© Springer Science+Business Media Dordrecht 2015Ben Mathews and Donald C. Bross (eds.)Mandatory Reporting Laws and the Identification of Severe Child Abuse and NeglectChild MaltreatmentContemporary Issues in Research and Policy410.1007/978-94-017-9685-9_14
14. Mandatory Reporting of Child Sexual Abuse by Religious Leaders
Faculty of Law, University of Sydney, Sydney, NSW, Australia
KeywordsChild sexual abuseClergyReportingDecision-makingMandatory reportingChild protectionReligion and child abuse
In recent years, an increasing amount of attention has been given to the problem of child sexual abuse in church communities. Churches are very vulnerable to this problem since they have an extensive involvement in work with children and young people. There are Sunday Schools, youth groups, church-affiliated boys and girls’ associations, holiday clubs, church camps and other such activities. Other faith communities also involve children in different ways in the life of their congregations. Faith-based organisations have also been very involved in caring for children in institutional settings such as boarding schools and – in the past – children’s homes.
It should not be surprising that faith communities contain within their ranks those who otherwise have a predisposition towards the sexual abuse of children. The tendency to sexually abuse children crosses all sectors of the population and includes people with a great variety of beliefs – and no belief. It is not surprising then that religious communities have a problem with child sexual abuse. It would be surprising if they did not.
Clergy are included in many jurisdictions as one of the categories of professional groups that are required to report child sexual abuse. Michigan provides an example. It has mandated members of the clergy to report among 22 listed categories of professional who might have contact with children in the course of their professional work (Mich. Comp. Laws. Ann. §722.623). It exempts a member of the clergy who receives a legally privileged communication in his or her professional character in a confession or similarly confidential context (Mich. Comp. Laws. Ann. §722.631). However, the inclusion of clergy among the categories of professional mandatory reporters is far from universal either in North America or elsewhere (Goldenberg 2013).
This chapter considers the arguments for requiring clergy and other such religious leaders to report concerns about the sexual abuse of children and the different options for so doing. It sets the debate within the context of the seemingly high level of child sexual abuse within certain faith communities and the cultural impediments to reporting of abuse which are specific to certain religious groups.
The Context for Considering Mandatory Reporting
While sex offenders are found in all denominations and in people of many different theological persuasions (John Jay College 2011, p. 21; Parkinson 1997), it needs to be acknowledged that the problem of child sexual abuse is not evenly spread across all faith communities. All the evidence suggests that the Catholic Church has experienced a disproportionate problem in relation to child sexual abuse. Around the western world, case after case has emerged of Catholic priests and male members of religious orders being charged with sex offences against children. Perhaps for this reason, almost all of the research on child sexual abuse in churches has focused on abuse by Catholic priests and members of religious orders (Dale and Alpert 2007; Falkenhain et al. 1999; Farrell and Taylor 2000; Haywood et al. 1996a, b; Isely et al. 2008; John Jay College 2004; Langevin et al. 2000; Rossetti 1995; Smith et al. 2008; Terry 2008; Terry and Ackerman 2008).
The most comprehensive account of child sexual abuse in the US Catholic Church has come from the John Jay College of Criminal Justice. It found that 4 % of all priests who had served in the United States from 1950 to 2002 had allegations of child sexual abuse made against them (John Jay College 2004; Terry 2008). Most victims were male and older in age compared to victims in the general population (Terry and Ackerman 2008). Some evidence in Australia appears to indicate a higher level of offending than this. Prof. Des Cahill identified 378 priests who graduated from a particular seminary in Melbourne and who were ordained between 1940 and 1966. Of these, 14 (3.7 %) were convicted of sex offences against children and another four were acknowledged to have abused children after their deaths. That is, 18 priests or 4.76 % of the total who were ordained between those years sexually abused children. Taking a later cohort of seminarians, the 74 priests who were ordained between 1968 and 1971 from that seminary, 4 (5.41 %) had been convicted of sex offences against children (Cahill 2012). Another 20 had resigned the priesthood, and so as a proportion of those priests ordained in those three periods who had long-term careers in the priesthood, the percentage is rather higher.
The proportion of Catholic priests who had been convicted in criminal trials in the Cahill studies is very much greater than in the John Jay study. Only 3 % of all priests against whom allegations were made were convicted in the period of that study (John Jay College 2004). Arguably, the level of convictions of Catholic priests and religious in Australia is rather higher than for men in the general population, although reliable baseline data on levels of offending in the general population is hard to find (Parkinson 2013).
