Flip-side News: The Problems that Remain in Delaware's Mandatory Reporting Law

Our opposers claim that we do not comply with Delaware's mandatory reporting laws on child abuse. But it occurred to me that they may not have reported in the case of Carmean White for the reason that they felt that the mother's intent to report it would be enough. We don't know what their discussions were behind closed doors because of the clergy/penitent confidentiality clause, but I think this is simply a case of the elders not being sure of their responsibilities in the matter.

The following analysis of the law is not a justification or defense of the elders' lack of reporting, but is simply a close examination of the mandatory reporting law to highlight potential problems. There are some fundamental problems, gaping holes that do not, in fact, do the job for which they are intended. (Thought that is not to say that Delaware judges would not fairly recognize those deficiencies.) We could see problems in these matters appear in the future. (But not in regard to the Carmean White case.) Please consider the following as I break down the problems with Delaware's mandatory child abuse reporting law.

Read the laws yourself on the State of Delaware's Abuse of Children Act page.

Limits of Delaware's Child Protection Registry

"[§ 902] (4) "Child Protection Registry" or "Registry" means a collection of information as described in subchapter II of this chapter about persons who have been substantiated for abuse or neglect as provided in subchapter II of this chapter or who were substantiated between August 1, 1994, and February 1, 2003."

This is not so much a problem as a protection and confirmation of limits. Note that this registry requires that the accusation be "substantiated", thus the state can't keep a record of unsubstantiated claims and therefore cannot require a record of unsubstantiated claims from any organization. We do keep a record of such unsubstantiated claims, but the second a government demands that list for the purpose of prosecution, justice goes out the window.

Nebulous Definition Open to Interpretation

"§ 903 Reports required. Any person, agency, organization or entity who knows or in good faith suspects child abuse or neglect shall make a report in accordance with § 904 of this title. For purposes of this section, "person" shall include, but shall not be limited to, any physician, any other person in the healing arts including any person licensed to render services in medicine, osteopathy or dentistry, any intern, resident, nurse, school employee, social worker, psychologist, medical examiner, hospital, health care institution, the Medical Society of Delaware or law-enforcement agency. In addition to and not in lieu of reporting to the Division of Family Services, any such person may also give oral or written notification of said knowledge or suspicion to any police officer who is in the presence of such person for the purpose of rendering assistance to the child in question or investigating the cause of the child's injuries or condition."

The problem with § 903 is that "in good faith suspects child abuse" is nebulous. There is no definition in 902 that defines "suspicion". § 902.11 does not require that an organization report the barest suspicion without evidence, but simply allows it without any accountability whatsoever. So, because "suspicion" is left nebulous without definition or reference, then it is left to the judgment of the individual or organization as to what constitutes "suspicion". So for the organization of Jehovah's Witnesses, "suspicion" requires the fulfillment of the 2 witness rule; we will not report people simply because a thought crosses someone's mind. We will advise such a person that if their conscience directs them to report, we will not stop them, but we will not compel reporting based upon unsubstantiated claims.

To reiterate this important fact, we do not suspect until a second witness appears or the crime gets reported and an investigation takes place that brings forth clear evidence. (By that time, it would be too late to require mandatory reporting compliance.) Thus, the nebulousness of this wording leaves the judgment, the definition of "suspicion", up to the one reporting, in this case, the organization. Therefore, outside of reporting, in order to force us to report under this law, a second witness is required according to our own rules for suspicion. But if the law clarified "suspicion" by saying that if a single witness steps forward, suspicion is to be considered imperative, then we can report it based upon the claim of a single witness, but we will never comply to any law that requires us to report an unsubstantiated rumor or because someone thinks a word was spoken in the wrong order.

It is unfortunate that a government has to go through this process of developing laws while victims languish and suffer, but we cannot violate the Scriptures and cannot be held responsible for the law's lack of clarity. We are simply waiting for the laws to catch up with the demands of the people and of justice, but we ourselves are not lawmakers and are not subject to the whims of the people, but to the word of God. (Acts 5:29; Romans 13:1-4) When the law becomes distinct to the point that we must report every claim without nebulous interpretations, then we can, and will happily comply by demanding our members to abide by that law. But we cannot be blamed for the lack of clarity in the law of the land. In this instance, the law changes nothing until the nebulous invocation of "suspicion" is cleared up.

