Legislature(2003 - 2004)
04/02/2003 01:05 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 92 - CLERGY TO REPORT CHILD ABUSE Number 1169 CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 92, "An Act relating to reports by members of the clergy and custodians of clerical records who have reasonable cause to suspect that a child has suffered harm as a result of child abuse or neglect." [Before the committee was CSHB 92(STA).] The committee took an at-ease from 3:10 p.m. to 3:13 p.m. Number 1190 REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor, said that although no one is above the law, there must first be a law. He elaborated: One only has to read the national headlines to conclude it's long past time to mandate reporting by clergy of actual or suspected sexual abuse of children. Doctors, and nurses, and teachers already are required to report. Alaska's children and Alaska's faith community are Alaska's most important and valuable resources, and resources most worthy of protection. That's why I introduced HB 92 .... I believe HB 92 will be good for children, good for all of our churches, and good for Alaska. A couple points, please, before I proceed. Please understand that [it is] is not my intent to cast stones at any particular church, or any particular individual, or any particular group of individuals. As a point of information and to avoid any misunderstanding of my intent, I sent my proposed legislation to our [Legislative Legal and Research Services] in mid-December of 2002, ... long before some of the publicity we've seen recently involving one of our archbishops .... As another point of clarification or perhaps even disclosure, I'm a practicing Roman Catholic, active in my church, but I'm here testifying strictly as a legislator and strictly as a layperson. I can speak only of my personal lay-knowledge of church practices ..., and I don't speak for my personal church or anybody else's church or place of worship. I should also add, thankfully, there's been no personal involvement of me or anyone in my family with any [of] the situations which [have] prompted me to introduce this bill. Number 1308 REPRESENTATIVE LYNN continued: Headlines don't tell the entire story. No church has a monopoly on sinners, whether they are clergy or non- clergy, and certainly no church has a shortage of people who find inaction more convenient than action. It is neither fair nor accurate to conclude from newspaper headlines that sexual abuse or failure to report abuse is territory limited to only one place of worship. A church [which] organizes a hierarchy of clergy, such as the Catholic Church and several others, may actually have an easier reporting situation than churches in which clergy report only to their own congregation, where there is not one boss, so to speak, and no single keeper of personnel records. The point is, however a church is organized, the appalling failure of any [clergy] member to voluntarily report abuse should not become an excuse for bashing anyone's church. The surreptitiousness involving sexual mistreatment of children and a failure to report abuse [have] no denominational boundaries. [House Bill 92] is intended to protect our children and strengthen the entire spectrum of our faith communities by doing what common sense tells us needs to be done. All 50 states have some form of mandated reporting of sexual abuse of children, and many include clergy among the mandated reporters. [House Bill 92] does, in fact, provide a reporting exception for penitential communication, commonly known as confession. The ... right of confession - in my faith family, we call it a sacrament - ... is not generally well understood outside churches that practice it. It's understandable that some may believe exclusion of mandatory reporting of confession in HB 92 is unfair to churches that don't practice a formal rite of confession. The only thing I can say is, this hearing and this bill are not the place to debate the theology of confession or any other church doctrine or practice. Number 1402 REPRESENTATIVE LYNN went on to say: It may also not be commonly known that the right of confession is not limited to [the] Roman Catholic Church. Other churches have a similar special right of confession, including Episcopalians and the various orthodox churches such as the Greek Orthodox, Russian Orthodox, and the Orthodox Church of America. Some well-meaning person is sure to ask the question, and it's an understandable question, "What's more important, reporting child abuse or protecting the seal of confession?" And, frankly, the answer to that is above my pay grade, and I suppose God would have to answer that. The reality is, however, that the absolute protection of the seal of confession goes back to biblical days, and priests have suffered execution rather than reveal whatever is contained in a confession. With this in mind, we can see that no state law is going to trump the seal of confession even though some states have seen fit to have this unenforceable law in their statute books. Whatever, HB 92 would probably encompass - and, admittedly here, I'm guessing - over 95-98 percent of the abuses they should be reporting, and better something than nothing. A case can also be made that everyone should be mandated to report sexual abuse and, in fact, some states have that very law. At some point perhaps we should visit that option, but ... now is the time to put clergy on the mandated reporting list. Of course, not every allegation of abuse is valid; properly reported, an allegation can be investigated and, [if] necessary, guilt or innocence [can] be determined by [a] proper court of law. Number 1462 REPRESENTATIVE LYNN concluded: There can be no due process of law, however, without a law. [House Bill 92] has a very broad range of support, including the direct letters of support from the Russian Orthodox Diocese of Sitka and Alaska, the [Episcopal Diocese of Alaska], Pastor John Hunn of the Anchorage Grace Church, the government relations department of the Seventh-day Adventist Church, the Alaska Catholic Conference, and Anchorage Baptist Temple of which Jerry Prevo is the pastor. Mr. Chip Wagoner of the [Alaska] Catholic Conference is here with us today and he may be able to answer some of the questions as HB 92 pertains to his catholic community. [House Bill 92] has had two hearings in the House State Affairs [Standing] Committee and two of your members were very positive participants in those hearings, and they'd be able to confirm how thoroughly we checked over this bill. In summary, no one of any age or situation should suffer sexual abuse. My bill simply adds clergy, who treat the health of the soul, to the current list of mandated reporters, a list that includes doctors, nurses, and teachers. I think the requirement for clergy to report suspected child abuse is both reasonable and too long overdue. [House Bill 92] is not a panacea - and no legislation is a panacea for anything - but it is a practical step in the right direction. Our faith communities and our children need the added protection of HB 92 to help root out perverts and their enablers, and to preserve the reputation of our faith communities. And with that said, I respectfully ask your support of HB 92. Number 1545 FLOYD SMITH, Consultant, Alaska District Council of the Assemblies of God, said that there are three issues he wishes to discuss. One is the confidentiality clause, another is who is included as clergy, and the last is the immunity provision contained in the bill. He noted that Alaska District Council of the Assemblies of God comprise 84 churches ranging from the Arctic Slope to Wrangell; some of their churches have less than 100 [parishioners] and some have more than 2,500 or 3,000 [parishioners]. He warned that the Alaska District Council of the Assemblies of God will have some substantial difficulties meeting all the terms and conditions of HB 92 because of the wide variance in their churches' resources. MR. SMITH relayed, however that his organization has now, and has had for many, many years, a zero tolerance policy with regard to child abuse, adding that his organization routinely reports suspected child abuse. Regardless, he opined that HB 92 contains deficiencies. He turned to proposed Sec. 47.17.021 - reports by clergy members - which provides that there will be an exemption in reporting of child abuse if the child abuse is learned of during a penitential communication - in other words, during a confession. He said that Alaska District Council of the Assemblies of God would much prefer that the committee look instead at the Alaska Rules of Court, specifically Alaska Rules of Evidence Rule 506, which says in part, "A communication is confidential if made privately and not intended for further disclosure ...." He noted that in the Alaska Rules of Evidence Commentary, it says of Rule 506: It recognizes that the need for a private enclave for spiritual counseling is not confined to those whose religion requires confession, but extends to all who attempt to lead righteous lives with the aid and comfort of their religion and religious advisers. MR. SMITH suggested that the committee may wish to consider replacing the word "penitential" with the word "confidential"; he opined that doing so would be in accord with Rule 506. He also suggested striking lines 19-23, from page 2, beginning with the words, "[who,] in the course of the discipline or practice of". He said that the problem with this language is that with regard to protestant denominations, the term "duty" - now located on page 2, line 22 - becomes a term of art, one which he finds almost impossible to define in terms of his organization's ministers. Number 1782 MR. SMITH elaborated: We have an obligation, under our church discipline or custom or tenants or however you wish to phrase it, that when a parishioner or other person approaches a minister and says, "I'd like to talk to you about this; this is something I need to get off my chest," ... that this is intended and is understood to be a confidential communication just as if the person had entered [a] confessional booth at the cathedral. To extend to one