Any data on proportions of clergy who have abused children is, in any event, likely to be an underestimate because so many victims do not disclose abuse at all or do so decades after the events. Australian research indicates that the levels of disclosure of abuse are closely correlated with media exposure of the issue as a consequence of high-profile cases or public inquiries (Parkinson et al. 2010).
In comparison with the Catholic Church, prosecutions of clergy from other Christian traditions for child sexual abuse are much less common (Keenan 2012, p. 11). A study of child sexual abuse in the Anglican Church of Australia provides some evidence of levels of reported abuse in a Protestant faith community (Parkinson et al. 2009, 2010, 2012). The study was based on church files of all allegations of child sexual abuse by ministers, youth workers or other pastoral staff in parish settings in which the allegation has been made since 1990. Seventeen out of 23 dioceses in Australia took part in the study. Three rural dioceses declined to participate. The remaining 3 dioceses did agree to participate but were omitted from the study because they had no cases falling within the study criteria. The 6 dioceses that did not take part were all dioceses with comparatively small numbers of clergy in regional and rural areas of Australia.
This study was not a census of all reported cases of child sexual abuse within the Anglican Church but covered the great majority of the known cases that were within scope in the 17 dioceses that participated in the study. On a rough estimate, the proportion of Anglican clergy accused of sexual abuse in parish settings appears to be well below 1 % (Parkinson et al. 2012).
The statistics from the Victoria Police (2012), giving evidence to a Parliamentary Inquiry, also provide some evidence of the incidence of child sexual abuse in the Catholic Church compared with other faith communities. The Police identified all criminal convictions for sexual abuse of minors in Victoria between January 1956 and June 2012 involving members of religious organisations. Three hundred and seventy were victims of abuse in the Catholic Church. There were 37 victims in the Anglican Church, 36 in relation to the Salvation Army and 18 involving Judaism. While the Catholic Church has the largest number of adherents in Australia and priests and religious brothers often worked in boarding schools and children’s homes which offered particular opportunities for abuse, the rate of convictions of Catholic Church personnel does seem to be strikingly out of proportion with the size of this faith community compared with other faith communities (Parkinson 2013).
The Catholic Church has not only been the major focus of attention regarding child sexual abuse in faith communities because of the apparently high incidence of such abuse. It has attracted attention also because of widespread allegations that it has covered up these offences and has otherwise failed to respond appropriately to victims. In Australia, a national Royal Commission is currently examining these issues and a Parliamentary Inquiry in the State of Victoria reported on the subject in November 2013 (Parliament of Victoria 2013). The pattern of cover-up has been an international one (Robertson 2010). In the United States, awareness of the extent of that cover-up is generally traced to reports in the Boston Globe newspaper in 2002 concerning the Boston Archdiocese (Smith et al. 2008; Plante and McChesney 2011). In Ireland, the reports of the Ryan and Murphy Commissions, together with other inquiries, also lifted the lid on much that had previously been hidden (Ryan Report 2009; Murphy Report – Dublin 2009; Murphy Report – Cloyne 2010). There have also been similar accounts in inquiries from other countries (Robertson 2010).
The Murphy Report into the Archdiocese of Dublin (Murphy Report – Dublin 2009, pp. 3–4) summarised its findings on the history of cover-up as follows:
The volume of revelations of child sexual abuse by clergy over the past 35 years or so has been described by a Church source as a “tsunami” of sexual abuse. He went on to describe the “tsunami” as “an earthquake deep beneath the surface hidden from view”. The clear implication of that statement is that the Church, in common with the general public, was somehow taken by surprise by the volume of the revelations. Officials of the Archdiocese of Dublin and other Church authorities have repeatedly claimed to have been, prior to the late 1990s, on ‘a learning curve’ in relation to the matter. Having completed its investigation, the Commission does not accept the truth of such claims and assertions.
The Dublin Archdiocese’s pre-occupations in dealing with cases of child sexual abuse, at least until the mid 1990s, were the maintenance of secrecy, the avoidance of scandal, the protection of the reputation of the Church, and the preservation of its assets. All other considerations, including the welfare of children and justice for victims, were subordinated to these priorities.
