California lawmakers are proposing a change in the state’s mandated-reporters law that would require pastors to notify police if they believe parents are failing to provide enough emotional “warmth” for their children.
Or “normal living experiences.”
The law currently requires teachers and others who have an ongoing relationship with families to contact authorities with suspicions of child abuse.
The proposal has caught the attention of the Pacific Justice Institute, which has launched a petition to reveal opposition to the plan.
The organization is targeting Senate Bill 360, by Sen. Jerry Hill, a Democrat, which would classify, without exception, clergy as mandated reporters.
It would trigger criminal prosecution “if they do not immediately report suspected child abuse or neglect.”
However, Pacific Justice lawyer Kevin Snider pointed out two difficulties. Priests in the Roman Catholic Church can be excommunicated if they reveal confessions. And many other churches have similar standards for their clergy.
Snider also noted that the state’s existing definitions for “emotional abuse” are so inclusive “that a pastor or youth pastor would be required to tell the government if parents seeking counsel are suspected of so much as failing to provide ‘warmth,’ ‘attention,’ or ‘normal living experiences’ for their children or teens.”
“Tragically, the children most at risk of experiencing sexual abuse are those already under California’s supervision as foster children. Instead of addressing its own abject failure to protect those directly under its care, the state is rolling back longstanding legal privileges in a way that could actually make the problem worse,” he said.
“This legislation is not just misguided, it is blatantly unconstitutional,” said Brad Dacus, president of Pacific Justice Institute. “Imagine the outcry if the legislature tried to do away with attorney-client privilege. The clergy-penitent privilege stands on the same footing and is an essential component of restorative justice.”
The state senate’s Public Safety Committee already has approved the bill on a 5-0 vote, which sent it to the Senate Appropriations Committee.
In a letter to Hill, Snider wrote: “Senate Bill 360 places California’s clergy in peril of violating the sacred trust that their faith requires or face prosecution. A tragic irony arises when ministers find themselves in a position of damned if they do and damned if they don’t. In sum, the bill cannot be reconciled with the First Amendment, for the guarantee of the free exercise of religion will not allow clerics to be gored by one or the other horns of that dilemma.”
The letter explained that ordained youth pastors “frequently counsel teenagers, or their parents, who seek help to navigate family conflicts.”
“This could include a mother and 13-year-old daughter in a fiery argument over the amount of makeup or length of a skirt,” he said. “Or the young teenage boy who finds himself distraught because his parents will not support his decision to come out as gay. Ordinarily, a pastor listens to confession of sin, explains the application of religious texts, provides counsel and comfort, and gives direction on how to make amends.
“Should the clergy-penitent privilege disappear from the legal landscape, young ministers must ‘immediately’ determine if the level of family tension falls within the government’s broad and amorphous meaning of emotional abuse,” the letter said.
“In removing the clergy-penitent privilege, the bill mandates a betrayal of confidence in violation of a traditional religious duty held by clergy. In order to protect themselves, parishioners, and the penitent, preachers will say, ‘Don’t come to us with your family problems.'”
The state already has infringed on religious rights by banning the counseling of teens against same-sex inclinations and ordering pro-life crisis pregnancy centers to promote abortion. The counseling law is in the courts, and experts say it is unlikely to stand. The abortion law already has been rejected by the U.S. Supreme Court.
The letter explained the U.S. Supreme Court has ruled that lawsuits “cannot be maintained which would require the disclosure of the confidences of a confessional.”
“The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust.”
The First Amendment also “compels” that privilege, it argued.
“Consider this,” the letter continued, “Government entities and officials define abuse and neglect with such breadth that the ordinary turbulence of family struggles … The Legislative Analyst’s Office wrote that under California law, ‘Emotional abuse is nonphysical mistreatment, resulted in disturbed behavior by the child, such as severe withdrawal or hyperactivity’. … The Los Angeles Department of Children and Family Services defines emotional abuse as ‘failure to provide warmth, attention, supervision, normal living experiences.”