As noted on the Presbytery’s web page, and in brochures mailed to clergy by
child advocate groups, the Michigan Legislature has voted to now add
clergyperson’s to the list of "mandated reporters" when and if they become aware
of child abuse. This places upon clergy, as well as others, e.g. physicians,
educators, nurses, etc. the weight of the law in that we have a prescribed
manner and window of time to report actual or suspected abuse to proper
authorities or we assume criminal liability.
However, it is important to understand that the "clergy-penitent privilege"
has not been revoked. This legally recognized "expected confidentiality" on the
part of those who give us information within the scope of our role as
clergyperson is often misunderstood or minimized by understandably zealous child
advocates. It is important to realize that evidence gathered in a criminal case
is subject to the doctrine of "fruit of the poison tree." Which means, in
essence, that if a clergyperson reports information gathered during a pastoral
session, which included the assumption of confidence, that information falls
outside of the arena of mandated reporting. Any further evidence gathered about
the case, based upon the report of the clergyperson, is "poison" or voided
because of the violation of the clergy-penitent privilege. This means that a
case could be lost because of a well intentioned, but misinformed act on our
part as clergy.
In summary, if you are aware of child abuse, as a clergyperson you must
report your suspicion to the proper authorities. If that information came to you
within the scope of your role as clergyperson, seek direction from your local
prosecutor’s office. But be certain that they are aware of the above. Don’t be
surprised if they have to do legal research before they can direct you further.
722.631 Privileged communications.
Sec. 11.
Any legally recognized privileged communication except that
between attorney and client or that made to a member of the clergy in his or her
professional character in a confession or similarly confidential communication
is abrogated and shall not constitute grounds for excusing a report otherwise
required to be made or for excluding evidence in a civil child protective
proceeding resulting from a report made pursuant to this act. This section does
not relieve a member of the clergy from reporting suspected child abuse or child
neglect under section 3 if that member of the clergy receives information
concerning suspected child abuse or child neglect while acting in any other
capacity listed under section 3.
History: 1975, Act 238, Eff. Oct. 1, 1975 ;--Am. 2002, Act 693, Eff. Mar.
1, 2003 .
CHILD PROTECTION LAW (EXCERPT)
Act 238 of 1975
722.623 Persons required to report child abuse or neglect; written report;
transmitting report and results of investigation to prosecuting attorney, county
family independence agency, or law enforcement agency; pregnancy of or venereal
disease in child less than 12 years of age.
Sec. 3.
(1) An individual is required to report under this act as
follows:
(a) A physician, dentist, physician's assistant, registered
dental hygienist, medical examiner, nurse, person licensed to provide emergency
medical care, audiologist, psychologist, marriage and family therapist, licensed
professional counselor, certified social worker, social worker, social work
technician, school administrator, school counselor or teacher, law enforcement
officer, member of the clergy, or regulated child care provider who has
reasonable cause to suspect child abuse or neglect shall make immediately, by
telephone or otherwise, an oral report, or cause an oral report to be made, of
the suspected child abuse or neglect to the department. Within 72 hours after
making the oral report, the reporting person shall file a written report as
required in this act. If the reporting person is a member of the staff of a
hospital, agency, or school, the reporting person shall notify the person in
charge of the hospital, agency, or school of his or her finding and that the
report has been made, and shall make a copy of the written report available to
the person in charge. A notification to the person in charge of a hospital,
agency, or school does not relieve the member of the staff of the hospital,
agency, or school of the obligation of reporting to the department as required
by this section. One report from a hospital, agency, or school shall be
considered adequate to meet the reporting requirement. A member of the staff of
a hospital, agency, or school shall not be dismissed or otherwise penalized for
making a report required by this act or for cooperating in an investigation.
(b) A department employee who is 1 of the following and has
reasonable cause to suspect child abuse or neglect shall make a report of
suspected child abuse or neglect to the department:
(i) Eligibility specialist.
