Clerical privilege

There's plenty of support for two bills that would require clergy to report suspected child abuse - and scarcely any public opposition. But no one expects either bill to pass.

BY KRISTEN LOMBARDI

TWO BILLS RECENTLY filed on Beacon Hill would close a loophole in a state law that governs reporting of child abuse. During an emotional hearing April 2, victims of child sexual abuse expressed their ardent support for the bills. Not a single person or group has publicly expressed opposition to either measure. Yet few people believe the bills have any chance of success. "No one on Beacon Hill wants to get into trouble with the Catholic Church. Period," says one veteran legislator, explaining why State House insiders believe the bills will go nowhere.

Both measures - currently before the legislature's Joint Committee on Human Services and Elderly Affairs, which has until June 27 to act on them - would amend a 1973 state law requiring professionals who work with children to report suspected instances of child abuse to the Department of Social Services. The list of such professionals has expanded over the years and currently includes doctors, teachers, psychologists, dentists, bus drivers, and guidance counselors. Both bills would add clergy members - rabbis, ministers, pastors, nuns, and priests - to the roster of those covered by the law.

Both bills are sponsored by Senator James Jajuga. The first, Senate Bill 674, was submitted by Jajuga at the request of Boston attorney Mitchell Garabedian, who represents 86 alleged sex-abuse victims of former priest John Geoghan (see "Cardinal Law, the Church, and Pedophilia," News and Features, March 23). Garabedian's measure would make any person responsible for "the welfare, guidance, direction, supervision, or education of a child, and any supervisor of [such] a person" a mandated reporter of child abuse - thus obviating the need to add to the list ever again. The second measure, Senate Bill 675, would simply add clergy members to the list. This is the third time Jajuga has filed the bill. (Jajuga's chief of staff, Paul Fahey, notes that Jajuga submitted the Bill 674 "as a courtesy" to Garabedian.)

Almost everyone agrees that if clergy members had a legal obligation to report suspected child abuse, Geoghan, who's been accused of molesting more than 100 children throughout his 31-year career with the Boston archdiocese, would have been stopped much, much earlier than he was. Many of Geoghan's alleged victims claim in court documents that their parents had complained to his superiors about his misconduct as far back as 1973 - the same year Massachusetts enacted the mandatory-reporting law. One mother, formerly of Melrose, says she approached her neighborhood pastor at St. Mary's Parish in 1973 to voice suspicions that Geoghan was molesting her four sons. According to court records, the pastor reassured her that Geoghan would never harm another child. Evidently, however, he did not go to state authorities. Seven years later, after Geoghan was moved to his fourth parish in 18 years, another mother - this time, from Jamaica Plain - made the same complaint to Church officials. But Geoghan continued to have daily contact with children until he retired from active service in 1993.

The proposed legislation wouldn't simply address instances of abuse by members of the clergy, which represent only a fraction of child-abuse incidents. Caren Kaplan of the Washington, DC-based Child Welfare League of America notes that the Massachusetts proposals would also apply when, in the course their everyday relationships with families, clergy members come to suspect abuse. Families often turn to the clergy when seeking advice about domestic trouble, she says. Clergy come into contact with families much the way teachers do - for example, by heading a charitable project. In these circumstances, Kaplan says, "religious leaders are in a unique position to learn of abuse and get help. One of the best ways to [do so] is to report suspected abuse."

Twenty-eight states already have laws on reporting child abuse that apply to clergy members, according to the Child Welfare League. Twenty-five of these laws make exemptions for what Kaplan calls the "clergy-penitent" privilege (Connecticut, Mississippi, and West Virginia don't offer such exemptions). Both of the proposed Massachusetts bills would also exempt clergy members from revealing information deemed "privileged" - that is, information received when they act as spiritual advisers, or, as the Jajuga bill expressly states, "in their professional characters."

That means that a clergy member who hears about possible child abuse while administering the sacramental tenets of a religious faith - such as confession - does not have to contact the DSS. But a clergy member who hears the same information while performing typical pastoral duties does. As Boston University theology professor Carrie Doehring explains, "Privileged communication does not cover every act [of spiritual guidance] by the clergy. It refers to the sacrament of confession only" - a rite recognized by the Roman Catholic Church, the Greek Orthodox Church, and some Lutheran sects.