denomination a right of confidentiality, which is denied to another, begins to move toward very serious and substantial constitutional issues of establishment of religion, equal protection of the laws, and, frankly, I'm not sure if we have time to get into that. But we feel strongly that we are entitled to the same protection [of] confidentiality as extends to any other religious denomination. MR. SMITH then turned to the issue of defining clergy. He noted that as currently stated in HB 92, "'clergy member' means a bishop, pastor, priest, minister, rabbi, religious healing practitioner, or person in a similar leadership position of a church, temple, religious denomination, or religious organization". He remarked Rule 506 is much more concise, relaying that it says, "A member of the clergy is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting the individual." MR. SMITH said he assumes that the term "priest" includes a bishop; thus including the term "bishop" is not necessary. He also said he assumes that the term "pastor" includes a minister; but maybe it doesn't, he then acknowledged. He explained that the Alaska District Council of the Assemblies of God has many individuals who assume leadership positions, such as those who lead bible study groups and altar attendants. He asked whether all such people would become mandated reporters. If so, he remarked, his organization would have great difficulty with that stipulation. Number 1889 MR. SMITH then turned to As 47.17.050, which says in part with regard to immunity, "a person who, in good faith, makes a report under this chapter ... is immune from civil or criminal liability". He said that upon reading that language, it occurred to him that "we do not have any presumption in that language, that it is presumed that this report is made in good faith." Bearing in mind that the law requires a person to report immediately, and in no case longer than 24 hours, he opined that "this" is an invitation to a lawsuit and is "a lurking problem." He mentioned that he is investigating whether this provision of current law has been utilized. He suggested that the committee do some research to determine whether "this immunity provision" is adequate. He said he would prefer a presumption, which can only be overcome by clear and convincing evidence. REPRESENTATIVE GARA, after noting that there is no confidentiality provision for clergy with regard to elder abuse, asked why there should be such a provision with regard to child abuse. MR. SMITH suggested that the bill should be held over to the next session in order to allow more time for research on that issue. REPRESENTATIVE LYNN, with regard to the definition of clergy member, said that the term "bishop" was included to accommodate concerns raised by the Church of Jesus Christ of Latter-day Saints, whose bishops perform functions similar to ministers and priests. He said that originally, the definition was written more narrowly in order that it not include everybody that works in some capacity for the church; the definition was intended to just encompass the "actual practicing leadership of the church." With regard to the term "penitential communication", he noted that that language is used without a problem in several other states. REPRESENTATIVE GARA remarked that "penitential" is defined to mean the confession of somebody who has done something wrong, somebody who has done something that they feel guilty about. He said, "It's almost an irony that we are protecting people who go to clergy, who have done something wrong, and we are not protecting the victim." He opined that the current language in the bill would require clergy to report abuse if a victim discloses it, but in using the term "penitential communication", anything revealed by the aggressor would not have to be reported. REPRESENTATIVE LYNN clarified that anybody who walks into a confessional is called a penitent, regardless of whether he/she is the victim or the aggressor. Number 2266 WILLIAM MOFFATT, Staff to Representative Bob Lynn, Alaska State Legislature, sponsor, said that in his faith community, if somebody comes to confession, regardless of who it is, he, as a priest, cannot reveal what is said even if given permission by the penitent. He noted, however, that just because somebody comes to confession, it does not automatically mean that he/she will get absolution. In his church, he remarked, if he won't give someone absolution, no other priest can. He indicated that he would tell someone who confesses to a crime that he/she is not going to get absolution until he/she reports that crime to a civil authority. He opined that with regard to regular conversations, clergy have a duty as citizens to report abuse of any kind. He remarked that repentance is not just feeling sorry for one's actions; rather, it includes being sorry for an action, being willing to do something about it - to make amends - and following through with [making amends]. He opined that the [confidentiality provision in] HB 92 is intended to recognize that some religions have a certain centuries-old