Tuesday, May 09, 2006

Should Pastors Become Agents of the State?

In last week's blog, based upon the recent passage of SB 17 in the Ohio General Assembly, we asked the question: "Should Pastors Be Mandatory Reporters of Child Abuse?" In that blog, we reprinted my 2004 testimony before the Ohio General Assembly.

Based upon the testimony of concerned Baptist leaders in 2004, SB 17 was modified to eliminate the requirement of mandatory reporting of child abuse allegations by clergy regarding church members. Nonetheless, a serious constitutional dilemma remains in the statute: the requirement that clergy report on allegations concerning other clergy. The following is the text of the testimony of LLM Attorney Terry Lee Hamilton presented to the Ohio General Assembly in 2005.

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CONVERTING CLERGY TO AGENTS OF THE STATE:
CONTINUING CONSTITUTIONAL PROBLEMS WITH SB 17


SUMMARY

• All decent citizens and churches support legislative efforts to protect children and to prosecute child molesters. To achieve those goals, the legislation should focus on the perpetrators of child sexual abuse and on churches which cover up such abuse.
• The mandatory reporting requirements of SB 17, requiring tens of thousands of faithful clergy to become agents of the state by reporting suspicion of child abuse, were the only constitutionally suspect provisions in that initial bill.
• SB 17 removed significant constitutional difficulties by eliminating the requirement that clergy must report suspicion of child abuse by church members to the state.
• However, by continuing to require clergy to report suspicion of child abuse by other clergy or church leaders, SB 17 still stifles liberty and undermines separation of church and state, creating a situation, not unlike Nazi Germany and Communist Russia, where the state converted clergy to agents of the state.
• Heretofore, for sound public policy reasons, the General Assembly has not seen fit to include clergy within the list of mandatory reporters. Rather, the legislature should continue to focus on the perpetrators of child sexual abuse and on churches which cover up such abuse.


SB 17 -- RESPONDING TO A CRISIS IN THE ROMAN CATHOLIC CHURCH

No one who attended House and Senate hearings on SB 100 and SB 17 doubts that the chief impetus behind the legislation is the continuing legal scandals involving child sexual abuse by Roman Catholic priests. To its credit, the Roman Catholic church has stepped forward to take both internal and legislative efforts to reduce the risk of continuing child sexual abuse by priests.

Independent Baptist preachers and churches join all decent citizens and churches in Ohio in expressing their disgust at child sexual abuse, especially at the hands of priests or other religious leaders. Those preachers and churches support legislative efforts to protect children and to prosecute child molesters, such as the SB 17 provision which would amend ORC § 2901.13. By not tolling the statute of limitations for a criminal prosecution of child abuse until the “victim of the offense reaches the age of majority,” the prosecutors of this state would have a longer arm to prosecute perpetrators of child sexual abuse.

However, the amendment to § 2151.421, adding clergy to the list of mandatory reporters of suspicion of child abuse, raises serious constitutional issues without enabling the state to better pursue the child molesters; rather, the bill would create a constitutionally infirm relationship between the church and state, converting thousands of faithful pastors in Ohio into agents of the state, converting them into criminals if they don’t comply.

Both the U.S. and Ohio constitutions prohibit governmental action which would chill freedom of speech and religion by establishing a prior restraint upon communication. Imagine the following scenario:

"Suppose the initial S.B. 17 passed in late 2005. And suppose Pastor Smith reflects on his long ministry to the people of his church. Church members have come to value his wisdom and discretion during counseling sessions, knowing that anything they share will be held in strictest confidence. “All that may change now,” Pastor Smith muses as he reads the written statement which now resides on his desk.

WARNING: Before you come to me with your personal problems and spiritual battles, beware of my legal duty to report to the police or the Department of Child Protective Services any statement which you may make to me concerning child abuse or suspicion of abuse.

If you come to your pastor with personal problems or spiritual battles about murder, adultery, theft, lying, covetousness, lust of the flesh, lust of the eyes, pride of life, financial problems, physical problems, family problems, or almost any problem or difficulty in life, I will gladly counsel you in strictest confidence.

BEWARE: But if you breathe a word that may possibly be construed as child abuse, then under S.B. 17, I must report whatever you have told me to the proper authorities, who may investigate and prosecute you or your loved ones to the fullest extent of the law."


