NCJ Number
174991
Journal
Seton Hall Law Review Volume: 28 Issue: 3 Dated: 1998 Pages: 963-999
Date Published
1998
Length
37 pages
Annotation
This article examines whether privileged communications in a professional-client relationship should be a defense for a professional not reporting suspicions of child abuse under mandated reporting statutes.
Abstract
Professionals have invoked two legal principles to escape the mandatory reporting requirements: their duty to keep certain information confidential and their privilege not to disclose confidential information. Whether or not these two principles relieve professionals of their duty to disclose suspected child abuse has not yet been resolved by the courts. The U.S. Supreme Court has recognized both a Federal psychotherapist-patient privilege and the clergy-communicant privilege. These privileges, however, are not absolute. The Court has not yet decided whether the clergy-communicant privilege is required by the Free Exercise Clause. The policy reasons for recognizing professional privileges are compelling, but the policy reasons for abrogating or limiting professional privileges, however, outweigh these concerns. Professionals who are protected by privileges are those likely to obtain data and information that indicates child abuse has and is occurring. Given the prevalence of child abuse and the danger it poses to the lives and healthy development of children, mandatory reporting statutes should abrogate professional privileges, thus requiring professionals to disclose confidential communications. Mandating that professionals report cases of child abuse would ensure, at the very least, that the child would be removed from the abuser's reach and protected from future harm. The protection of children should always outweigh any professional privilege or duty of confidentiality. 276 footnotes