State v. Motherwell

Decision Date22 March 1990
Docket NumberNo. 55875-2,55875-2
Citation114 Wn.2d 353,788 P.2d 1066
Parties, 58 USLW 2577 The STATE of Washington, Respondent, v. David MOTHERWELL, E. Scott Hartley and Louis Mensonides, Appellants.
CourtWashington Supreme Court

Ellis & Li, Steven T. McFarland, Daniel J. Ichinaga, Seattle, Ellis & Li, Michael E. Ritchie, Tacoma, for appellants.

Norm Maleng, King County Prosecutor, Katherine Flack and Philip Jans, Deputies, Seattle, for respondent.

DURHAM, Justice.

Three religious counselors were convicted of violating former RCW 26.44.030(1), a statute requiring certain job holders to report incidents of suspected child abuse to governmental authorities. On appeal, all three counselors argue that requiring them to report information they learned in religious counseling sessions violates the establishment and free exercise clauses of the federal and state constitutions. Defendants Motherwell and Mensonides also contend that former RCW 26.44 ("reporting statute") is unconstitutionally overbroad and vague. We reject the constitutional arguments and affirm these convictions. Hartley, an ordained minister, argues an exemption for clergy should be implied into the statute. Because we hold that the statute does exempt clergy when they are counseling in their role as clergy, Hartley's conviction is reversed.


Community Chapel is an evangelical Christian church located in the Seattle area. One of its primary purposes is to provide spiritual counseling to its membership. The counseling is all encompassing, including topics such as problems with marriage, family, interpersonal relationships, and finances. The ultimate goal of each counseling session, however, is "developing and enhancing [counselees'] personal relationships with Jesus Christ".

David Motherwell, E. Scott Hartley and Louis Mensonides are all employed as paid religious counselors at the Community Chapel. In the course of their counseling, each of the three were told about separate incidents of child abuse. A woman told Hartley that her husband had sexually abused her daughter. Hartley discussed the allegations with both her husband and her daughter and attempted to reconcile the family. A second woman told Mensonides that her husband had beaten their two sons, ages 4 and 7, and Mensonides discussed this further with the older son. A third woman told Motherwell that her husband was sexually abusing their 8-year-old daughter and was acting violently towards the entire family. The three counselors did not report these incidents of suspected child abuse to the authorities within the 48-hour period required by the reporting statute.

All three counselors were charged with violating the reporting statute. The defendants joined in a pretrial motion seeking dismissal of the charges. They argued that the reporting statute contains an implied exemption for clergy members, that the statute was unconstitutionally vague and overbroad, and that its application would violate their First Amendment rights. The motion was denied.

The defendants were tried separately, and each was convicted of failing to report the suspected abuse. Each defendant received a deferred sentence coupled with 1 year's probation, and each was ordered to complete a professional education program concerning the ramifications of sexual abuse. In addition, Motherwell was ordered to pay a $500 fine.

All three defendants appealed their convictions to the Court of Appeals, where their cases were consolidated. We accepted certification from the Court of Appeals.


The reporting statute reads in relevant part as follows:

When any practitioner, professional school personnel, registered or licensed nurse, social worker, psychologist, pharmacist, or employee of the department [of social and health services] has reasonable cause to believe that a child or adult dependent person has suffered abuse or neglect, he shall report such incident, or cause a report to be made, to the proper law enforcement agency or to the department as provided in RCW 26.44.040. The report shall be made at the first opportunity, but in no case longer than forty-eight hours after there is reasonable cause to believe that the child or adult has suffered abuse or neglect.

Former RCW 26.44.030(1). 1 Violation of these standards constitutes a gross misdemeanor. Former RCW 26.44.080.

As the statute makes clear, social workers are one of the groups required to report when they suspect that child abuse has occurred. The Legislature defined the term "social worker" in this context as:

anyone engaged in a professional capacity during the regular course of employment in encouraging or promoting the health, welfare, support or education of children, or providing social services to adults or families, whether in an individual capacity, or as an employee or agent of any public or private organization or institution.

