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.