concurring in part and dissenting in part. While I agree with the majority that the reporting statute, RSA 169-C:29 (2002), does not give rise to a civil remedy for its violation, and that there was no fiduciary relationship between the plaintiffs and the defendants, I disagree with its conclusion that defendant Wilton Congregation of Jehovah’s Witnesses (Wilton Congregation) had no common law duty towards the plaintiffs. I, therefore, respectfully dissent from that part of the majority opinion.
In Walls v. Oxford Management Co., 137 N.H. 653, 658 (1993), we elucidated four exceptions to the general rule that individuals are not responsible for the criminal attacks of others: (1) when there is a special relationship; (2) where the defendant creates an especial temptation and opportunity for criminal misconduct, also called the special circumstances exception, see Remsburg v. Docusearch, 149 N.H. 148, 154 (2003); (3) the existence of overriding foreseeability; and (4) when one voluntarily assumes the duty. Walls, 137 N.H. at 658-59. Although we rejected the prospect of liability based upon the overriding foreseeability exception in that case, id. at 659, we arguably relied upon it in Iannelli v. Burger King Corp., 145 N.H. 190, 194 (2000), where we found a commercial establishment had a duty to protect a customer from the criminal conduct of a group of patrons, in this case assault, because the group’s behavior leading up to the assault created a foreseeable risk of harm.
In Dupont v. Aavid Thermal Technologies, 147 N.H. 706, 709 (2002), we listed only three exceptions to the general rule that a private citizen has no duty to protect others from the criminal attacks of third parties, excluding the overriding foreseeability exception, though we did so while citing the Iannelli case, which arguably relied upon that exception. Most recently, in Remsburg v. Docusearch, we again did not specifically address the overriding foreseeability exception, but explained that the general rule *417was “grounded in the fundamental unfairness of holding private citizens responsible for the unanticipated acts of third parties----” Remsburg, 149 N.H. at 154 (emphasis added).
The decision in Remsburg merges what once was the overriding foreseeability exception with the special circumstances exception, which includes situations where there is an especial temptation and opportunity for criminal misconduct brought about by the defendant. This exception follows from the rule that a party who realizes or should realize that his conduct has created a condition which involves an unreasonable risk of harm to another has a duty to exercise reasonable care to prevent that risk from occurring. “Where the defendant’s conduct has created an unreasonable risk of criminal misconduct, a duty is owed to those foreseeably endangered.” Id. (emphasis added).
The status of the overriding foreseeability exception in our case law is not clear. I note, however, that the foreseeability of harm has at least been incorporated into our liability analysis through the special circumstances exception. See Remsburg, 149 N.H. at 154. Other courts have also used foreseeability as a factor in a separate analysis to determine the existence of a duty. See, e.g., Tarasoff v. Regents of University of California, 551 P.2d 334, 342 (Cal. 1976); Juarez v. Boy Scouts of America, Inc., 97 Cal. Rptr. 2d 12, 29 (Ct. App. 2000); Doe v. Franklin, 930 S.W.3d 921, 927 (Tex. App. 1996); Babula v. Robertson, 536 N.W.2d 834, 837 (Mich. Ct. App. 1995); Solano v. Goff, 985 P.2d 53, 54 (Colo. Ct. App. 1999); McGlynn v. Newark Parking Authority, 432 A.2d 99, 104 (N.J. 1981); see also Restatement (Second) Of Torts § 302 B at 88 (1965). Thus, the rule that duty and foreseeability are inextricably bound together, Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304 (1992), retains some force even when we are faced with criminal acts perpetrated by third parties.
We review motions to dismiss to determine if the plaintiff’s allegations are reasonably susceptible of a construction that would permit recovery. We then engage in a threshold inquiry that tests the facts in the writ against the applicable law. In so doing, we assume the truth of all well-pleaded facts alleged by the plaintiff, construing all inferences in the light most favorable to the plaintiff. Dupont, 147 N.H. at 709.
The plaintiffs allege the following facts. Holly Berry was born on December 13,1978; she was physically and sexually abused by Paul Berry from 1983 until 1989. Heather Berry was born on May 27, 1982; she was physically and sexually abused by Paul Berry between the ages of three and six.
The Jehovah’s Witness faith encourages its members to report problems among members of the congregation to elders within the organization, and not to secular authorities. During the period when the physical and sexual *418abuse was occurring, Sara Poisson made ten to twelve reports to the elders of the Wilton Congregation that her husband was abusing her daughters, the plaintiffs. The elders scheduled meetings with Poisson and Paul Berry to counsel them about the problems they were experiencing in their marriage. Berry was present at the meetings. There were always two elders at the meetings. The elders did not report the ongoing abuse the plaintiffs were suffering, and instructed Poisson not to report it. They told her to “be silent about the abuse and to be a better wife.”
Based upon these allegations, I believe that defendant Wilton Congregation had reason to anticipate Berry’s criminal conduct and that it created a situation facilitating Berry’s conduct. Accordingly, I find a duty based upon the special circumstances exception. As noted above, this exception includes when the opportunity for criminal misconduct is brought about by the actions or inactions of the defendant. Iannelli, 145 N.H. at 194. The exact occurrence or precise injuries need not have been foreseeable, id., though in this case they arguably were. The Wilton Congregation was aware of the harm being perpetrated on the plaintiffs through repeated reports. Due to the number of reports over the years, it was also aware that the abuse was ongoing.