While the main focus has been on the Catholic Church, no church or other organisation with a significant work among children is free from reproach. In Australia, for example, there have been inquiries established by the Anglican Church into its past failings in dealing appropriately with child sexual abuse cases (Kohl and Crowley 1998; O’Callaghan and Briggs 2003; Olsson, and Chung 2004). There have also been significant issues in Orthodox Jewish communities in the United States (Resnicoff 2012).
Religious Barriers to Reporting
A major reason for having mandatory reporting laws is to overcome religious barriers to reporting that place at risk the well-being of children (Smith 1994) and which cannot be justified in the name of religious freedom.
Barriers to Reporting in Catholicism
The Catholic Church around the world is far from a monolithic institution with uniform policies and approaches to issues. In different countries and at different times, the Catholic Bishops Conferences have sought to deal with the issue of clerical sexual abuse in ways that have involved more or less transparency and cooperation with civil authorities. In Australia, for example, a protocol published by the Catholic Bishops Conference and leaders of religious orders in 1996 concerning the Church’s responses to sexual abuse made it clear that it was the policy of the Church to cooperate with the police on such matters and to encourage those who complained of criminal misconduct by clergy and religious to make a formal report to the police (Towards Healing 1996). Since 2010 there has been a formal requirement in Towards Healing to notify the police of the complaint concerning the alleged offender even if the complainant declines to go to the police (Towards Healing 2010). Section 37.4 of Towards Healing states:
In the case of an alleged criminal offence, if the complainant does not want to take the matter to the police, all church personnel should nonetheless pass details of the complaint to the Director of Professional Standards, who should provide information to the police other than giving those details that could lead to the identification of the complainant.
This is to ensure transparency and also because the police may be able to use the intelligence gained if other complaints emerge against the same alleged offender. One of the other obligations in Towards Healing is that no victim should be bound by any pledge of secrecy in relation to their account of the abuse.
However, as the Irish experience demonstrates, such a policy has not always had the support of the Catholic leadership in Rome. At about the same time as Towards Healing was being developed in Australia, the Irish bishops developed a policy which included mandatory reporting to the police of all credible reports of abuse. However, they were rebuked for so doing by the Vatican. On January 31, 1997, the Irish apostolic nuncio wrote to the Irish bishops, conveying the position of the Congregation for Clergy, that the policy of mandatory reporting ‘gives rise to serious reservations of both a moral and a canonical nature’. The letter also instructed that the procedures established by the Code of Canon Law must be ‘meticulously followed’ (Storero 1997).
Evidence has also emerged of a view, attributed to Pope John Paul II, that bishops should protect priests from the authorities. In 2001, Bishop Pierre Pican of Bayeux was given a 3-month suspended prison sentence for not reporting Fr René Bissey, who had been sentenced to 18 years in prison in 2000 for sex offences against children. Cardinal Castrillón Hoyos, the Prefect of the Congregation for the Clergy, wrote to the Bishop, congratulating him on not denouncing a priest to the civil authorities. He was said to have acted wisely in preferring to go to prison rather than denounce his priest-son. Cardinal Hoyos advanced a theological reason for this position. He explained that the relationship between priests and their bishop is not professional but sacramental and forges very special bonds of spiritual paternity. He drew the analogy with rules of law in various countries which excused one close relative from testifying against another.
The letter concluded that in order to ‘encourage brothers in the episcopate in this delicate matter’, a copy of the letter would be forwarded to all the conferences of bishops. The Cardinal said at a conference in 2010 that he wrote the letter after consulting Pope John Paul II and that it was the Pope who authorised him to send this letter to all the bishops. It appears that the bishop indicated at his trial that the admission of guilt by the priest had not been in the confessional (Heneghan 2010a, b; Robertson 2010, para ).
Barriers to Reporting in Orthodox Judaism
There are also barriers to reporting as a consequence of some interpretations of the Jewish law. There is a view, held particularly by Haredi Jews, that Jews should not denounce fellow members of the community to secular authorities for wrongdoing (Resnicoff 2012) and that this includes not reporting the sexual abuse of children. This is because of the doctrine of mesira.
According to the leading twelfth-century rabbi Mosheh ben Maimon (Maimonides), mesira requires that Jews should always protect each other from the Gentile governments, and informants should be punished (Maimonides 1997, pp. 8, 9–10):
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