Catholic-centric Religious Bias

"§ 909 Privileged communication not recognized. No legally recognized privilege, except that between attorney and client and that between priest and penitent in a sacramental confession, shall apply to situations involving known or suspected child abuse, neglect, exploitation or abandonment and shall not constitute grounds for failure to report as required by § 903 of this title or to give or accept evidence in any judicial proceeding relating to child abuse or neglect."

The language of this law recognizes confession, but only for religions that have "priests" and "sacraments". Most Christian religions do not have "priests", nor do they call the doctrinal observances "sacraments". Thus, this law, by specifying a specific type of religious appointment and a specific religious language ("sacramental"), specific only to Catholic-based faiths, is violating the second amendment of the U.S. Constitution. The Constitution says that they cannot establish a law that is preferential to any one religion. It is a hypocritical double-standard on the part of the person(s) who authored the law and a failure of discernment on the part of those that approved it. It may be that they had pedophile priests in mind when this was written, but even if that is the case, it still ignored all other religions, as if written in a deafening religious vacuum where only Catholics exist. All someone has to do to determine if this applies is ask, "Are you Catholic?" and if you say "No", then the sanctity of confession doesn't apply.

That said, judges in Delaware do recognize the unconstitutionality of the clause and therefore interpret it more broadly than its language currently allows because of a case involving a politician in the 1980's. That said, it does still need to be modified to reflect that judgment.

Confession Not Recognized in Carmean White Case for Reason

In the Carmean White case, the judge determined that neither Carmean White nor the 14-year-old boy came to the congregation as "penitents" due to the fact that the boy's mother brought him to the congregation and Carmean was called before the congregation. That is a valid loophole even in the scriptures, so did not violate privilege in any sense when they required the information regarding that case, and no mention is made of the congregation destroying records regarding it, which means that the state used proper methods and specific subpoenas to acquire the information from their meetings regarding the event.

It should be noted that the 14-year-old kid's own responsibility in the Carmean White case, and lack of repentance was highlighted by both the judge and the reporter, saying:

"Also, the court found the juvenile’s subsequent excommunication indicated he might not have willingly met with the elders, and did not consider the meeting as a form of repentance as part of absolution and a 'sacramental confession.'"

Thus, the court found that the 14-year-old was aware of his actions and did not hold being dragged to the congregation by his mother to discuss the matter with the elders to be a sacred confession. They also did not provide any condemnation to the congregation for exercising excommunication toward the kid. (What we call "disfellowshiping".) They did not seem to view the kid as a "victim", and neither, apparently, did the kid.

I think this highlight's the judge's fair and impartial deliberation in the case. Note that the above quote indicates that neither the meeting minutes nor testimonies of the elders regarding the elder's meeting behind closed doors in deliberation of the case was demanded by the judge, but good judgment in all but the reporting was assumed in good faith.

Confusion Regarding Who Reports?

The Carmean White case may highlight some confusion as to what is required. Though the law technically requires the report regardless of who or how many report it in § 903, (shown above,) apparently all who have knowledge of the case are required to report it, so even if one person reports it, all other people involved in the case need to report it as well, as apparently there were several other institutions involved that also did not report it, but cases against them were dropped. (Preferential prosecution?) But the problem is that the law does not come out and say that everyone involved with the case is required to report it, but only that if a single entity learns of it, they must report it. So this may be why the congregation did not report it. (By the way, the case is simply over whether the congregation complied with the mandatory reporting law.) There does not appear to have been any effort by the elders to cover it up, but may simply have thought that the mother's reporting it would be enough.

Plug the Holes

If you are wondering how it is that Deleware might not get compliance with the mandatory reporting law, this is it. There are holes that need to be plugged. If you want us to report accusations of child abuse based upon a single accusation, then the state of Delaware needs to be more diligent in its laws concerning mandatory reporting. And if you want to make sure everyone involved with a case reports, then it should be made clear that everyone involved in the case needs to report it. By my estimation, their law was nothing more than a half-measure. If they want the law to mean anything, then they are going to have to plug the holes and shore up the wording.

That said, it is my opinion that Delaware's judges have judged fairly in the Carmean White case and the case involving the congregation's responsibilities. Clearer language in the law would make sure such failure on the part of any institution would not happen again.
Note: I removed the section regarding "Good Faith", as it is really not an issue given it is difficult to hide malice in such circumstances.


Comments

Robert said…
CJ,

Is this something our lawyers would catch and bring to the lawmaker's attention?