tradition. TAPE 03-29, SIDE B Number 2345 JOANNE GIBBENS, Program Administrator, Central Office, Division of Family & Youth Services (DFYS), Department of Health & Social Services (DHSS), said that the DHSS supports the intent of HB 92 to include clergy members in the list of mandated reporters. However, she asked the committee to examine the provision that exempts the reporting of neglect. She elaborated: The department feels that, as mandated reporters, clergy should be required to report everything that ... all current mandated reporters are required to report. I know there's been some concern in previous hearings about that issue and, ... for clarification purposes, I just wanted to share with the committee the fact that, ... first of all, issues of neglect are the number one most reported type of child maltreatment nationally. Issues of neglect ... also result in long-term damages to children, even more so than some other types of abuse. And we could certainly share with the committee documentation of that through national studies and those types of things. Child deaths related to neglect are almost on an equal keel with child deaths related to physical abuse, looking at a number of national studies. There's been some concern that [including] neglect may mean having to ... file a report with the division or with law enforcement because a family is poor and does not have some of the financial abilities or other abilities to meet the needs of their children. And that's certainly not the case. And when we train mandatory reporters - which we would do for clergy as well - we would, of course, include that in our training. So when we're talking about making reports to the division regarding neglect, we're talking about instances where families may have the resources, themselves, to provide for the physical needs of their children [but] refuse to do so; [they] don't take adequate care of their kids. We may be talking about families where assistance has been offered [but] refused. Number 2229 MS. GIBBENS went on to say: Quite often, reports of neglect allow us to intervene early with a family, to maybe prevent future and more severe abuse. And neglect calls often don't result in taking custody of a child, but often result in the division being able to facilitate services for a family. For instance, you might have a single mother, and maybe there's been a long-term pattern of ... not being able to adequately feed ... or clothe her child, and she's struggling because she doesn't know whether to stay home ... but needs to find a job, and doesn't have the resources. With our involvement, we can help her get daycare, and pay for that, for her child. So, in essence, ... we would like the committee to ... reconsider not including the neglect issue in terms of the mandatory reporting, because we really do feel ... [that] we have the same goals as clergy members do ... in terms of the health and safety of their parishioners and people that they care for, and see this as a way for us to potentially help families that may not be able to get the help they would otherwise. CHAIR McGUIRE thanked Ms. Gibbens for her testimony, and mentioned that there might be an amendment that would address the issue of neglect. Number 2157 TED BOATSMAN, Reverend, and Superintendent, Alaska District Council of the Assemblies of God, relayed that his organization has a zero tolerance policy regarding abuse of children, women, and the elderly. He noted that his organization has removed the credentials of those who have violated that policy. He relayed that he wanted HB 92 to be denominationally friendly, acknowledging, however, that that might be difficult, particularly with the use of the term "penitential communication". He said that as a protestant, he sees himself having to defend which conversations were intended to be private and confidential, and which were not. MR. BOATSMAN added, therefore, that he supports the language in Rule 506, as previously mentioned by Mr. Smith, regarding communications and clergy members. He then turned to the term "similar leadership position" on page 3, line 2, of HB 92. He said he is assuming that this term includes church elders, who, although not ordained in his organization, are held to very high spiritual standards, and who also find themselves in positions similar to actual clergy. He opined that HB 92 is a good idea that just needs to be adjusted a bit to ensure that it is denominationally friendly and doesn't create liability issues for certain religions but not others. Number 2002 CHIP WAGONER, Lobbyist for the Alaska Catholic Conference ("Conference"), explained that the Alaska Catholic Conference is made up of the three Roman Catholic bishops of Alaska, and is the vehicle "they" use when speaking on public policy matters. He said that the Conference supports HB 92 and, after hearing Ms. Gibbens's testimony, would support putting the term "neglect" back in the bill. Turning to the issues raised by Mr. Smith, he said that the Alaska Rules of Evidence, Rule 506, "do not provide any sort of an exception unless there's