in the seal of the confessional render mandatory reporting virtually useless, especially in cases where priests confess to their bishop?

No. Bishops do not hear confessions of priest. Anything a bishop would hear about a priest-abuser would be reported. If a victim were to talk about being abused in the confessional, the priest would assure the victim that he or she did not sin and then seek to get the victim to discuss the matter outside the seal of the confessional so it could be reported.

Statutes of Limitations

What is a statute of limitation?

Statutes of limitations provide that a criminal prosecution or civil lawsuit must occur within a specified time after the crime is committed or the injury caused. Most crimes must be prosecuted within six years of the offense. Most civil lawsuits must be brought within 2 or 3 years from the time the injured party becomes aware of the injury.

Why do such statutes exist?

Statutes of limitations exist to insure that prosecution of criminals and civil litigation occur in a timely way to improve the chances that justice is done.

Does the bill affect the statute of limitations for civil lawsuits brought by victims of sexual abuse?

Under current law, a child may bring a suit against his or her abuser up to 2 years after becoming an adult or age 20. The bill extends the statute by permitting children who suffered abuse as a minor to bring a lawsuit up to age 35, thus giving such children fifteen additional years to hold the person or persons who injured them accountable.

What about criminal prosecutions?

Under current law, abuse of a child may be prosecuted until the child turns 26 or 31 years of age, depending on the severity of the crime. The new law allows prosecutions until the child turns 45 years of age.

Creating a Cause of Action against Clergy and Religious Groups

What does the law say about suing clergy for actions of clergy who abuse children?

The law creates a specific cause of action that allows a person injured as a result of sexual contact with a member of the clergy while under the age of 18 to sue that member of the clergy for all damages caused by that sexual contact.

What does the new law say about suing a church for sexual misconduct of its clergy?

A person victimized by a clergy while the victim is under age 18 may bring an action against the religious organization that employed the offending member of the clergy for damages caused by the member of the clergy if another employee whose duties included supervising that member of the clergy knew or should have known that the offender had previously had sexual contact with a child and 1) failed to report the previous contact as per the reporting requirement and 2) failed to exercise ordinary care to prevent similar incidents from occurring.

Thus in order to be liable four elements must exist:

1. Someone in the religious organization must know or should have known of the abuse.

2. That person must be a supervisor of the offending clergy.

3. That person must fail to report the previous abuse.

4. That person must fail to prevent a repeat of that abuse.

Why was this provision necessary?

The Wisconsin Supreme Court ruled in 1995 that churches could not be sued on the basis of religious doctrines and internal decisions pertaining to the training and supervision of priests. While the Supreme Court has never said churches can’t be sued for negligence if someone knowingly put someone who abused a child back in a position where abuse could occur again, some have argued the issue is so ambiguous that victims have not come forward.

What about suits against churches for actions of other employees?

The court decisions mentioned above applied only to supervision of clergy. There is no dispute that churches may be sued for failing to supervise non-clergy under standard tort law.