Frequently Asked Questions about the CARE Act
What does the CARE Act add to the current NY law?
Healthcare providers, teachers, daycare workers, and police officers are well known mandated reporters, but many states include a much wider range of professions in their list of mandated reporters. In 18 states, any person who suspects child abuse or neglect is required to report it.
The CARE Act does two important things:
It amends section 413 of the social services law to add clergy members as mandated reporters of suspected child abuse and maltreatment.
It amends section 413 of the social services law to clarify matters relating to certain privileges.
Why is the CARE Act necessary?
Child sexual abuse is tragically common in religious settings. Sexual abusers benefit from Christian teachings on repentance and forgiveness; if they’re caught, they can simply performatively express remorse, rely on unwise church practices that grant access to all in the name of grace, and then secretly continue their abuse.
While the desire to rehabilitate people is understandable, the reality is that pastors are not trained or qualified to do this. The lack of training and resources coupled with a naive willingness to offer second chances to predatory people leaves our children vulnerable to continued abuse. Discreetly offering endless chances to abusers serves only to protect the reputations of abusers, when the focus of our efforts should be on immediately protecting victims.
Who is considered clergy for the purposes of the CARE Act?
For the CARE Act, a "member of the clergy" is defined in section two of the religious corporations law and also includes “any person responsible for supervising a member of the clergy of a religious institution or responsible for the administration of a religious institution.”
The Religious Corporations law indicates that a minister must be “duly authorized” by a governing body of the denomination/church to “preside over and direct the spiritual affairs of the church or synagogue.”
What is considered a religious institution?
The CARE Act applies to both incorporated and unincorporated religious institutions.
New York’s Religious Corporations Law defines these two categories: an "incorporated church" is a religious corporation created to enable its members to meet for divine worship or other religious observances, while an "unincorporated church" is a congregation, society, or other assemblage of persons who are accustomed to statedly meet for divine worship or other religious observances, without having been incorporated for that purpose.
Doesn’t mandated reporting disproportionately impact poor or BIPOC communities?
BIPOC communities have expressed legitimate concerns about mandated reporting, because people can penalize parents by reporting poverty as neglect. Similarly, systemic racism can lead mandated reporters to interpret cultural differences as neglect.
Religious communities are often quite segregated in their racial and cultural composition; faith leaders are unlikely to inappropriately report parents in their congregation for neglect when they share similar cultural and racial backgrounds.
New York’s system of mandated reporting requires reform, but the issue of clergy as mandated reporters cannot wait for that reform.
What about the clergy/penitent privilege?
The CARE Act includes a loophole for faith leaders to claim privileged communications for information they learn in confession or in confidential disclosures made to them in their professional character as spiritual advisors. This definition is potentially broad enough to encompass not only the Roman Catholic church’s Sacrament of Confession but also other solo disclosures made to Protestant ministers and other faith leaders.
“Unless the person confessing or confiding waives the privilege, a member of the clergy, or other minister of any religion or duly accredited christian science practitioner, shall not be required to make a report as required by paragraph (a) of this subdivision if the confession or confidence was made to him or her in his or her professional character as spiritual advisor.”
However, it is important to note that if a priest learns of child abuse in the confessional but also hears information from someone or observes abuse, that person is required to report.
“When a member of the clergy has reasonable cause to suspect that a child is an abused or maltreated child based upon any information received other than through a confession or confidence made pursuant to paragraph (e) of this subdivision, then such member of the clergy shall promptly make a report as required by paragraph (a) of this subdivision notwithstanding the fact that he or she may have also received a report of abuse or maltreatment through a confession or confidence made pursuant to paragraph (e) of this subdivision.”
Won’t the CARE Act prevent victims from seeking help from their faith leaders?
This question assumes that the child victims are responsible for reporting their abuse and seeking justice. Child safety is the responsibility of adults. Even if a child expresses that they do not want their abuser reported for molesting them, it is still the pastor’s responsibility as an adult to report the abuse to protect that child and all other children in the congregation.
Does this set a new precedent?
No. 28 states currently identify clergy as professionals specifically mandated by law to report known or suspected instances of child abuse or neglect. As more states seek to eliminate loopholes that put children at risk, expanding the list of mandated reporters to include clergy is essential.
Does the CARE Act infringe on First Amendment rights?
No. Most states in the United States have mandated reporting laws and courts have ruled that those mandatory reporting duties do not conflict with First Amendment rights.
The Minnesota Supreme Court ruled this way in 1989: “...we find no merit to the argument that requiring compliance with the statute might somehow interfere with the mandatory reporter's right of free speech by compelling him to espouse a viewpoint with which he may not wish to be associated. The mandatory reporting requirement of the child abuse statute compels no "expression"...but only mandates the reporting of information a requirement not altogether dissimilar from that imposed by the Internal Revenue Code.” State v. Grover (Minnesota 1989)
Most importantly, using the First Amendment to avoid reporting child abuse is an offense against the morality and ethics that our communities expect from religious leaders.