a case action or proceeding currently in court." Therefore, in order to use [Rule 506], the statute itself must contain the language of that rule. MR. WAGONER went on to say: [The] position of our church is, number one, our priests and our bishops and what we call our fulltime ministers ... - all pastoral ministers - of the diocese of Juneau are to assume that they are mandatory reporters. So if we have our director of religious education or anyone else that hears a report of sexual abuse or neglect, they are to assume that they are mandatory reporters and should report it. And whether you pass the law or not, that is the position of our diocese, and it's the position of the Anchorage archdiocese. And the Fairbanks diocese, which has a brand new bishop, is currently reviewing their policies, but I'm sure that would probably apply there too. The one time that our church would not report allegations of suspected sexual abuse or neglect is in the very narrow sacrament of penance and reconciliation. So if a person came to one of our priests and wanted to talk about their marriage problems, and sexual abuse came up, we would be reporting it, whether you pass the law or not. If one of them came and said something about a neighbor to the priest, it would be reported. It is only in the very narrow exception, per our church's policy, of the sacrament of penance and reconciliation where we would not report it. And the sacrament of penance and reconciliation, depending on which book you want to read, actually started in the second century. The form we know today started in the fifth century. Number 1883 MR. WAGONER read from an unspecified document: What happens in the sacrament of penance and reconciliation is almost more than one can imagine. If we could meet Jesus today, we would expect to be received with love and compassion because he is perfect and knows what it is to forgive. Instead, we confess to an ordinary human being who represents Jesus Christ sacramentally. MR. WAGONER added that his church has seven sacraments, of which "this is one, and they all flow directly from Jesus Christ." Noting that he was quoting from Pope John Paul II, he said: In faithfully observing the centuries old practice of the sacrament of penance, the practice of individual confession, with a personal act of sorrow and the intention to amend and make satisfaction, the church is therefore defending the human soul's individual right - man's right to a more personal encounter with the crucified forgiving Christ, with Christ saying, through the minister of the sacrament of reconciliation, "Your sins are forgiven; go, and do not sin again." MR. WAGONER said his church would like, at the very least, to see the narrow exception pertaining to information revealed during the sacrament stay in the bill, although he acknowledged that other churches may not have the sacrament. He assured the committee that [aside from that exception] anytime those other churches would be required to report something, so, too, would his church. In response to questions, he said he would find out for the committee who can receive the sacrament. REPRESENTATIVE GARA opined that it is that very narrow definition of the sacrament that causes the problem. He elaborated: Most other religions have an equivalent thing, but that is not as narrowly defined. ... Many other religions have a confidential communication that you can have with a religious leader, which, in your church, would be reportable, but they don't have a sacramental confession. And, so, I don't think we can write the bill that would just allow an exception for the sacramental confession without having an equal protection problem for the other religions. But, then, if we extend the definition to be broad enough that it also covers confidential communications between a clergy and a member, which would be reportable by the Catholic church if it were outside of the sacrament and confessional context - if [we] extend the definition to cover those things - now we're covering things that would be reportable by your church, but [only] to be fair to the other churches. And I don't know that that's the proper way to go about it, either. Number 1644 MR. WAGONER, in response, asked that his church not be penalized simply because other churches have chosen not to have the sacrament of confession, which he characterized as being at the heart of his church for centuries. REPRESENTATIVE LYNN, in response to a request by Chair McGuire, said he would provide the committee with information regarding the reporting requirements in other states. CHAIR McGUIRE remarked that it is important to ensure that one religion's right to confidential communication is not being protected more than the rights of other religions. MR. WAGONER noted that information regarding other states can be found in a document produced by the National Clearinghouse on Child Abuse and Neglect Information, which is a service of the Children's Bureau; Administration on Children, Youth and Families; Administration on Children and Families; U.S. Department of Health and Human