The attorney-client privilege is one of the cornerstones of our profession. Without it, our ability to offer advice, represent our clients and, very importantly, be effective advocates would be seriously compromised. But should the same privilege be extended to the relationship of penitent-clergy in cases of child abuse?

Although every state has a statute aimed at preventing and punishing child abuse, most states' statutes regarding child abuse do not classify clergy as mandated reporters. In the Midwest, only Illinois currently includes clergy as those professionals specifically mandated to report known or suspected instances of child abuse or neglect. With a recent amendment to the Abused and Neglected Child Reporting Act, Illinois joins approximately 21 states in making clergy mandated reporters. The statute does not specify whether the information must have come through a confession, counseling session or through a third party.

Traditionally statutes require that mental and health care professionals, social workers, education/child care providers and law enforcement professionals report instances of known or suspected child abuse. The reasoning being that these professionals are in proximity to children and are trained to identify indications of child abuse. The addition of clergy as mandated reporters recognizes that the clergy may also become privy to similar information.

Opponents of making clergy mandated reporters argue that the confidentiality of pastoral communications is a fundamental doctrine of some faiths and that mandating clergy to report the content of such communications undermines the role of the clergy as spiritual advisors, counselors and healers. The secrecy of confessions is a doctrine long established and followed by many faiths. Because many religions do not set aside formal occasions for private confessions, opponents argue that much of what is disclosed to a clergy during "counseling sessions" should also be protected. Lastly, if the clergy is mandated to report, persons will no longer seek help or counseling for fear of prosecution.

Supporters of including clergy as mandated reporters argue that clergy are in a unique situation wherein either the perpetrator or the victim may approach them in hope of help or counseling. By mandating that they report, the clergy no longer have to struggle with the notion of disclosing penitent-clergy communications obtained either through a confession or resulting out of counseling sessions. Furthermore, supporters consider child abuse a heinous crime and preventing it an overriding state interest.

Although Illinois specifically identifies clergy as mandated reporters, it also allows them to claim that the communication is privileged under the Illinois Code of Civil Procedure. Claiming the privilege effectively protects them from having to disclose to any administrative body or agency a confession or admission of child abuse obtained through a confession or counseling session.

Illinois case law has not grappled with the argument that requiring the clergy to divulge information interferes with the clergy's First Amendment Right to the free exercise of religion. By placing the burden of reporting on the clergy, one can argue that the state is unconstitutionally interfering with his or her right to free exercise of religion by encroaching on the fundamental principle of the penitent-clergy privilege. Alternatively, if granting such communications privilege rests in the desire to protect religious practices, an argument can be made that these laws violate the establishment clause. One must also consider the privacy issues of the family involved in these disruptive investigations.

Until these arguments are addressed, the privilege is vulnerable to changes in mores and societal views and public confidence, which has of late been eroded, in the clergy. By granting the privilege under state statute without Constitutional guidance, states have created a confusing and at times contradictory stance on this privilege.

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Maria M. Ramirez Strohmeier is an associate at Montes & Associates in Chicago, where she concentrates on corporate and commercial law.