Former RCW 26.44.020(8).

In each of the trials conducted below, the finder of fact determined that the defendant met this statutory definition. 2 The defendants have not disputed the sufficiency of the evidence supporting this determination. 3 They also have not challenged the findings that they had reasonable cause to believe that child abuse had occurred and that they failed to report this information in a timely manner to the proper authorities. Accordingly, all the elements of the crime set out in former RCW 26.44.030(1) are satisfied in this case.

Defendant Hartley asks that we imply into the reporting statute an exemption for members of the clergy. All three of the defendants raised the issue of statutory exemption in their pretrial motion. However, during oral argument, counsel for the defendants conceded that Motherwell and Mensonides were not ordained ministers when they first learned of the suspected child abuse. Consequently, the resolution of this issue does not affect their convictions.

In support of his argument for an implied exemption, Hartley points out that prior to 1975 the statute expressly included the clergy among those groups that were required to report suspected child abuse. However, in 1975the Legislature amended the statute by deleting the reference to clergy members. Thus, he contends, the Legislature's act reveals a clear intent to exempt all clergy members from the statute's mandatory reporting provision. 4 We agree that the deletion of "clergy" from the reporting statute would seem to relieve clerics from the reporting mandate. Logically, clergy would not have been removed from the reporting class if the Legislature still intended to include them.

Announcing a rule that requires clergy to report under all circumstances could serve to dissuade parishioners from acknowledging in consultation with their ministers the existence of abuse and seeking a solution to it. Merely concluding that the mandatory reporting requirement does not apply in this instance does not of itself prevent voluntary reporting of suspected or actual abuse to secular authorities. 5

While we agree that the Legislature intended to exempt clergy from the reporting statute, we do not believe that the exemption sweeps as broadly as Hartley suggests. Simply establishing one's status as "clergy" is not enough to trigger the exemption in all circumstances. One must also be functioning in that capacity for the exemption to apply.

Former RCW 26.44.020(11) defines "clergy" as follows:

"Clergy" shall mean any regularly licensed or ordained minister, priest or rabbi of any church or religious denomination whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.

The statute neither defines nor describes the activities of "clergy". Status as a member of the clergy is conferred by license or ordination within one's church or religious denomination. Thus, we hold as a matter of statutory interpretation that members of the clergy counseling their parishioners in the religious context are not subject to the reporting requirement under former RCW 26.44.030. Because defendants Motherwell and Mensonides were not ordained ministers when they first learned of the suspected child abuse, they do not fall within the exemption. Their convictions are affirmed. Because he was an ordained minister at all relevant times, Hartley does fall within the exemption. His conviction is reversed.

Although Motherwell and Mensonides were not ordained ministers, they were acting as religious counselors. In that capacity, they raise a number of constitutional issues. We turn now to those issues.


The first amendment to the United States Constitution states that "Congress shall make no law ... prohibiting the free exercise" of religion. Through the operation of the Fourteenth Amendment, this free exercise clause applies equally to state governments. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352 (1940).

Analysis of free exercise claims consists of two separate inquiries. A claimant first must make a prima facie case showing that his free exercise rights have been infringed. If the requisite showing is made, then the burden of proof shifts to the state to justify the infringement.

The trial court concluded that the reporting statute did not violate the free exercise clause. The court found that although the defendants had established their prima facie case of infringement, the State satisfied its counterburdenbecause the State's interest in protecting the welfare of children was compelling and the State used the least obtrusive means of implementing that interest.

A. The Burden of Showing Infringement

A free exercise claimant must show " 'the coercive effect of the enactment as it operates against him in the practice of his religion.' " Witters v. Commission for the Blind, 112 Wash.2d 363, 371, 771 P.2d 1119 (1989) (Witters II ) (quoting School Dist. v. Schempp, 374...

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