Services. CHAIR McGUIRE relayed that Ms. Gibbens has indicated that she will provide that document to the committee. MR. WAGONER said that according to his understanding, in only New Hampshire and West Virginia is the confessional not privileged, and some states simply require "all persons" to be mandatory reporters. In response to a question, he said he would research whether people who go to confession are encouraged to turn themselves in to law enforcement for acts that may warrant it. CHAIR McGUIRE noted that with the attorney-client privilege, there is a distinction between past acts and future acts in that attorneys are required to report possible future acts. She asked whether there is something similar for information revealed in the confessional. [Although inaudible on the tape, Mr. Wagoner indicated that there is not.] Number 1398 REPRESENTATIVE GARA thanked Mr. Wagoner for being willing to have the reporting of neglect added back in the bill. He then again raised the point that clergy are, by statute, required to report instances of elder abuse, regardless of where or when it is learned of. He opined that this is also the right approach to take on the issue of child abuse, noting that the competing concerns of protecting somebody from harm and protecting someone's confidentiality are common to both types of abuse. He said it seems to him that protection from harm is more important. He asked Mr. Wagoner for the church's position regarding the distinction between the reporting requirements for elder abuse and the reporting requirements for child abuse. MR. WAGONER relayed that in the eyes of the church, there is no distinction between elder abuse and child abuse: the sacrament is inviolate for both. He said he would be very surprised to learn that there have been any reports of elder abuse that came from information learned in the confessional. REPRESENTATIVE GARA said: I think we recognize that if we ... decided not to grant a privilege, ... as a matter of conscience, some members of the clergy would not obey it. And that would probably be the reality. And that's probably the reality in any other states. So, I understand that. REPRESENTATIVE SAMUELS remarked that lacking an exception for information revealed in the confessional, the legislation would be criminalizing priests. REPRESENTATIVE GARA pointed out, however, that such is already the case regarding elder abuse. REPRESENTATIVE GRUENBERG opined that both sets of laws should be congruent: either there should be reporting without exception for both types of abuse, or there should be an exception pertaining to information revealed in the confessional for both types of abuse. CHAIR McGUIRE asked whether there are any reporting requirements in statute for spousal abuse. Number 1236 MS. GIBBENS said that domestic violence is addressed in a couple of ways. She relayed that AS 47.17.035 speaks to the duties of the department with regard to domestic violence cases, and that AS 47.17.020(h) says: This section does not require a person required to report child abuse or neglect under (a)(6) of this section to report mental injury to a child as a result of exposure to domestic violence so long as the person has reasonable cause to believe that the child is in safe and appropriate care and not presently in danger of mental injury as a result of exposure to domestic violence. MS. GIBBENS noted that AS 47.17.035 stipulates that the department must develop protocols with the Council on Domestic Violence and Sexual Assault (CDVSA). She said that if the issue of domestic violence arises during an investigation of child abuse, "it needs to be something that has to be screened for, and then ... a decision needs to be made about the appropriate protection of the child." She added that the department is required to make reasonable efforts to protect the child and prevent the removal of the child from the custody of the parent who is not the domestic violence offender. REPRESENTATIVE GARA surmised, then, that currently there are no specific reporting requirements regarding domestic violence. CHAIR McGUIRE announced that HB 92 would be held over. REPRESENTATIVE LYNN asked for the committee's assistance regarding specific changes. REPRESENTATIVE SAMUELS asked Representative Lynn whether he had any objection to replacing the language pertaining to neglect. REPRESENTATIVE LYNN said he did not, noting that it was part of the original bill. REPRESENTATIVE GRUENBERG mentioned that at the next meeting, he would be offering an amendment that would incorporate Mr. Smith's suggestion regarding Rule 506. REPRESENTATIVE GARA mentioned that perhaps instead of bringing in the entirety of Rule 506, the same goal could be accomplished simply by changing "penitential communication" to "confidential communication". CHAIR McGUIRE, after some committee discussion, noted that at the next hearing, one of the issues that would be addressed would be the differences between the reporting requirements in HB 92 and the elder-abuse statute. [HB 92 was held over.]
| Document Name | Date/Time | Subjects |
|---|