The Child Abuse and Neglect Reporting Act requires specified mandated reporters, which, since 1997, has included clergy members (i.e., priests and deacons), to report suspected incidents of child abuse or neglect involving persons under the age of 18 years within 36 hours of receiving information on an incident. A mandated reporter’s failure to report such suspected incidents is a misdemeanour under California law. Since 1997, clergy and (arch)dioceses have been reporting suspected incidents of child abuse to the designated law enforcement agencies. As chaptered, A.B. 299 (Pacheco) provides that:
- A mandated reporter may include if he or she deems it appropriate, any nonprivileged documentary evidence relating to the suspected incident of child abuse with their mandated report.
- The “custodian of records of a clergy member” (e.g., Archdiocesan Vicar for Clergy) shall be added to the list of mandated reporters.
- Any clergy member or custodian of records for the clergy member may report, on or before January 1, 2004, a previously unreported incident of child sexual abuse that occurred prior to January 1, 1997, even if at the time of the report, the alleged victim is 18 years of age or older.
- The civil and criminal immunity protections applicable to mandated reporters shall apply to all voluntary reports made by clergy prior to January 1, 2004
- The bill is an urgency bill that became effective September 27, 2002.
As a practical matter, A.B. 299 makes minor substantive changes to the existing mandated reporting system.
The bill is intended to clarify the responsibility of the (arch)diocesan chancery to report suspected incidents of child abuse of which it becomes aware. The California District Attorneys’ Association took the position that, because (arch)diocesan chanceries were already subject to mandated sexual abuse reporting laws, adding “custodians of clergy records” to the mandated reporter statute was merely a restatement of existing law. Indeed, since 1997, (arch)diocesan chanceries have routinely reported suspected incidents of child abuse that were reportable under the Child Abuse and Neglect Reporting Act.
The voluntary documentation and pre-1997 reporting provisions applicable to clergy and custodian-of-record reporters do not impose any additional requirements upon the Church or its ministers.
The statute does provide a grant of civil and criminal immunity to (arch)dioceses that have voluntarily reported pre-1997 incidents of suspected abuse. The intention of the bill was to grant those (arch)dioceses and clergy that have voluntarily worked with local law enforcement agencies (i.e., by disclosing information regarding pre-1997 reports of abuse) civil and criminal immunity from suit pertaining to the making of such disclosures.
As an urgency bill, A.B. 299 became effective September 27, 2002.
The existing Elder Abuse and Dependent Adult Civil Protection Act establishes various procedures for the reporting, investigation, and prosecution of elder and dependent adult abuse. These procedures designate mandated reporters to report known or suspected instances of elder or dependent adult abuse. Under existing law, care custodians of elder or dependent adults and local law enforcement agencies are mandated reporters. A violation of the reporting requirements by a mandated reporter, as defined, is a misdemeanor. A.B. 255 (Zettel) revises the Elder Abuse and Dependent Adult Civil Protection Act, in pertinent part, as follows:
- A.B. 255 adds “clergy members” (i.e., priests and deacons) to the list of mandated elder abuse reporters. “Clergy members” do not include unpaid volunteers whose principal occupation or vocation does not involve active or ordained ministry in a church and who periodically visit elder or dependent adults on behalf of that church.
- A.B. 255 exempts knowledge or reasonable suspicion of elder or dependent adult abuse acquired by a “clergy member” during a “penitential communication” from the mandated reporting requirement under the Act. The legislation defines a “penitential communication” as a communication that is intended to be in confidence, including, but not limited to, a sacramental confession made to a clergy member who, in the course of the discipline or practice of his church, is authorized to hear such communications and, under the discipline tenets, customs, or practices of his church, has a duty to keep those communications secret.
- A.B. 255 limits the incidents of suspected abuse reportable under the Act by clergy, who are not regularly employed on either a full-time or part-time basis in a long-term care facility or who do not have care or custody of an elder or dependent adult, to those incidents or suspicions “reasonably observable or discernible to a reasonably rudent • erson havin•no s ecialized trainin or ex• erience in elder or de endent care”.
Only ordained clergy, specifically priests and deacons, are mandated reporters under the Act. Moreover, clergy have a reporting obligation that is expressly limited to suspected abuse based upon evidence that would be “reasonably observable” to the untrained, lay observer. There is no duty of inquiry or a requirement of specialized training in detecting elder abuse that would apply to clergy. Moreover, parish volunteers, lay ministers, and seminarians engaging in pastoral training would not be mandated reporters under the Act.
Mandated reporters must report known or suspected instances of abuse by telephone (Adult Protective Services Contact List attached) immediately or as soon as practically possible, and by written report (copy of Form attached), sent within two (2) working days. Failure to do so is a misdemeanor punishable by up to six (6) months in jail and/or a fine of up to $1,000. Mandated reports are immune from both civil and criminal liability for any report made. The legislation becomes effective January 1, 2003
As required by law, the Archdiocese is hereby providing those clergy in its service with a complete copy of Section 15630 of the Welfare and Institutions Code. Also attached are copies of the legal definitions of “Elder”, “Dependent Adult”, “Abuse”, etc., as well as a reference sheet outlining the various Risk Factors associated with abuse and neglect.
“Mandated Reporting Party” (See reverse side of form SOC 341: Report of Suspected Dependent Adult/Elder Abuse) Everyone should report all observed, known or suspected incidents of adult abuse, but the following persons are required by law: Any person, compensated or not, who has assumed full or intermittent responsibility for care or custody of an elder or dependent adult, such as; health practitioners, law enforcement, care custodians, and social service employees. Unless otherwise noted all definitions are in Welfare & Institutions Code Section 15610 (a) &15630 (a).
“Elder” Any person who is 65 years of age or older. Penal Code Section 368
“Dependent Adult” Any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished b