PlainViews

EthicsWalk addresses spiritual care as an ethical enterprise. It explores why relationships between spiritual care providers and those they serve need protection, and examines what that protection entails. PlainViews invites our readers to share their responses to each EthicsWalk column, which will be published in the following issue.

If you’d like to respond to EthicsWalk, please send a comment of no more than 100 words. You can use the e-form below (click on "hearing from you," link) or submit your commentary to the editors in the body of an e-mail (or as a Microsoft Word attachment) sent to Info@PlainViews.org. Please put the phrase “EthicsWalk” in your subject line.

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Reader Responses

Confidentiality v. Duty of Care

Anne Underwood's reflection on Confidentiality v. Duty of Care addresses an issue that has been very topical in South Australia with an Arch-Bishop being forced to resign due to community uproar over not dealing with child abuse in a transparent manner. Indeed, Anne makes it easy for us - both parties tell the chaplain, although at the same time attempting to enlist the chaplain as a silent accomplice. It is the over-whelming opinion of churches in this state that although not legally mandated to report child abuse we are morally obliged to. The hospital I work in has it as a condition of employment. clearly, the chaplain has a duty to the victim, the child, to report the abuse to the appropriate authorities.
Carl Aiken
Women's and Children's Hospital
North Adelaide, South Australia

This is a complex and emotional issue – and I had some quick thoughts. I am interested in others' responses. I serve a prison full of survivors and perpetrators of incest and other forms of sexual abuse. I believe I would intercede with honesty with both clients and explain my legal, moral and spiritual duty to protect them both from themselves. Keeping quiet and honoring the confidentiality may lead to not only further sexual abuse but also to the continued spiritual abuse. The child needs an advocate. In her case, she is a minor and a victim. She isn't of age to understand her victim status and make those kinds of decisions for herself. I have too many women here whose father and grandfather are the same person – she is not to young to be of child bearing age – another factor. The damage this does to their understanding of a God who would not protect them, help them, heal them, leads them to the escaping behaviors that bring them to this place. Unanswered questions: Just because Mom is incarcerated certainly doesn't mean she doesn't care. Can daughter talk to mom? Is there another caring, responsible adult (even older sibling) who could care for the girl? She will need counseling. Can there be follow up with the family? Reporting and ditching the family is abusive, too. Theologically, standing with the girl and the father as they begin to untangle this over the long haul would be my choice – both may need separate advocates. In my capacity here, I share with the women that I hold all things in confidence unless I hear about immanent danger to self, others or escape. Abuse that is occurring to a child is immanent danger to others (even if it is not directly from them). My rules of employment also apply – which would mean reporting it. Creativity might encourage the young girl to report it to someone else (as an "out") by getting a Mental Health professional or another staff involved to see if she will share the information. I think my spiritual duty to the child to report her abuse is as important, if not more so, than the confidentiality. Mind you, I would not violate it without telling in advance what I will do so she can be prepared. To hear the man's confession without the accompanying repentance (active moving through) is tantamount to spiritual enabling.
Lynn Litchfield
Chaplain
Fluvanna Correctional Center for Women
Troy, Virginia

Thanks for your article, Anne. I'm a bit perplexed about "reporting" vs. "court related testimony". I understand the difference, but this is what my 1990 copy of Texas Law for Texas Clergy (published by The Texas Young Lawyers Association) states: "Rule 505 of the Texas Rules of Criminal Evidence now governs privileged communications for the clergy in criminal matters. Rule 505 of the Criminal Rules of Evidence is essentially the same as Civil Rule 505 with one area worthy of special attention. The Texas Rules of Criminal Evidence became effective September 1, 1986, and it appears that the priest-penitent privilege will not be recognized in situations of child abuse or neglect. According to Texas Family Code, Section 34.04, no privileges apply in a proceeding regarding child abuse or neglect. Since it is a crime to fail to report evidence of child abuse and neglect, (TFC, Section 34.07), it is possible that a clergyman could be
forced to reveal confidential communications in those situations involving children being abused or neglected by adults." This sounds to me as if Texas considers the failure to report child abuse, even before trial testimony, is criminal. Would the state facility in which I practice ministry be held liable if I failed to report child abuse?
Thanks again!
Bobby Hendricks, M.Div., BCC
Director, Chaplaincy Services
San Antonio State School
San Antonio, Texas

