‘Clergy privilege’ study shapes proposed law on protecting abused children

“The research was searching for an understanding of how courts interpreted the privilege in the past. My findings on the distortion of the privilege in clergy abuse cases was a disturbing, surprise finding. ”

BUFFALO, N.Y. — Research studying “clergy privilege” by UB School of Law Associate Professor Christine Pedigo Bartholomew heavily influenced legislation proposed by Assembly Member Monica Piga Wallace to add clergy to the list of people in jobs required to report suspicions of child abuse.

Bartholomew studied clergy privilege — the legal rule shielding confidential communications of priests and clergy — and found priests often wanted to divulge information concerning sensitive encounters about people confessing crimes, helping law enforcement find justice for crimes.

But when it came to accusations of sexual abuse against members of their fellow clergy, these priests often tried to find a way to withhold this information from law enforcement officials, citing their clergy privilege, according to Bartholomew’s study.

Bartholomew’s extensive research reviewed every opinion on clergy privilege from the early 1800s to 2016, the first time a legal scholar examined and recorded every opinion on clergy privilege.

Making clergy mandated reporters

Wallace consulted Bartholomew and used her research when developing her Child Abuse Reporting Expansion (CARE) Act. The proposed legislation would add members of the clergy to the long list of professionals who are mandated reporters, required by law to report to authorities any information about child abuse or maltreatment that they learn in the course of their work.

The obligation to report this information would take precedent over ethical guidelines and state law to maintain confidentiality about conversations with communicants.

“We realized there was a need to supplement the (recently passed) Child Victims Act,” said Bartholomew, who appeared with Wallace at the assemblywoman’s press conference announcing the legislation March 15. “And that’s what the CARE Act intends to do. It allows clergy to report abuse, freeing clergy who want to do the right thing to protect children. It also avoids potential gamesmanship. Making clergy mandatory reporters means little if they can continue to hide behind the clergy privilege.”

A 1994 graduate of the UB School of Law, Wallace relied on additional work of UB School of Law student Colleen Roberts, who now works in Wallace’s office, when developing the legislation, according to Bartholomew.

Review of over 700 cases

Bartholomew looked at more than 700 cases of clergy abuse in federal and state courts. She found that clergy members struggled with what to do when troubling information about child abuse came up in conversation with members of their congregations.

“Increasingly,” she said, “clergy were re-characterizing confidential conversations to take them out of privilege, so they could testify about them. For example, they might assert that the information arose in an offhand conversation and not the privilege-protected sanctity of confession or spiritual counseling.”

But Bartholomew found an exception. When clergy have information about another clergy member who was abusing a child, “they tended to try to push the privilege to make it much more expansive,” she said.

Clergy privilege is one of the oldest grounds in U.S. law for protecting otherwise relevant information from use in a legal proceeding.

For over a century, Bartholomew wrote in her research paper, scholars and judiciary officials have assumed a “generous protection” of this clergy privilege is necessary to “foster and encourage spiritual relationships.” The findings from Bartholomew’s study question that longstanding assumption.

After analyzing legal decisions on the issue, Bartholomew found the privilege “in decline.” Courts have lost faith in this privilege,” she wrote, “and so have clergy.”

“For decades, clergy have recast communications to ensure they fall outside testimonial protection,” intending to make what they knew through confessions or other conversations available to law enforcement officials, Bartholomew said. This willingness to cooperate, “(challenges) how essential confidentiality actually is to spiritual relationships.”

Reversal of pattern

But during her research involving clergy privilege, she found the pattern of priests and clergy looking for ways to divulge important information about crimes reversed itself when the accusations were about the sexual misconduct of their colleagues.

“Many churches raised clergy privilege objections to shield communications by alleged clergy perpetrators to their superiors and fellow priests,” Bartholomew wrote. “These cases reflect a self-interested interpretation of the privilege, where clergy claimed virtually every document between a cleric and superior was privileged.”

The proposed CARE legislation, Bartholomew said, makes it a clear-cut decision for clergy faced with such terrible knowledge: No matter the context in which the information was disclosed, they not only have the law’s permission to pass it on to authorities, but an obligation to do so.

Bartholomew said when she wrote the paper, she had “deep hopes” abuse issues were “a thing of the past.”

“This research was intended to be historical,” Bartholomew said. “The research was searching for an understanding of how courts interpreted the privilege in the past. My findings on the distortion of the privilege in clergy abuse cases was a disturbing, surprise finding.”

The proposed legislation, the professor says, would add another layer of protection for children at risk: “This would ensure that things don’t slip through the cracks in the Child Victims Act,” Bartholomew said.