When another instance of horrific child abuse is discovered to have gone undetected or unreported for years, it’s understandable to see an immediate public response in favor of mandatory reporting. 

This was the understandable reaction to a case involving an abusive father in a Latter-day Saint congregation in Arizona. This week, in a ruling related to the case, the Arizona Supreme Court upheld priest-penitent privilege laws. 

The simple logic of mandatory reporting seems unassailable — if reporting hasn’t happened, then let’s require it — and then we can be sure it will happen. That way, kids will be safer, right?

On that basis, one scholar notes that “American child welfare policy has singularly focused on reporting as the primary policy to keep children safe” since the 1970s. And on that basis, further efforts have been made to eliminate even narrow exceptions to the mandatory laws, including in Utah.

What many people don’t realize is that a significant problem exists with this logic: studies confirm these mandatory reporting laws are often not working as intended and may inadvertently lead to more problems for the children we are all wanting to help.

More reporting doesn’t always help children

This is the consequence hardest for people to grasp.  After 60 years of experience, recent studies have suggested that the laws have mixed results. A 2017 study published in the American Journal of Public Health concluded that “universal mandatory reporting may not be the answer for strengthening the protection of children victimized by physical abuse.”

That same study found that states requiring universal mandated reporting do not have better detection of children in danger than states without these policies. Dr. Mical Raz, a physician who has studied child welfare extensively, points to the aftermath of the Gerald Sandusky case, where the former Penn State assistant football coach had sexually abused boys for decades, and Pennsylvania legislators passed numerous statutes expanding mandatory reporting requirements. As a result, she writes, “reporting hotlines were inundated with calls, some calls were dropped or unanswered, and the child welfare agencies faced the difficult task of sifting through mountains of abuse reports.”

What was unclear is whether Pennsylvania’s children had become any safer.

Another research team found that states that expanded their mandatory reporting requirements ended up with more reports but not with more substantiated reports. The reality is that mandatory reporting increases possible, but not confirmed cases (although Utah does appear to have a better record in this regard than other states). Yet again, this invariably imposes greater burdens on the system and creates new risks of harm from mistaken claims.

Similar questions arise about well-intentioned efforts to force clergy to report anything they hear.

 Eliminating the clergy exception

Every state in the union now has a law requiring mandatory reporting of suspected child abuse or neglect, usually restricted to specific classes of people such as educators, social workers and physicians. Mandatory reporting laws in individual states started in 1962 in response to an article on battered child syndrome that captured the nation’s attention. By 1965 a model law had been adopted in 47 states. In 1974 the federal government adopted the Child Abuse Prevention and Treatment Act, requiring states to adopt mandatory reporting processes and procedures for various professionals and others as a condition of receiving benefits.

Utah was one of the first of 18 states to adopt the broadest form of law mandating that “any person” must inform the child welfare authorities of suspected abuse, neglect or circumstances that might give rise to such conduct. There is an extremely limited exception to the law for members of the clergy who receive a confession of abuse or neglect directly from the perpetrator. In other words, statements made during the sacrament of reconciliation (or confession), as it is known to Catholics, or a similar form of confession to those of other faiths. The law grants no exception if the clergy have reason to suspect abuse or neglect in any other way. 

Bills introduced in the recent session of the Utah Legislature (but not passed) sought to eliminate even this narrow exception, applicable only to clergy acting in their ministerial roles and only as to those who confess to them directly.

Arizona Supreme Court upholds Latter-day Saint priest-penitent privilege in sex abuse case
Should a member of the clergy report sex abuse of the penitent? A look inside the priest-penitent privilege

It’s fair to say this impetus to remove the exception for clergy is partially the legacy of the child molestation scandal involving Catholic priests that was so shocking to Catholics like myself and others. But as Bill Donohue of the Catholic League has recently written, that scandal involved events mostly between 1965 and 1985, and more importantly:

“(T)he reforms enacted over the past two decades have been a stunning success: the average number of credible accusations made against approximately 50,000 members of the clergy is (now) in the single digits. The fact is that most of the molesters are either dead or have been kicked out of the priesthood.”

If the motivating force behind these bills is that priests will be compelled to report their wayward brothers who admit abuse in the confessional, that problem has been dramatically reduced. For my faith, this also ignores the fact that Catholic priests are obligated by the strictest standards of their church to preserve the seal of the confessional and they would go to prison rather than reveal what they learn in confession. That result would protect no child but may deprive the community of sorely needed religious leaders.

Confession and the shaping of conscience

All communities of faith, including my own, focus on helping congregants change, grow and become better. As Wall Street Journal columnist Daniel Henninger has stated, the purpose of priest-parishioner confession “isn’t just to admit sin but to learn conscience.” An important part of this is being able to acknowledge when you’ve made a mistake, even a serious one. For Catholics, confessing one’s sins, especially a serious sin, is required at least once a year. 