The majority notes: “There is no allegation that the elders acted in any way other than by providing spiritual guidance and scriptural advice, at the request of the plaintiffs’ mother.” The majority’s analysis of the special circumstances exception does not address the plaintiffs’ allegation that the elders of the Wilton Congregation instructed Poisson not to report the abuse to secular authorities. I find no meaningful difference, however, between the facts alleged in this case, and the facts of the special circumstances cases relied upon by the majority. See Remsburg, 149 N.H. at 154-55 (risk of criminal misconduct, including stalking and identity theft, sufficiently foreseeable, therefore special circumstances imposed duty on private investigator to exercise reasonable care in disclosing third party’s information to client); Walls, 137 N.H. at 659 (duty to protect tenants from criminal attack may arise when landlord has created or is responsible for a known defective condition that foreseeably enhanced risk of attack). The majority characterizes these cases as relying upon the element of control. I do not find this retrospective statement of the law persuasive.
In this case, the elders of defendant Wilton Congregation not only created an opportunity for Paul Berry to continue abusing the plaintiffs precisely because of their inaction, but actively facilitated the continuing abuse by their instruction to Poisson not to act. Further, the elders instructed Poisson not to report the abuse in the presence of the abuser himself. It is not unreasonable to infer that Berry continued abusing the *419plaintiffs, his daughters, safe in the knowledge that Poisson was not going to report him to secular authorities.
The elders of the Wilton Congregation were aware of Poisson’s understanding of the policy against seeking outside help. Yet, despite the numerous reports, made at different times to different elders of the Wilton Congregation, none of them advised her to seek help from secular authorities, and at least some of them instructed her not to seek such help, effectively allowing Paul Berry to continue his pattern of abuse. Because the harm done to the plaintiffs was foreseeable to the Wilton Congregation, and facilitated both by its action and inaction, the Wilton Congregation had a duty to protect the plaintiffs from it.
The majority fears heading down a slippery slope where friends and relatives will face tort liability for giving bad advice. This is an unusual case, however, and I would decide it based upon its facts alone. The facts creating the duty in this case were the elders’ awareness of Poisson’s religious beliefs, the fact that her husband was the one abusing the children, the elders’ knowledge of the abuse over the years, their continued failure to counsel her to seek help, their specific instruction to her not to seek help when she relied upon their guidance and the fact that they did so in Berry’s presence. These special circumstances created an opportunity for Berry to continue abusing the plaintiffs.
Children who are victims of physical and sexual abuse are limited in their ability to protect themselves, especially when their abuser is a parent. The legislature has recognized this fact, and has attached criminal liability to any person who fails to report suspected child abuse, no matter what their connection to the child, if any. See RSA 169-C:29. Recognizing a common law duty to protect children through counseling a parent to seek help, would accurately reflect our collective concern for the vulnerable class of child abuse victims.
The trial court found that, to the extent a common law duty may have existed, the religious privilege barred the defendants from disclosing the abuse. See N.H. R. Ev. 505. The trial court concluded, therefore, that any allegations that the defendants breached their duty by failing to report or disclose the abuse could not stand. The majority does not address whether the defendants were barred from disclosing the abuse by the religious privilege, and I decline to address it as well because I find that Wilton Congregation’s duty could have been satisfied simply by counseling Poisson to report the abuse to secular authorities.
The plaintiffs also claimed, in the aggregate, that the Wilton Congregation was negligent in failing to instruct Poisson to seek help and treatment for the plaintiffs outside the Congregation. The trial court classified these remaining claims as claims for negligent counseling. The *420trial court found that investigation into these claims was barred by the First Amendment of the Federal Constitution, concluding that such investigation would result in “excessive government entanglement with religion.”
I disagree with the trial court’s characterization of this inquiry. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof____” U.S. Const, amend. I. It is applicable to the States through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296,303 (1940). “[T]he Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.” Id. at 303-04. “[T]he prohibition extends to common law provisions as well as statutory enactments.” Smith v. O’Connell, 986 F. Supp. 73,77 (D.R.1.1997).
Courts around the country are split on whether civil suits against religious entities or their officials are permitted under the First Amendment. These suits have been brought under many theories, including breach of fiduciary duty, common law negligence, negligent supervision and hiring, and negligent counseling. See Malicki v. Doe, 814 So. 2d 347, 357-58 (Fla. 2002) (summarizing litigation from around the country); Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1256-61 (Miss. 2005) (listing state and federal -court decisions on either side of the issue).
The defendants make no arguments specific to the State Constitution, but rely upon the Federal Constitution alone. The United States Supreme Court’s cases concerning the Free Exercise Clause
establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice____ Neutrality and general applicability are interrelated____A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531-32 (1993) (citation omitted).