From across the pond in the UK –
When two ethical principles clash they are like tectonic plates which create shock waves which may muddy the clarity of our thinking. The chaplain (a member of hospital personnel) has been made aware of serious harm being done to a vulnerable person. The only course of action is to protect the child and prevent further abuse and this is supported by the hospital's policy. No recourse to confidentiality can override this. The father's cry of "don't tell no-one else" is an attempt to seduce the chaplain into becoming party to the abuse. From an English perspective such a problem arises because of an over reliance on "principles" – ask instead what the "virtuous" chaplain should do?
Rev'd Mark Godson
Shropshire, England

Confidentiality v. Duty of Care

Scene 1: Sandy, age 8, is admitted for surgery. Over a puzzle Sandy says: “Chaplain, please tell God I’m sorry for how I treat my father… I am bad. I don’t mean to be and I don’t know what I do, but he says I make him so hot he can’t help himself. Then he does things that hurt my private spots. Sometimes I cry. Afterwards he feels bad too. He cries and then buys me a present. I’m afraid God hates me for liking presents so much that I make my father hurt me to get them. Will you tell God I’m sorry? Please don’t tell anyone but God.”

Scene 2: You find Sandy’s father, Fred, in the surgery waiting room. You sit down. He tells you he’s “ alone in his worry.” Sandy’s mother is incarcerated. Two older siblings are emancipated and Fred doesn’t allow Sandy to see them: “bad influences – don’t respect my authority or the Lord’s.” Fred leans close and says, “Chaplain, maybe you can help. Sandy and I do things that’s probably not right. Mind you, Sandy likes it and I always get Sandy something special afterwards, but the Bible says what we do should only happen with my wife.” You ask for more specifics and then affirm that the behavior is prohibited by scripture -- and state law, and is harmful to Sandy. Fred cries and says “pray with me to stop but don’t tell no one else. I can do this on my own with the Lord and you.”

Is this an ethical dilemma? Strictly speaking, yes. The duty of confidentially conflicts with the duty of care (here, protecting a vulnerable child). Clergy confidentiality, many believe, encourages people who otherwise would not, to confess their sins to God in the presence of clergy who will offer spiritual guidance to foster healing and reconciliation. Rules of testimonial evidence, statutory and case law in the United States recognize and honor clergy confidentiality. Indeed, for some, this is a cornerstone of the religious freedom enshrined in the U.S. Constitution.

The duty of confidentiality is challenged by laws mandating reports of suspected child abuse. Arguably, a duty of care ethic requires clergy to examine the primacy of confidentiality in circumstances involving God’s most vulnerable persons, children (and in some instances, incapacitated adults).

What would you do here?

Note:
1. Both communications came in your role as chaplain.
2. No third parties were present either time.
3. Each communicator asks for secrecy.
4. Each requests intercessory prayer and assumes prayer and your involvement are “enough.”
5. In your state, clergy are permissive but not mandated reporters of child abuse; and, clergy privilege permits exclusion of testimony for information obtained during the course of “spiritual counseling or confession.” [No state’s privilege rule
specifically addresses child abuse reporting – privileges apply only to court related testimony.]
6. The hospital requires all personnel to report suspected child abuse to the state.
7. Would your denominational polity influence your decision?

You’re invited to share your discernment with Plainviews for dialogue with other readers and with me.

Anne Underwood has an undergraduate degree in religious studies, a master’s degree in rural sociology and a mid-life law degree obtained after working over a decade as a college administrator. She has mediated for the Maine family courts since 1983. Currently she serves as an advisor to the ethics commissions of ACPE, APC, the CCAR (Central Conference of American Rabbis), and NAJC, and consults with a variety of Protestant faith communities on issues of power, fair process, and congregational conflict management. Her articles on mediation and restorative justice have appeared in the ACPE News, The APC News and on the ACPE web site. Articles on clergy accountability and judicatory processes are published by the Alban Institute and The Journal on Religion and Abuse. A chapter, “Clergy Sexual Misconduct: A Justice Issue,” appears in Body and Soul: Rethinking Sexuality as Justice-Love, Marvin Ellison and Sylvia Thorson-Smith, editors, The Pilgrim Press, 2003.