Bringing these holes to their attention can go a long way in debunking the lies that we don't want to comply.
Dismythed said…
A lawyer wouldn't be worth their salt if they couldn't find those simple flaws. However, it comes down to convincing a judge to conform to the letter of the law instead of the spirit of the law. It's easier to get an appellate judge to follow the letter of the law than a trial judge because it is the appellate judge's job to focus on the letter of the law.
Dismythed said…
I actually found an unbiased report on the case that prompted this post. So I'm going to study it more closely. I think the lawyers may actually have missed something.
Dismythed said…
Alright, after analysis of the report, the Catholic-centric bias is not being held due to an earlier case in the eighties which already highlighted the unconstitutionality of that part of the law.

The case held because of the fact that the defendant admitted to the affair, but the congregation did not report that admission.

The list was not asked for, so the first point is not coming into question at this time. And "good faith" did not apply given that the defendant admitted. So there was no abuse of that part of the law in this case.

Ultimately, I doubt the organization will appeal any further. There would just be no point to it. It is already a low fine to pay and there really would be just no way to win, given the circumstances.

This post was about the errors in the law that need correction, not about whether the organization is justified in fighting the particular case that prompted it.

That congregation was indeed wrong for not reporting it according to the law. But I should remind people that the congregation got its direction from the organization's lawyers, not from the governing body. So don't even try to claim some conspiracy. Lawyers do what lawyers do and they make mistakes just as the elders do. The lawyers don't give direction by committee. That's assuming the lawyers went through the proper channels and followed the direction they were given.
Dismythed said…
I'd like to also note that all the reports call the incident a "relationship", so it was not technically child molestation. It was a matter of a teacher and someone who, morally and religiously, should know better. There is no question as to her guilt, but the "victim" does not appear to feel victimized. Also, apparently the boy and his mother were apparently members of the congregation. So, all said, I think this is a cut and dried case and there is only one point of blame being not reporting the incident, but they have done nothing to hide the matter or protect the defendant. They have only sought to defended themselves against the fine and I doubt they're going to fight it further.
Robert Murphey said…
This is an example of why the laws need to be clear.

However, one could argue that in order to protect the congregation and avoid needless litigation, just report any accusations that make the ears of the elders, period, no matter if they can be substantiated or not.

This sounds logical, but it really isn't.

Simply put, the Elders would not be doing their jobs. They would effectively offload their responsibility to protect the congregation onto the secular government in their state.

This would be unacceptable.
Dismythed said…
Or, rather, it would relieve the various states of their responsibility to secure and develop the law.
Robert said…
Yep. "Why plug the holes when all accusations are reported anyway?". This reasoning could follow.

You know the question I am asking now when someone brings the issues of elders reporting?

"Where are the parents?"



Dismythed said…
Yes, in a state without mandatory reporting, that is precisely the question that needs asking. For all the instruction we give in the publications, we do not ask parents to not go to authorities and the elders are specifically told not to instruct parents not to go to the police. In fact, in a Watching the World blurb in a Watchtower from the 80's, I discovered that it did indeed recommend calling the police in a matter of child molestation.
Dismythed said…
Robert: I updated the section about confession with the information you brought to my attention in email. Thanks for that.
Robert said…
Note what we wrote in 1962:

"Hence the Christian congregation cannot protect any of its members if they steal, smuggle, commit bigamy, murder, libel, defraud, and so forth. The congregation must release such guilty members to punishment by worldly authorities. Since the guilty break the laws of the land and thus oppose the “authority,” they are taking a stand against God’s arrangement."

The Watchtower, November 15, 1962 p693, paragraph 9.
Dismythed said…
By the way, I said the Watching the World piece was in a Watchtower in the eighties, but I meant an Awake! magazine and was actually in the December 8, 2004 Awake!
Robert said…
Yeah, and many would criticize us for using "satan's system" while advocating that we institute mandatory reporting laws thus using "satan's system".

A Richmond said…
I have an aunt who is a Witness who has taken me to a couple of meetings. I stumbled onto this site while doing some research on another one. Interesting article to say the least, even if I am not sure of all the details you defend.

While I cannot speak about the particulars regarding the above case, I do know that a slight misunderstanding regarding "sacramental confession" has been made in your article. It might help clear something up for you if I mention this, so I will be brief.