After hearing testimony on SB 17, the Senate wisely amended the bill, omitting a requirement that clergy must report to the state suspicion of child abuse by church members, thereby avoiding a potential constitutional conflict of chilling freedom of speech and religion and placing a prior restraint on both First Amendment liberties.

Some organizations, indeed, some churches, do not oppose making pastors mandatory reporters. For example, the Catholic Bishops of Ohio, as a response to the scandal of child molestation by dozens of Roman Catholic priests, do not see any constitutional problem of making all of their priests and other religious leaders agents of the state, just as are lawyers, doctors, and dozens of other health care and child care professionals. However, three simple observations belie such an untenable position.

1. The current statutory list of mandatory reporters is composed of formally trained professionals who, for the most part, follow secular or state professional standards. On the other hand, there are no secular or state standards (indeed, by definition, there can be none) for clergy, who are God’s agents, not the state’s agents.
2. The First Amendment to the U. S. Constitution (and corresponding provision of the Ohio Constitution) provides for freedom of religion and separation of church and state. Such freedoms are not found in either constitution for lawyers, doctors, and other health care and child care professionals.
3. The government should treat pastors and churches just the same as it treats members of the press, the only other institution protected under the First Amendment. Otherwise, if it were constitutionally permissible to convert clergy into agents of the state, then it would be likewise permissible to convert members of the press into agents of the state, making them subject to prosecution in the same way clergy would be.


SB 17 -- FOCUSING MORE ON CHILD MOLESTERS AND CHURCHES THAT COVER IT UP, BUT STILL CREATING A CONSTITUTIONALLY INFIRM RELATIONSHIP BETWEEN CHURCH AND STATE

As noted in the previous section, Independent Baptist preachers and churches join all decent citizens and churches in Ohio in expressing their disgust at child sexual abuse, especially at the hands of priests or other religious leaders. Those preachers and churches support legislative efforts to protect children and to prosecute child molesters, including most of the new provisions found in Sub. SB 17, as follows:

• The amendment to § 2305.111 expands the definition of child sexual abuse to include situations where the “actor is a cleric, and the victim is a member of, or attends, the church or congregation served by the cleric.” All decent citizens and churches are in favor of such a change, which focuses on the perpetrator of child sexual abuse.
• The amendment to § 2907.03 expands the scope of the crime of “sexual battery” to include when the “other person is a minor, the offender is a cleric, and the other person is a member of, or attends, the church or congregation served by the cleric.” All decent citizens and churches are in favor of such a change, which focuses on the perpetrator of child sexual abuse.
• The amendment to § 2305.111 extends the statute of limitations in civil actions to “twenty years after the cause of action acrrues . . . upon the date on which the victim reaches the age of majority.” All decent citizens and churches are in favor of such a change, which focuses on the perpetrator of child sexual abuse and upon those churches which cover it up.
• The amendment to § 5120.173 creates a one year opportunity to sue, going back thirty five years. All decent citizens and churches are in favor of such a change, which focuses on the child molester and the church which covers it up.

Another favorable feature of Sub. SB 17 is that it removes the mandatory reporting requirement with respect to clergy reporting suspicion of child abuse by church members, thereby wisely continuing down the path of avoiding unnecessary constitutional conflict. However, in its sole provision raising constitutional difficulties, SB 17 retains one aspect of mandatory reporting: clergy reporting suspicion of child abuse by fellow clergy.

The constitutional dilemma of making every pastor in the state an agent of the state for purposes of mandatory reporting of suspicion of child abuse by fellow pastors is perhaps best illustrated by a couple of historical examples.

• In order to cement his control of Nazi Germany, Adoph Hitler issued decrees that all clergy were agents of the state with respect to reporting any fellow clergy who may make statements which could be construed as in opposition to the leaders, philosophy, or practices of Nazi Germany. Some clergy who opposed that despotic regime paid with jail sentences, while others paid with their lives.
• In Communist Russia, until the Berlin Wall fell, and in Communist China today, the state imposed a policy of religious leaders spying, or keeping their eyes out, for any religious practices which might undermine the authority of the state.
In both cases, freedom of religion as well as freedom of speech were sharply curtailed. In both cases, it all started by making the religious leaders agents of the state. Is either path the path that the Ohio legislature wants to take the State of Ohio on?

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Yet, when Gov. Taft signed SB 17 into law on May 2, 2006, clergy became mandatory reporters of other clergy for whom there was reason to believe child abuse had occurred. Those concerned about the loss of liberties in America should mourn again.

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