Of course, mistreatment of a child, especially to the level of abuse, is clearly far worse than a mistake — and yet anything that involves even slight neglect of a child could be swept up in mandatory laws that inadvertently chill the open disclosure of both major struggles as well as smaller problems.

It’s important to note, as Raz, from the University of Rochester, reminds us, that “the overwhelming majority of calls to protective services involve concerns for neglect rather than for physical or sexual abuse.” Within a healthy faith community, mechanisms for open accountability can catch smaller problems before they become large ones — and help those who could otherwise go on to become offenders right their course.

Certainly, religious guidance is not always successful in changing behavior, but it has helped countless people over thousands of years. Clergy can be effective at encouraging perpetrators to turn themselves into legal authorities. Mandatory reporting laws that seek to eliminate priest-penitent privilege may unintentionally cause perpetrators to avoid clergy altogether. Not every perpetrator can be persuaded to turn themselves in and not every sinner becomes a saint, but some do, and some are persuaded to turn themselves in to police.

This kind of accountability and encouragement is precisely what can erode if mandatory reporting becomes absolute. Writing for Public Square Magazine, Raz cautions against the “policing culture” mandatory reporting laws can engender, involving plenty of reporting, but equal measures of suspicion, and ultimately, far less effective accountability.

 Suspicions and a hyper-reactive system

That’s because, rather than simply being held accountable for failure to report abuse and neglect, what these mandatory reporting laws effectively do is make people responsible for failure to report suspicions of such behavior, and most cases reported as suspicious are not confirmed.

This points to much of the problem with these laws: they try to do too much. These problems are complex and highly emotional; they involve multiple parties and are gut-wrenchingly difficult. But rather than focusing on reporting situations where there is clear evidence of abuse or obvious or notorious neglect, these laws often require reporting even a suspicion that something harmful is taking place, sometimes described as “reason to believe” or “information about.”

This concept might invite another kind of abuse, that of the neighbor or acquaintance with very different ideas of good parenting. Moreover, once the report is made, the apparatus of the state swings into action, searching homes, questioning friends and neighbors and undertaking activities that had they been initiated in other ways would have required probable cause and other protections against government intrusion, not merely “reason to believe.”

Once again, only a fraction of suspected cases end up being confirmed. Even so, emerging reporting norms can result in “the premature and hasty removal of children from their homes, sometimes carrying their personal belongings in trash bags and sleeping in child welfare agency offices.” An already overburdened child welfare system will respond as bureaucracies inevitably do by following processes and procedures that are often difficult to navigate for the parents and children who are caught up in them.

 Fearful families stay quiet

An awareness of these possibilities not only leads to abusers going quiet but also some struggling families, even if they could benefit from more communication and support.

Elizabeth Nolan Brown wrote in Reason last year that mandatory laws incentivize overreporting of abuse and neglect because a professional’s licensing and career can be destroyed by a failure to report. At the same time, a parent who is incorrectly labeled as possibly abusive or neglectful will at best have their life seriously disrupted and at worst lose their job, friends and custody of their children. 

Similarly, commentator Richard Wexler wrote in Youth Today in 2020 that several early advocates of mandatory reporting regret their success and that mandatory reporting laws have driven women away from seeking help for fear that they could lose their children.

Is there a better way?

All this explains why it’s important to not simply dismiss clergy exemptions as another problematic barrier on the road to protect all children. And why it remains wise public policy to defer to our vital tradition in favor of religious freedom in difficult cases of competing values. Exceptions for confession to clergy are good examples of these wise traditions and eliminating them as proposed will not help children but will only increase the divide between the religious and the secular.

The more prudent course for legislators is to direct their attention to clarifying its mandatory reporting rules where these rules make the most sense — for example, maintaining them with physicians (where studies show the highest correlation between reports and confirmed cases) — but with clearer evidentiary standards. In other situations, such as with the general citizenry, make the rule permissive enough to avoid the additional layer of fear of negative consequences that a prudent decision not to report a vague suspicion might otherwise engender.

We are a deeply divided society facing complex social problems that do not admit of easy solutions. In writing and revising our laws we need more humility about what can be achieved, more concern about unintended consequences, and greater respect for the traditions of religious liberty and freedom from governmental overreach that have been the hallmarks of our legal system.

Carl Herstein is a retired partner from a large midwestern law firm, a graduate of the University of Michigan and Yale Law School, and the recipient in 2019 of the St. Thomas More Award from the Catholic Lawyers Guild of the Diocese of Lansing, Michigan.