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Proposed laws in D.C. and Va. would require clergy to report sexual abuse

D.C. Attorney General Karl A. Racine.
D.C. Attorney General Karl A. Racine. (Michael Robinson Chavez/The Washington Post)
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In response to recent Catholic Church clergy sex abuse scandals, lawmakers in the District and Virginia say they will soon propose legislation that adds clergy to the list of people mandated by law to report child abuse or neglect.

Both efforts hit at the hot-button intersection of child protection and religious liberty, but lawmakers are expected to give them an open reception at a time when recent sexual abuse scandals in churches and others involving athletes have prompted conversation about broadening legal responsibility to extend beyond positions such as teachers and doctors.

The ideas under consideration by D.C. Attorney General Karl Racine include not exempting confidential conversations for any mandatory reporters, possibly including those that occur in the Catholic Church’s confessional. Texas, West Virginia and a few other states do not exclude the confessional in mandatory reporting laws, but it has been a stumbling block in many other places.

Under D.C. law, anyone 18 or over who knows or has reason to believe that a child under 16 is a victim of sexual abuse is required to report it to civil officials. But the requirements of mandated reporters are more extensive, and Racine is considering taking them much further.

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An eight-page presentation of key goals shared in recent weeks by Racine’s office with some D.C. faith groups proposed expanding the law to say mandated reporters must report suspected abuse, even if they don’t know the child themselves, or even if the child is now an adult. It also suggested requiring mandated reporters to tell their own boards of directors so their institutions become responsible as well; increases the penalties for people who fail to report and requests funding for training so mandatory reporters understand what that term obliges.

A few weeks after circulating the presentation, which was obtained by The Washington Post, Racine’s office emailed some faith leaders to say the proposal was still a work in process and that a final version would be introduced for consideration by the D.C. Council early in 2019.

“Everything is still in the conversation,” Elizabeth Wilkins, Racine’s senior counsel for policy, told The Post when asked whether confidential conversations could still be included. “We think this is an urgent issue. If there are weaknesses [in the current mandatory reporting law], we want to fix them.”

Virginia’s narrower proposal, which will be considered by the state legislature after the session begins Jan. 9, is sponsored by Sen. Janet D. Howell (Fairfax County) and delegates Karrie K. Delaney (Fairfax County) and Wendy Gooditis (Clarke), all Democrats.

As written, it will simply add clergy to the list of “persons who are required to report suspected” abuse, with an exception for when a faith’s doctrine requires the report “to be kept confidential.” The carve-out, lawmakers said, was added specifically to protect the confessional – a sacrament in Catholic doctrine.

Twenty-eight states make clergy mandatory reporters, according to the Children’s Bureau, an arm of the Department of Health and Human Services that works to combat child abuse. Those measures vary widely on allowances given religious leaders – in particular whether their confidential conversations are protected.

Efforts to craft such proposals veer into questions of whether the constitutional privileges religion gets in America extend to clerics’ conversations with parishioners.

Experts and lawmakers who have followed this issue for years say the climate has changed. Recent child sex abuse scandals, including those involving athletes and Catholic clergy, and the overall decrease in power of and deference towards religious institutions, are making it harder for faith groups who want to limit civil oversight.

In both Virginia and the District, some faith groups have had the chance to weigh in with concerns, and most are generally supportive of new requirements.

The Catholic Church’s primary issue is protecting the confidentiality of the confessional. Some other, non-Catholic faith leaders have expressed concern about the religious liberty of Catholics, and have suggested society will lose a resource if people – victims or perpetrators – don’t know for sure whether they can speak candidly to a cleric without fear of criminal repercussions.

Under D.C. law, anyone 18 or over who knows, or has reason to believe, that a child under 16 is a victim of sexual abuse. is required to report it to civil officials, The requirements for mandatory reporters are more extensive.

Howell has been unsuccessfully proposing similar measures since 2003. She called the issue a “major brawl” in the past, with Catholic and Baptist organizations opposing such measures – for either the protection of the confessional or because, she said in the case of Baptist clergy, they felt it was a secular intrusion and “they answered only to God.”

Howell thinks the new measure has a good chance of passing this upcoming session.

“Between the investigations going on [of the Catholic Church] with attorneys general and the outrage of the public about what’s happened, the times have changed a lot,” she said.

Jeff Caruso, director of the Virginia Catholic Conference, which lobbies for the Church in Richmond, said the Conference is in favor of adding clergy to the list of mandated reporters, so long as the clergy-penitent relationship is protected. The state’s two dioceses have a similar requirement, he said.

The U.S. Conference of Catholic Bishops in 2005 approved a document requiring allegations of youth abuse be reported to civil authorities, but church lawyers and lobbyists have continued behind the scenes to advocate against more civil requirements, said Marci Hamilton, a church-state lawyer at the University of Pennsylvania.

The issue comes up, Hamiltion said, if clergy wind up in court and are accused of failing to report. Then they may employ arguments about the need to protect the priest-penitent relationship, or they’ll cite a state law, or the First Amendment. “There’s almost always a loophole,” she said. Hamilton, who wrote a book about legal tensions over how far religious exemptions should go, said Catholic and Mormon officials are the leaders in pushing more autonomy for faith groups.

The archdiocese of Washington, with two top cardinals having lost their positions this year amid complaints of abuse scandal and mismanagement, declined to comment becasue no final bill has been made public. But spokesman Ed McFadden denied accounts by other city faith leaders that the Catholic Church has had complaints about Racine’s presentation. .

“It would not be accurate to state that the Archdiocese or our clergy are ‘fighting it’ as we don’t know what the actual proposal or legislative language entails,” McFadden said in an email to The Post. In a later email, he said that the archdiocese “looks forward” to reviewing future drafts and sharing feedback “on what we hope will be a collaborative process given the Archdiocese’s more than 20-year record in implementing strong child protection and mandatory reporting policies.”

Some Jewish groups in the District also talked about the need to protect privileged conversations while seeking justice for victims.

Officials with the Jewish Community Relations Council of Greater Washington said the measure seeks “a very difficult balance,” said Ron Halber, the council’s leader. “The Jewish community is fully supportive of this legislation . . . And most faith groups feel the same way. But in some traditions there are privileged communications that take place between religious authorities and parishioners. We want to make sure there’s nothing blocking free exercise.”

Rabbi Shmuel Herzfeld, a leader in the region’s Modern Orthodox movement, said he was taking a wait-and-see attitude but that “turning clergy into policemen is very dangerous.” He also said the requirement that clerics pass on unproven suspicions to their institution’s board, and ti be required to report abuse that had nothing to do with one’s own institution – for example something the cleric heard, from another time or place – made little sense.

“There is real value in someone feeling they can speak to clergy in privilege in terms of trying to improve as human beings; we want to help people grow,” said Herzfeld, noting he wasn’t talking about active situations where abuse was still happening.

But what if clergy don’t report on past offenses? How do clergy know abusers won’t abuse again?

“Children and families and society work better when they’re healthy. If we try to hurt how religious societies function, it will hurt children,” Herzfeld said.

Staff reporter Fenit Nirappil contributed to this report.