Should religious leaders be held responsible for disclosing to law enforcement knowledge that church members are committing acts of sexual abuse? On Friday, Arizona Judge Timothy Dickerson answered no.
Dickerson’s end-of-week ruling dismissed a high-profile child sexual abuse lawsuit against the Church of Jesus Christ of Latter-day Saints on the basis of the state’s clergy-penitent privilege.
Judge Timothy Dickerson
Clergy-penitent privilege is a legal privilege that protects information from being disclosed in criminal proceedings, such as in a deposition, if that information was obtained during a confidential conversation between clergy and penitent. This privilege allows those seeking clergy counsel to communicate freely with their religious leaders with the understanding that information shared in a counseling session or other private setting will not be disclosed without their express consent, even if that information contains the confession or discovery of a crime.
This privilege was relevant to Dickerson’s ruling because the case involved the disclosure to multiple defendants including “two bishops and several other officials with the church” to whom LDS church member Paul Adams allegedly confessed he was sexually abusing his daughter.
Although Adams was excommunicated from the church, his alleged crime never was reported to civil authorities, nor was it investigated by law enforcement officials or Child Protective Services. The defendants were not responsible for reporting Adams, Dickerson explained, “because their knowledge of the abuse came from confidential communications which fall within the clergy-penitent exception.”
The failure of these church leaders to report this alleged abuse allowed Adams to continue to sexually abuse his daughter for seven more years.
However, the failure of these church leaders to report this alleged abuse allowed Adams to continue to sexually abuse his daughter for seven more years. During this time, he also began abusing a second daughter “starting when she was just 6 weeks old,” court records indicate. The abuse did not end until videos of Adams abusing his daughters that he recorded and posted on the internet were discovered by authorities in New Zealand and the United States. Before his trial, he died by suicide.
Lynne Cadigan, an attorney representing the two victims who filed the lawsuit, plans to appeal Dickerson’s ruling because she believes it misuses the clergy-penitent privilege by applying it to members of the church who were not accredited clergy. She says the defendants protected by this ruling include Adams’ wife, Leizza, and non-clergy members of the church disciplinary council.
Only accredited clergy, if the situation in which a confession occurs meets the criteria laid out in the clergy-penitent privilege, are exempt from reporting requirements. Yet Dickerson’s ruling treated the group’s knowledge as exchanges that “collectively amounted” to confidential communication protected under this law.
What is really illegal to report?
Because of clergy-penitent privilege laws, acts of sexual violence that are confessed, discussed or referenced in a confidential meeting between clergy and penitents are often inadmissible for use as evidence in court. Religious leaders hearing these confessions may feel as though their hands are tied, being legally unable to report a crime they know is happening.
Acts of sexual violence that are confessed, discussed or referenced in a confidential meeting between clergy and penitents are often inadmissible for use as evidence in court.
In response to this dilemma, many states (including Arizona) have crafted reporting laws addressing the dangers of upholding this exception for clergy, especially when it comes to cases that involve the abuse of minors. Since clergy are often considered mandated reporters, their duty to report knowledge of a potential crime or situation of neglect supersedes their duty to maintain confidentiality. The legal exceptions granted in clergy-penitent laws can sometimes be ignored when failing to report a confession or suspicion of abuse might prevent a minor from being extracted from an abusive, traumatic and dangerous situation.
But since this is also a matter of a person’s religious right to confidential confession, the use or dismissal of these exceptions is decided case-by-case. This is not the first time a judge has decided clergy-penitent privilege was an appropriate excuse for failing to report child sex abuse to law enforcement on the basis of religious freedom.
Hotlines: Crime or sin?
And amid debates about the legal requirements mandating or exempting people from reporting sex crimes like this, there is another aspect of this story that complicates things: Hotlines.
While it is no secret that abuse is a systematic issue among religious groups across the world, religious institutions have a choice in how they address the epidemic of sexual assault in their congregations. For the LDS church, the current tool used to address accusations of sexual violence and sexual abuse is a hotline. The hotline is not available to members in general; it is intended for bishops to use when a church member confesses a crime to them.
Since the 1990s, the LDS church has been using an abuse helpline to counsel clergy on how they should respond in these scenarios. According to an investigative series published by VICE News four years ago about the LDS hotline, when a bishop calls, they are connected with a staff member at the LDS Family Services office. During this initial conversation, a counselor can speak with the bishop about why they are calling. Eventually, all calls to this hotline are forwarded to the church’s law firm, Kirton McConkie.
Attorney Timothy Kosnov, a lawyer who has handled more than 100 claims against the LDS church relating to child sexual abuse, told VICE News the hotline is a tool used by the LDS church not to protect victims from further abuse, but to protect the church from being exposed for it.
He explained: “It’s a helpline for the lawyers, not for the children or anybody else. It gives them an opportunity to get involved quickly, send lawyers out there, talk to victims, silence them if they can.” Rather than connecting bishops with law enforcement officials who could prevent or end situations of abuse, the hotline functioned as a way to quickly get information on potential liabilities to the church’s lawyers.
“The pattern in the Mormon church is to keep this a secret,” Kosnov said. “Deal with it internally as a matter of sin. Not as an issue of public safety, but as a moral failing to be dealt with through repentance and prayer.”
Because of its hierarchical structure, the LDS case offers only some direct parallels to other religious groups, such as Baptists. And Arizona is among the majority of states that do not classify clergy as mandatory reporters in all cases.
New Hampshire, West Virginia, North Carolina, Oklahoma, Rhode Island and Texas have the most demanding laws requiring clergy to report child abuse.