"Sacramental confession" privilege does not refer to merely the Catholic sacrament of Reconciliation between a literal Catholic priest and someone confessing their sins (known as the penitent in this rite). Instead the privilege is extended to any religious situation, Catholic or Protestant, Christian or otherwise where a subject freely confesses their actions to a minister, disclosing an act for sole purpose of having it mercifully dismissed.

For the privilege to be extended the confessing person must be required to disclose what is otherwise private information due to the fact that the subject matter would be incapable of being treated as the focus for the forgiveness that is being sought by the penitent.

While it is true that the way the law is written uses language that seems to be limited to what many view as a Roman Catholic rite, in reality this sacrament is practiced in many other churches, including some Lutheran ones. Even when the confession is not considered "sacramental," the privilege only exists when there is a penitent or freely confessing subject. One who does not confess freely is not a penitent.

It should also be mentioned that regardless of such a situation of lawfully recognized "privilege," that the State can still demand the seal of confession be broken, even in regard to a Catholic sacramental confession, if the confessed actions involve a crime that could not be justly dealt with otherwise or may still be victimizing others and thus breaking the law. Ministers of various religions, including Catholic priests, have at times chosen to be found in contempt of court in a situation when this demand might be incorrectly applied, but in many similar situations sacramental "forgiveness" has been withheld by the minister from the penitent until they performed an act of penance which included turning themselves in to proper authority.

The privilege was not extended in this case because there was neither a freely acting penitent or proof of a "religious act of penance." Excommunication after a confession can at times immediately disqualifiy an act of confession for privilege sake becomes the freedom of the penitent is not present where an organization demands or requires members to confess in order to rid their ranks of certain individuals who engage in certain behaviors. The confessing subject did not disclose a secret for the sole purpose of being freed from their sin in mercy but had to as part of organizational demands.
Dismythed said…
I thought I made that clear, but I see now that I didn't specify "language" in that part. It has been corrected now. A previous case already overturned the narrow language (And yes, the courts had attempted to use that narrow language to apply only to the Catholics,) so that now it must be interpreted to apply to any religion with a confessional arrangement, but it did not apply by default because the language was originally strictly Catholic.
Anonymous said…
Hi , I'm from Brazil and seeking answers. My question is simple. If the elders are not told not to report cases to the authorities , so why that 1006 cases were hidden in Australia?

Thanks
Dismythed said…
"Hidden" indicates intent to hide. "Not reporting" is not the same as "hiding". I already covered why they didn't report above. Australia has no mandatory reporting laws. Individuals involved with the cases are free to report if they choose. The organization has only 2 obligations: 1) Tend to the spiritual welfare of those involved with the case on both sides in line with the Scriptures, and 2) fulfill the letter of the law of the land as long as it does not conflict with God's word. If Australia wants to get us to report as an organization, they will have to make laws doing it, without all the glaring holes in Delaware's laws, and then we will comply. We are not a policing agency, but a religious organization that tends to spiritual things.

You should review my Flip-side News post, "Response to the Royal Commission of Australia"
Robert said…
CJ pretty much covered it. "Hiding" something would be directives from the organization telling victims not to report. By them being free to do so without reprisal basically shoots that down.

I mean, if victims are free to report without congregation sactions, how can the organization be hiding anything?

This is the question you need to consider.


Anonymous said…
Hello, I want to make clear that I am not an opposer, I am a student of the Bible, but these Questions About pedophilia HAS left me on the back foot for the organization. I seek answers, but in Brazil there are no sites or siblings with enough information to enlighten me on this subject , so I have to resort to websites in other languages.

Do you own any e-mail so I can contact to take some questions on this subject ?
Dismythed said…
News reports rely primarily on our apostates or are by our apostates, and our apostates are notorious liars and exaggerators. So anything you read that is not from the organization is likely to be twisted beyond recognition and spun so as to implant into the reader's mind what they're supposed to think about information instead of simply presenting the information and letting the reader make up their own mind. If you want to know what the organization's policies are, then look to the organization, not people who have chosen to oppose us.

Just leave your email here and I won't approve the comment. I'll contact you.
Robert said…
Well, its commendable that you're seeking answers.

Of course, its understandable that news reports would disturb you, as that's the reason why apostates rely on them. They influence those reports in an effort to deceive people.

Fact is, we want you asking questions about how we handle child abuse so we can answer them. Apostates and opposers don't want you asking us.

That should tell you who wishes to hide things as well.