Advocacy Confidential – August 2024

By Carol Schrader
Senior Attorney, National Training and Consultation, Victim Rights Law Center

Dear Fierce¹ Survivors, Advocates, and Allies, 

Welcome back to my blog series – Advocacy Confidential. Where we sip tea² and muse together about the role of confidentiality in our violence abolition movement. 

I hope you are experiencing some of the joie de vivre of easy summer living. I’m about to head to the Carolina Coast with friends I met when I was at divinity school.³ I once stayed with one of these friends, “Chaplain Agatha Christie,” after an in-person training in Columbia, SC. We got deep into the question of whether or not she would be a mandatory reporter of abuse if a student for whom she provided pastoral care was a minor. Would priest-penitent privilege block such a report?⁴ 

Mandatory reporting is established by policies and laws that require certain people to report specific harms, typically abuse or neglect, to government agencies and/or the police. Mandatory reporting can require professionals to disclose information that would have been confidential but for the requirement that they share it. Those of you who provide victim services funded by the Office on Violence Against Women know that you may not share personally identifying information of victims who sought your services unless you have a VAWA-compliant release, or a statute, court order, or case law requires you to share the information. Mandatory reporting can fall under that statutory mandate exception. 

Mandatory reporting is rooted in the idea that we take care of vulnerable members of our community: Children, elders, and adults with certain disabilities, for example. However, we know that mandatory reporting can have a chilling effect on people who need our services.⁵ How do we separate the wheat from the chaff or the sheep from the goats, so to speak, with our approach to mandatory reporting? I think, fierce reader, that we need to be clear about our statutory mandatory reporting obligations, honor them, and take care to not over-report. 

VRLC has mandatory reporting flowchart for child abuse that can easily be used to consider other mandatory reporting requirements.⁶ This tool presents the key questions for OVW-funded victim service providers, at least, when analyzing a mandatory reporting obligation: 1. Are you a mandatory reporter? 2. Is the survivor someone whose abuse must be reported? 3. Has the survivor experienced “child abuse” as your statute defines it? 4. Are you exempt from reporting in this case? And 5. What information must you include with your report? Often we may determine that we’re on the list of reporters and don’t get to the last 4 questions. All of them warrant our attention. 

If you need help answering these mandatory reporting questions, please reach out to VRLC’s TA team at [email protected]. 

What do you think? How do you approach mandatory reporting?  What other confidentiality issues would you like us to consider together? Please join the conversation. And when you write in or reach out, feel free to use a pseudonym that’s powerful or fun or whatever you want it to be. Or, like Sam, skip the pseudonym. 

Yours, 

Carol Confidential 

¹ I asked my older child, Sam (he declined a pseudonym), to review this post for me. He asked why I have “Fierce” in the salutation. Why didn’t I just address the post to “Survivors, Advocates, and Allies?” He added that “fierce is hard,” “sometimes we can’t be fierce – it’s just one extra thing” when we don’t have the capacity for it. Truth.  And if we are surviving, advocating, and being an ally, fierce is our baseline. We are fierce. “Fierce” may be redundant; consider it poetic license. (And a contrast to “Gentle Reader.”) 

² With this post, I like to imagine your beverages are iced!

³ That’s a missive for another day.

⁴ If you’ve wondered about such things, you should know that VRLC has jurisdiction-specific FAQs on clergy confidentiality that resulted from this conversation with Chaplain A.C. Our TA team thinks that as the Title IX Regulations shift between administrations and, at the moment, legal challenges, sometimes the only professionals on campus who can have privileged conversations with students, et al., may be chaplains, campus ministers, or other clergy on or near campus. You can find these Clergy FAQs for your jurisdiction, and other practice resources here.  

⁵ Findings from a report done in conjunction with the National Domestic Violence hotline and published in 2019 indicated that mandatory reporting laws “reduce help-seeking for over a third of survivors, provider warnings about MR often reduce survivors’ ability to receive the support they seek, and reports when triggered make the situation worse for most survivors. Significant differences emerged by gender identity and race/ethnicity, emphasizing unique contexts for trans and gender non-conforming survivors and survivors of color.” Although this study focused on intimate partner violence, we might expect similar outcomes for non-intimate partner violence. See, too, “Mandatory Reporting Is Not Neutral.”  

⁶ The flowchart is on Page 13 of the Minors Privacy Toolkit.  

Carol Confidential (nee Schrader) (she/her) is a Senior Attorney on Victim Rights Law Center’s national training and consultation team. She helps attorneys and other victim service providers across the country provide legal advocacy for and protect the confidentiality of survivors of sexual assault, dating and domestic violence, and stalking. She lives in the Pacific Northwest. She enjoys her hiking and book groups, culinary adventures, yoga, and quiet evenings at home.