The bill authored by Garabedian attempts to avoid the constitutional issue of separation of church and state by not specifying the clergy at all. "A law that singles out clergy as mandated reporters is like the state telling the church what to do," he says, and that could be construed as violating the Constitution. Instead, his bill simply makes the blanket statement that anyone responsible for children must report abuse. It then goes on to specify that because "a person is a priest, rabbi, or ordained and licensed minister of any church . . . does not exempt such a person" from the legal requirement.

Given the careful wording of Garabedian's measure, as well as the exemption included in Jajuga's, each bill offers what Kaplan calls "a modest, conservative proposal."

LEGISLATION SIMILAR to Senate Bills 674 and 675 has been filed at the State House during every legislative session since 1988. The measures go to the legislature's Joint Committee on Human Services and Elderly Affairs, where they almost always die. Once, in 1997, the committee ruled favorably on a bill to amend the mandatory-reporting law - only to see it advance to another committee for a second reading, where it languished.

In 1988, Representative Marie Parenti filed the first bill that would have added clergy to the mandated-reporter list. Then the chair of the foster-care committee, Parenti noticed that "we had left out an important category [of professionals] in our law." She saw the measure as an attempt to correct a legal oversight but admits, "I realized we were breaking new ground, and we'd be subject to criticism."

Still, Parenti did not anticipate the extent of the criticism. One State House insider, who helped research the 1988 bill and has tracked its successors, cannot forget the heated, closed-door discussions between legislators, church leaders, and DSS officials as they hashed out concerns. "I remember these exhaustive meetings," the insider says. The controversy centered on the question of clergy-parishioner privilege. People wondered what "privileged communication" meant. Would the term refer only to the sacrament of confession? What if several private conversations took place? At what point would these talks become non-privileged? But these issues were never resolved, the insider explains: "Nothing happened. The meetings ended."

Similar scenarios have played out each time such a bill surfaces. In 1992, Representative Paul Caron filed comparable legislation to pay homage to the memory of 13-year-old Danny Croteau, an alleged victim of clergy abuse who was killed in 1972. After his measure died in the human-services committee, Caron refiled it in 1994. Again, the committee sat on it. Three years later, Senator Mark Montigny sponsored an identical bill that received a favorable report from the committee, only to die in another committee reviewing its legality. The last version, filed by Jajuga in 1997 and 1999, also went nowhere.

Legislators attribute these repeated failures to one thing: church opposition. Montigny believes organized religion has proven itself just as obstructive as any other interest group. "People get antsy when you call the church a 'special interest,' " he adds, "but this is an example of common sense being suppressed by politics." The long-standing objection among clergy, legislators say, comes down to territory. By forcing clergy to go to civil authorities, the state would encroach on the domain of religious institutions, which enjoys constitutional protection. Other laws mandating that clergy report possible child abuse have been challenged on constitutional grounds. To date, however, all of them have been upheld by the state courts. Garabedian, who is researching the question, says: "I don't know of any state in which the law has been overturned because of constitutionality. But I have not exhausted my research yet."

The Reverend Joyce Scherer-Hoock, the associate rector of Trinity Episcopal Church in Topsfield, admits she would have a hard time with the proposed legislation because of her role as a counselor. If a congregant confided that her husband might be abusing her daughter, Scherer-Hoock says, "I'd want to nurture the relationship so the woman could act for herself." She might suggest that the woman report the abuse, or offer to escort her to police. But if the woman refused, Scherer-Hoock says, "I could not in good conscience go behind her back and report what she said. That would violate her trust."

Bill supporters, however, point out that a counseling session by a clergy member resembles one by a psychologist, counselor, or therapist - all of whom enjoy confidentiality privileges yet are obligated to contact DSS as soon as they believe a child might be in harm's way. Other professionals - such as doctors and dentists - are also mandated reporters with confidentiality privileges. In all these instances, the mandatory-reporting law supersedes the privilege.

It's difficult to determine the extent to which official religious bodies actually oppose - or support - the proposed changes to the mandatory-reporting law. The Massachusetts Council of Churches, the lobbying arm for various Christian denominations, won't comment on the legislation. Rabbi Michael Meninhoff, the New England president of the Rabbinical Assembly, did not return the Phoenix's repeated phone calls. Rabbi Abraham Halbfinger of the Rabbinical Council of Massachusetts says he hasn't heard of the proposals. Explains Halbfinger, "This would require consideration from our board."