(ii) Family independence manager.
(iii) Family independence specialist.
(iv) Social services specialist.
(v) Social work specialist.
(vi) Social work specialist manager.
(vii) Welfare services specialist.
(2) The written report shall contain the name of the child
and a description of the abuse or neglect. If possible, the report shall contain
the names and addresses of the child's parents, the child's guardian, the
persons with whom the child resides, and the child's age. The report shall
contain other information available to the reporting person that might establish
the cause of the abuse or neglect, and the manner in which the abuse or neglect
occurred.
(3) The department shall inform the reporting person of the
required contents of the written report at the time the oral report is made by
the reporting person.
(4) The written report required in this section shall be
mailed or otherwise transmitted to the county family independence agency of the
county in which the child suspected of being abused or neglected is found.
(5) Upon receipt of a written report of suspected child abuse
or neglect, the department may provide copies to the prosecuting attorney and
the probate court of the counties in which the child suspected of being abused
or neglected resides and is found.
(6) If an allegation, written report, or subsequent
investigation of suspected child abuse or child neglect indicates a violation of
sections 136b and 145c or sections 520b to 520g of the Michigan penal code, 1931
PA 328, MCL 750.136b, 750.145c, and 750.520b to 750.520g, has occurred, or if
the allegation, written report, or subsequent investigation indicates that the
suspected child abuse or child neglect was committed by an individual who is not
a person responsible for the child's health or welfare, including, but not
limited to, a member of the clergy, a teacher, or a teacher's aide, the
department shall transmit a copy of the allegation or written report and the
results of any investigation to a law enforcement agency in the county in which
the incident occurred. If an allegation, written report, or subsequent
investigation indicates that the individual who committed the suspected abuse or
neglect is a child care provider and the department believes that the report has
basis in fact, the department shall transmit a copy of the written report or the
results of the investigation to the child care regulatory agency with authority
over the child care provider's child care organization or adult foster care
location authorized to care for a child.
(7) If a local law enforcement agency receives an allegation
or written report of suspected child abuse or child neglect and the allegation,
written report, or subsequent investigation indicates that the child abuse or
child neglect was committed by a person responsible for the child's health or
welfare, the local law enforcement agency shall refer the allegation or provide
a copy of the written report and the results of any investigation to the county
family independence agency of the county in which the abused or neglected child
is found, as required by subsection (1)(a). If an allegation, written report, or
subsequent investigation indicates that the individual who committed the
suspected abuse or neglect is a child care provider and the local law
enforcement agency believes that the report has basis in fact, the local law
enforcement agency shall transmit a copy of the written report or the results of
the investigation to the child care regulatory agency with authority over the
child care provider's child care organization or adult foster care location
authorized to care for a child. Nothing in this subsection or subsection (1)
shall be construed to relieve the department of its responsibilities to
investigate reports of suspected child abuse or child neglect under this act.
(8) For purposes of this act, the pregnancy of a child less
than 12 years of age or the presence of a venereal disease in a child who is
over 1 month of age but less than 12 years of age is reasonable cause to suspect
child abuse and neglect have occurred.
History: 1975, Act 238, Eff. Oct. 1, 1975 ;--Am. 1978, Act 252, Eff. Mar.
30, 1979 ;--Am. 1978, Act 573, Eff. Mar. 30, 1979 ;--Am. 1980, Act 511, Imd. Eff.
Jan. 26, 1981 ;--Am. 1984, Act 418, Eff. Mar. 29, 1985 ;--Am. 1988, Act 372, Eff.
Mar. 30, 1989 ;--Am. 1994, Act 177, Imd. Eff. June 20, 1994 ;--Am. 2002, Act 10,
Imd. Eff. Feb. 14, 2002 ;--Am. 2002, Act 661, Imd. Eff. Dec. 23, 2002 ;--Am.
2002, Act 693, Eff. Mar. 1, 2003 .
Intentional
Mission
