Abuse:Clergy malpractice I - Obeying a rabbi

One of the critical issues in dealing with abuse is the legal status of the advice or guidance of a rabbi not to call the police in abuse cases - especially when this is a violation of mandated reporting. Does this constitute clergy malpractice in the sense of a doctor, lawyer or psychologist giving bad advise? Who is liable for a person not reporting abuse when a rabbi said not to. As a general rule it seems that a clergyman is not held responsible but rather the person who acts on his advice. This is especially true when the person acting on the clergyman's advice is an adult. See Rabbi Mark Dratch's article

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A breach of the duty owed by a member of the clergy (e.g., trust, loyalty, confidentiality, guidance) that results in harm or loss to his or her parishioner. A claim for clergy malpractice asserts that a member of the clergy should be held liable for professional misconduct or an unreasonable lack of competence in his or her capacity as a religious leader and counselor.

Generally speaking, most clergy malpractice cases are couched in terms of TORT LAW as matters of alleged NEGLIGENCE, abuse of authority or power, inappropriate conduct, breach of confidentiality and trust, or incompetence. The claims assert that members of the clergy owe the same kind of duty to persons they serve as doctors owe to patients or lawyers owe to clients. Most licensed professionals in the secular world, including physicians, lawyers, and psychologists, may be held liable for negligence. Clergy members, however, are not licensed as professional counselors, making them accountable only to religious standards in many jurisdictions. Moreover, because the practice (or "free exercise") of religion is protected by the Constitution, which, under the FIRST AMENDMENT, requires separation of church and state, courts remain reluctant to apply secular laws to what they perceive as religious matters. For these and other social reasons, claims of clergy malpractice historically were relatively fruitless, with courts consistently ruling in favor of defendants. In the late 1990s, however, a rising number of sexual misconduct allegations surfaced in the Roman Catholic Church, which resulted in courts taking a closer look at the viability of such a legal premise.