Are clergy employed by, or who volunteer in, a correctional facility bound by the mandatory staff reporting provision in standard 115.61(a)? Is there any protection for confidential communication with clergy, and is there any special consideration for confidentiality within confessional communication?
In general, staff clergy in confinement facilities are required to report “immediately and according to agency policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual harassment that occurred in a facility, whether or not it is part of the agency; retaliation against inmates or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.” See 28 C.F.R. § 115.61(a).
However, state and local law, and certain religious doctrine include specific requirements for making mandatory and discretionary reports of abuse and, by contrast, requiring that certain inmate-clergy communication remain confidential. Accordingly, certain religious communications between inmates and clergy (e.g., confessionals) may be exempted from the reporting requirements under this standard if the staff clergy is prohibited by law or doctrine from making such a report.
If, by contrast, clergy are not prohibited by law or doctrine to report such information to the facility, then the clergy is required to report under this standard. In such case, clergy should inform a counseled inmate of the clergy’s duty to report, and the limitations of confidentiality, at the initiation of services.
Additionally, agencies implementing the PREA staff reporting requirements under standard 115.61 should do so in a manner consistent with the federal Religious Land Use and Institutionalized Persons Act, the Religious Freedom Restoration Act, and other appropriate authorities.