This past September Maine became one of many states that require clergy to report signs of possible child abuse or neglect that they may learn about in the course of their work. However, according to an article in the Portland Press Herald, "the law's effectiveness is yet to be tested, in part because of protections it gives to 'confidential communications,' as well as a vague definition of who should be considered a member of the clergy. Exempted from the reporting requirement is information obtained in confidential discussions between clergy and parishioners."
The uncertainty surrounding reporting laws may not only reflect complex relations between church and state; they may also signal uncertainty about the practice of confidentiality in the church. To be sure, confidentiality is clearly defined in some churches. In Roman Catholic churches, for instance, the sacred act of confession is held as absolutely confidential. Nothing disclosed to a priest in the act of confession can be disclosed by the priest to anyone else. Such ecclesial definition has developed over a long period of time.
The existence of such precedent within the church is responsible, in large part, for the exemptions allowed in mandated reporting laws. However, many clergy work in churches that give them little guidance about confidentiality. In such cases, it is largely up to each minister to decide which approach to confidentiality is morally, ethically and theologically faithful.
Conflict can occur both within a congregation and in relation to secular laws governing mandated reporting when the clergyperson's practice of confidentiality is significantly different from members' expectations. Such conflict need not always involve dramatic and acute cases such as child abuse. The occasion can be as simple and as chronic as Mrs. Smith's reprimanding me because I failed to mention from the pulpit that her husband was in the hospital, even though she knew her husband had asked me to say nothing about it. She believes that such matters should be disclosed to the congregation that all may pray for the afflicted, and that it is the pastor's responsibility to make such public disclosures. Thus, she didn't say anything during the portion of the service in which people share their joys and concerns; nor did she ask me ahead of time to mention her husband's condition.
How do clergy judge what is confidential and what is not in their day-to-day ministry? Who decides what is confidential? What happens when definitions conflict both in and out of the church? What kind of practice of confidentiality helps build the community of Christ?
The obvious place to begin answering these questions is math church regulations. Sometimes church rules clearly define who is clergy and under what circumstances disclosures arc deemed confidential. Courts of law often rely upon such definitions in settling cases. However, without a clear ecclesiastical discipline, the following factors become impor-tant in deciding what is confidential: the setting in which the information is disclosed, the type of information disclosed, the purpose of disclosing the information, and to whom the information is disclosed.
Setting: The key question about the setting of a disclosure is whether it is public or private. The courts have generally ruled that information disclosed in a setting where others have actually overheard or might reasonably overhear the conversation is information given without an intent to have confidentiality. For instance, the clergyperson who is told at coffee hour by Mr. White that Mr. White held up a bank could not claim in court that such information was given in confidence. However, were such information conveyed in a conversation in a hospital room, during which no one else entered the room, one could argue that the exchange was intended to be confidential. Similarly, meeting in the pastor's office with the door closed establishes the privacy necessary to claim confidentiality. …