The Supreme Court has never held that “when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be- free from governmental regulation.” Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872, 882 (1990). “[I]n order to launch a free exercise challenge, it is necessary to *421show the coercive effect of the enactment as it operates against the individual in the practice of his religion.” Malicki, 814 So. 2d at 354 (quotation and brackets omitted). “A law establishing standards of conduct does not implicate the free exercise clause unless adherence to those standards interferes with some religious activity.” O’Connell, 986 F. Supp. at 78.
“The Free Exercise Clause is violated only when laws actually conflict with a religion’s specific doctrines and therefore impose penalties either for engaging in religiously motivated conduct or for refusing to engage in religiously prohibited conduct.” Fortin v. Roman Catholic Bishop of Portland, 871 A.2d 1208, 1227 (Me. 2005) (quotation omitted; emphasis added). The inquiry “asks whether government has placed a substantial burden on the observation of a central religious belief or practice ....” Swaggart Ministries v. Cal. Bd. of Equalization, 493 U.S. 378, 384-85 (1990) (quotation omitted; emphasis added). The entity claiming First Amendment protection must identify “a specific religious doctrine or practice that will be burdened” by pursuit of the lawsuit. Fortin, 871 A.2d at 1226.
The defendants in this case have not identified a specific religious doctrine or practice that would be burdened by a recognition of a common law duty to protect the plaintiffs. The defendants have not alleged that they were forbidden from counseling Poisson to seek outside help, or even that the Jehovah’s Witness faith prohibits its members from seeking outside help. Therefore, I would hold that the Free Exercise Clause of the First Amendment does not bar the plaintiffs’ lawsuit, as no central tenet of the faith would be burdened by a finding of a common law duty.
Further, “[a] law, legislatively or judicially created, that would regulate or prevent religiously motivated conduct does not violate the First Amendment if the State’s interests in the law’s enforcement outweighs the burden that the law imposes on the free exercise of religion.” Alberts v. Devine, 479 N.E.2d 113, 123 (Mass. 1985). Even if the recognition of a duty to counsel Poisson to seek help from the authorities violated a tenet of the Jehovah’s Witness faith, I would hold, in recognition of the State’s obvious interest in protecting children from abuse, that the burden on the free exercise of the defendants’ religion is minimal.
State action does not violate the Establishment Clause if: (1) it has a secular purpose; (2) “its principal or primary effect [is] one that neither advances nor inhibits religion”; and (3) it does not “foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The defendants argue that any inquiry into the counsel given to Poisson would foster excessive government entanglement with religion, as it would require the trial court to evaluate religious doctrine *422and the quality and substance of religious counseling. They argue that such an inquiry amounts to a claim for “clergy malpractice,” a cause of action which has not been recognized by any court. See 47 Am. Jur. Trials 271, 288 (1993 & Supp. 2004).
The defendants do not challenge the plaintiffs’ claim upon either of the first two parts of the Lemon test. The United States Supreme Court has recognized, however, that the third part of the test, the entanglement factor, is significant simply as an aspect of the inquiry into the effect of the government action, the second part of the test. Agostini v. Felton, 521 U.S. 203, 233 (1997). I do not find that the inquiry into the advice given by the elders of the Wilton Congregation would have as its principal and primary effect either the advancement or inhibition of religion. Any entanglement created by the imposition of a duty upon the elders of the Wilton Congregation does not rise to the level of being excessive. It would merely require that when a duty arose due to the foreseeability of harm, the elders would be required to, at the very least, counsel the member who approaches them for advice to seek help.
Nor do I find that it would create a cause of action for clergy malpractice. The definition of malpractice relies upon adherence to professional standards. See Black’s Law Dictionary 971 (7th ed. 1999). There is no need to rely upon any “professional” clerical standard here to discover the Wilton Congregation’s duty in this case. See Morrison, 905 So. 2d at 1237-38, 1239-40. As the trial court found in its ruling on an earlier motion for summary judgment: “The burden involves only common sense advice to the church member____”
In Malicki, the Florida Supreme Court rejected a First Amendment bar to tort liability for the negligent conduct of church officials that resulted in harm to the plaintiffs. In its opinion, the court quoted the reasoning of a lower Florida court, which had come to a slightly different conclusion, but whose reasoning I find persuasive: “[J]ust as the State may prevent a church from offering human sacrifices, it may protect its children against injuries caused by pedophiles by authorizing civil damages against a church that knowingly (including should know) creates a situation in which such injuries are likely to occur.” Malicki, 814 So. 2d at 360 (quotation omitted).
Finally, I would uphold the trial court’s decision that though the statute of limitations, RSA 508:4, I (1997) and RSA 508:8 (1997), had expired by the time that plaintiff Holly Berry filed suit, the discovery rule allowed her to bring suit within three years of the time she discovered, “or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.” RSA 508:4, I. Though the plaintiff was aware of the sexual abuse, she was not aware of *423the defendant’s response to Poisson’s repeated requests for aid until “within a short period of time prior to filing” the lawsuit. Therefore I would uphold the trial court’s determination that Holly Berry is not barred by the statute of limitations, and allow both Holly and Heather Berry to proceed with their claims against defendant Wilton Congregation for common law negligence. Accordingly, I respectfully dissent.