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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.

We look forward to hearing from you.

The Conversation Continues – Confidentiality v. Duty of Care

Very briefly, I had always been taught that priest-penitent confidentiality does not apply if the "confession" involves a crime that is either ongoing or in the future. "If someone says, Rabbi, I killed Fred last week." The principle applies. If the same person said "Rabbi, I'm going to kill Fred next week," the confidentiality dissolves and I would have a legal (both Jewishly legal and generally legal) obligation to report. The same would apply if someone said, "Rabbi, I am a serial killer. I killed Fred last week and I don't know yet who it will be next week." The same obligation to report inheres. These definitions work for the congregational clergy and/or chaplains who are independent. The ethical "sticky wicket," as it were, is in a situation when the chaplain is employed by an institution. There, the question is: report to whom? Is it sufficient notification for the chaplain to report to his/her supervisor. If so, what is the obligation when it goes no further and is never reported to the authorities? Does the chaplain go over the head of the supervisor? Is he/she required to do so? What is the potential professional downside?
Rabbi David Wertman
Congregation Hesed shel Emet
Ethics Committee member, Pottstown Memorial Medical Center
Pottstown, PA

I am a protestant chaplain. My denomination would not prevent me from reporting the abuse of Sandy by her father. The most important issue is to protect the child from further abuse. As chaplain, I would stay engaged with both Sandy and her father to help facilitate reconciliation. However, that may not happen until Sandy is much older and able to understand the nature of the abuse her father inflicted upon her. The case also states that reporting is mandated by the hospital. Any chaplain who had a conflict with that policy shouldn't be serving as chaplain at that facility.
Gary W. Bauch, BCC
Lutheran Church - Missouri Synod
Chaplain at Monroe Community Hospital and St. Mary's Hospital
Rochester, NY

Anne's Response to our Readers about Confidentiality v. Duty of Care

The last column invited spiritual care providers to examine assumptions about confidentiality and apply them to a case of child abuse. Good dialogue commenced. Please continue to raise issues.

The respondent who noted “Anne made it easy for us – both parties tell the chaplain,” unlocked the reporting “dilemma.” Sandy, the abused eight year old, independently provided sufficient information to trigger a report based on “reasonable cause to know or suspect.” [1]

Concerns exist for confidentiality and the confessional nature of the father’s communication. Neither pertain to Sandy’s. Sandy and the chaplain did not engage in a “discussion for spiritual consultation, advice or confession.” [2] Sandy committed no sin to “confess.” [3] Sandy is the child victim of an adult sex offender. Sandy asks for secrecy which itself is different from confidentiality. No ethical principle, religious or civil law instructs adults to hold a child’s secrets confidential to the detriment of the child (or society). As one respondent noted, clergy confidentiality here may be complicity in the furtherance of sexual abuse.

The same respondent speculated that such complicity is spiritual abuse. “Why did the chaplain know I was being hurt and do nothing?” “Where was God in that chaplain’s action?” Nothing in the situation or story of Sandy would excuse the chaplain from the employing hospital’s policy of reporting suspected abuse. This is true regardless of subsequent conversation with the father.

The father’s conversation raises two issues: (1) was the communication a “confession?” and (2) would the circumstances invoke religious privilege in a court? A confession, in some religious traditions, would bar reporting or alerting someone else to. [4]

For legal purposes, the statement is a confession (an admission contrary to self interest about a crime committed). Given its circumstances, his attorney might successfully invoke religious privilege to bar testimony from the chaplain. The chaplain would report the abuse but most likely not be part of state proceedings. The same outcome could result even absent the conversation with Sandy.

Every state has reporting mandates because well intentioned people hear stories like Sandy’s and think (1) they can fix the family, (2) find someone other than the state to intervene, (3) the actions constitute sin within a family, not a crime implicating society; and, (4) with “reconciliation,” all will heal. These thoughts run through several reader responses.

No state’s system for addressing child abuse is without tremendous problems. Most professionals are loath to engage it. However, reporting is a moral and usually legal imperative. Only the State can safeguard the specific child (and others potentially) from a particular abuser. Independent helping professionals arguably often do better nurturing victims than do state providers, but only the State has the authority to investigate and hold accountable those who abuse children.

Note: Particular state statutes and case law are not applicable to our general discussions. Each is binding only in its own jurisdiction. [5] State legislatures create and modify statutes annually. Always check the current version. “Case law” may set precedent for its state and offer non-binding wisdom for others to consider, but is subject to change by the same judicial processes which created it. Lawyers: love or loath, but do consult them!

[1] “Reasonable cause to believe or suspect” (or “know,” “suspect” in some jurisdictions) is the standard by which information triggers a report from mandated or permissive reporters of child abuse to the designated state agency. Heightened awareness of the impact of neglect and abuse on children, families and society has moved many commentators and practitioners to advise erring on the side of reporting when in doubt. Most jurisdictions now provide civil immunity for reporters who act in good faith, without malice, on information which proves inconclusive or is discredited through a state’s subsequent investigation. Check your state’s statutes for reporting requirements, reporting processes and immunity provisions.
[2] This wording adapts common threads for state definitions of one element by which a communication attains religious (clergy) privilege status.
[3] No child possesses the requisite autonomy, intent, or understanding to “sin” sexually with an adult.
[4] In Orthodox, Roman and Anglican Catholicism this would probably not be a sacramental confession. It did not occur under seal. No absolution was requested or given. Chaplains in these traditions would be obligated to honor the hospital’s reporting policy. Jewish chaplains would most likely report because saving a life and preventing harm to an innocent is of highest value. How members of Protestant and other faith traditions would respond within their polities and theological understandings may be less clear. Comments?
[5] U.S. Supreme Court decisions and federal government statutes/regulations have universal applicability throughout the U.S. in federal matters.

More Reader Responses

I've been following the confidentiality articles and discussions with great interest. I understand that there is case law that has further interpreted the right of a patient to chaplain confidentiality, especially regarding child abuse. For example, it's my understanding that where clergy-penitent relationships are honored by law, if patient who is disclosing abuse already has a relationship with a church and pastor the courts have apparently ruled that that relationship takes precedence over the patient-chaplain relationship, i.e., the need for the chaplain to report the abuse grows because the clergy-penitent relationship is less clear.

What I've been told to do as a (non-Catholic) lay chaplain in a public hospital, in order to protect the hospital and myself from claims of breaking confidentiality, is to clarify (and document) with the patient both the relationship with the patient and the patient's expectation of privacy as soon as it becomes apparent that something that may need to be reported is about to be, or has been, disclosed.

Can anyone cite examples of the case law that further interprets patient-chaplain or clergy-penitent confidentiality? I'd like to take this to our hospital ethics committee for discussion.

Alexis Versalle, Chaplain Intern
Hendersonville, NC

Hi, Thanks for the articles. Regarding Sandy, the 8 year old abused by her father , I see the ongoing dilemma of chaplaincy, short-term responses. By Sandy and Dad "short-term" pastor is suddenly invited to continue toward the path of reconciliation. That is an expensive process. Institutions do not like expense. We were in a similar dilemma in the years before Roe v. Wade: the rich girls flew to Europe; we had little help. In Sandy's and her Dad's case, we have help. I like the mental health referral idea, only if it requires the child be moved until the Dad can work toward the reconciliation. when we "blow the whistle" we are left with the responsibility to seek the path of reconciliation. Some institutions may say, "not on our time," which in itself is an ethical dilemma.
Our love for the journey,
Dave Ransom
Retired Chaplains

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.