The Catholic Church - despite recent accusations that its officials have failed to report abuse - has also kept silent about its stance so far. Boston archdiocese spokesperson John Walsh declined to answer a list of questions about whether the Church would support the current bills. No one from the Church appeared before the human-services committee April 2 to speak about them. And neither Senator Susan Tucker nor Representative Antonio Cabral, the committee's co-chairs, claims to have received one letter or phone call from the Church in opposition.

"To my knowledge," Tucker adds, "no one has taken a stance opposing this bill."

THE PHOENIX contacted all six senators and 11 representatives who serve on the Joint Committee on Human Services to get a sense of what chance the bills have of passing. Four of those members - Senators Therese Murray and Richard Tisei, and Representatives Anne Paulsen and Bruce Ayers - declined to comment.

Five of their colleagues - Tucker, Cabral, Senator David Magnani, and Representatives Carol Cleven and Geraldine Creedon - have yet to make up their minds about the bills. Some hold their cards close to the vest. Both committee heads, for example, stress that they are weighing the research before making a decision (although Tucker says she supports "some mechanism for reporting child abuse within the clergy"). Others - like Magnani, who has served on the committee since 1993 - worry that such a requirement would prevent families from seeking out the clergy. "Are we making it more difficult for clergy to do their work by mandating this?" he asks. "Would they be more or less effective at helping children?" Though Magnani recognizes that clergy-abuse cases have legitimized the issue, he says he still has "questions" about the constitutional issues. Meanwhile, Cleven and Creedon say they are leaning in favor of the legislation.

If so, Creedon and Cleven would join eight fellow members who say they support the current bills: Senators Andrea Nuciforo and Robert O'Leary, and Representatives Christine Canavan, Shirley Gomes, Patricia Haddad, Kay Khan, Ellen Story, and David Sullivan. Some legislators suggest that their support was sealed the moment they heard the April 2 testimony, during which several victims broke down in tears or erupted in anger. "The testimony shocked me," Sullivan recalls. "I feel we have a responsibility to respond to the concerns expressed at that hearing."

Ultimately, though, most supporters say their position is based in one thing: common sense. The clergy enjoy as much contact with children as any other mandated reporter. Why not add them to the list, especially since the current legislation honors the sanctity of confession? As Nuciforo puts it: "I would put these bills in the category of housekeeping. They clear up a wrinkle in the law."

With more than half the human-services committee inclined in their favor, the bills may make it out of committee for the first time in years. This is the result of two factors, observers say. One, the committee's composition has changed since the last session. Not only are there two new chairs - who schedule bills for consideration - but there are also 10 female committee members. They are part of the women's legislative caucus, which has fought diligently for abuse-prevention initiatives in recent years. have sat on this committee when women weren't a dominant force," says Cleven, a member for seven years. "Our majority could help." Second, and more significantly, politicians outside Beacon Hill are speaking out in favor of the clergy mandate. Three Boston city councilors - Chuck Turner, Mickey Roache, and Brian Honan - have taken an interest by putting forth their own, soon-to-be-voted-on council resolution that would urge passage of the bills.

But that doesn't guarantee success. And many observers are pessimistic. If it turns out that the churches oppose the measures, people would need to unite around these bills - and not just abuse victims. Except for the Boston city councilors, no one has come forward to champion the legislation - no child-welfare advocates, no law-enforcement officials. Compare this with what happened in Maine in 1997, when victims filed a similar bill with that state's legislature. Former Maine attorney general Andrew Ketterer made the measure his pet project after revealing that he'd been abused as a child by a Catholic nun. Recalls Cynthia Yerrick, a former Southbridge resident who now lives in Maine and helped pass its 1997 law, "People in high places were open to the idea that abuse happens within church walls." Yet in Massachusetts, she says, political leaders exhibit "such a blind faith in the Catholic Church."

Even if the proposed bills make it out of the human-services committee, they still must navigate the House and Senate. From human services, the legislation will probably go to a Senate committee that would decide whether to bring it up for debate. It would then move to the House. But some State House insiders remain convinced the matter will never get far while House Speaker Tom Finneran stays at the helm. One observer says Finneran is "too chummy" with Bernard Cardinal Law to support the changes.

Finneranspokesperson, Charles Rasmussen, maintains that the Speaker has never heard of the proposals. "This is a new issue for him," Rasmussen says. "He hasn't formed an opinion."

Meanwhile, nothing new has surfaced to help move these bills along. Given that such measures did not pass at the height of the Geoghan case, Nuciforo says, "I really don't know what it will take."

Kristen Lombardi can be reached at klombardi[a]phx.com