It’s been a while since I’ve posted (a lot of good, but very busy, life stuff going on). I actually had planned to post something short and light-hearted today.
Then I read this.
I have read and listened to a fair number of accounts of the way the Church has (mis)handled reports of sexual abuse, and complaints about their “help line”–which, for the avoidance of doubt, is designed to help protect the Church and abusers, not to help abuse victims.
This article is the most horrific one I’ve ever read. And it gives more detail on the inner-workings of the help line that I have ever seen. There’s a shorter summary version here, too.
You should read it for yourself, I’m sure there will be lots of discussion about it in the Bloggernacle, not to mention I think we have a responsible to acknowledge and witness this kind of thing. Here, I’m going to provide an overview here and outline some of the issues raised.
The Abuse & Bishop Report
The article details years of horrific abuse a father committed against his daughters while living in Arizona. (I’m not going to describe it here. Read the article. It’s horrific.) The father confessed to the abuse of his first daughter to his bishop. When the bishop called the Church “helpline”, he was told in no uncertain terms not to contact the police or child welfare services: “When [the bishop] called the help line, church officials told him the state’s clergy-penitent privilege required him to keep [the] abuse confidential” and that “he could be sued” if he went to authorities.
The father later told a second bishop about the abuse, who also called the helpline. The second bishop was again told not to report the abuse; the Church did, however, tell that bishop to convene disciplinary proceedings and the father was excommunicated. Still, nothing was reported.
The father was eventually arrested–after abusing his daughters (including one starting at six-weeks old) for seven years–when videos of the abuse surfaced on the internet. The Church did not have anything to do with his arrest or the discovery of his crimes. The father died by suicide after his arrest.
As mentioned, the article details the inner workings of the Church’s abuse hotline in more detail than I’ve ever seen–based on thousands of pages of records reporters uncovered from a separate lawsuit against the LDS Church.
The article reports:
“The sealed records say calls to the help line are answered by social workers or professional counselors who determine whether the information they receive is serious enough to be referred to an attorney with Kirton McConkie, a Salt Lake City firm that represents the church.
But it also says, in capital letters, that those taking the calls “should never advise a priesthood leader to report abuse. Counsel of this nature should come only from legal counsel.”
The article also describes:
“Two church practices, identified in the sealed records, work together to ensure that the contents of all helplines calls remain confidential. First, all records of calls to the help line are routinely destroyed. ‘Those notes are destroyed by the end of every day,’ said Roger Van Komen, the church’s director of Family Services, in an affidavit included in the sealed records.
Second, church officials say that all calls referred to Kirton McConkie lawyers are covered by attorney-client privilege and remain out of the reach of prosecutors and victims’ attorneys. “The church has always regarded those communications between its lawyers and local leaders as attorney-client privileged,” said Paul Rytting, the director of Risk Management, in a sealed affidavit.”
Finally, the internal documentation and testimony also clarifies the real purpose of the “helpline”, which is to protect the Church–not abuse victims (or really even people who call in, except to the extent they represent the institutional Church):
“Mormon leaders established the help line in 1995 and it operated not within its Department of Family Services, but instead in its Office of Risk Management, whose role is to protect the church and members from injury and liability in an array of circumstances, including fires, explosions, hazardous chemical spills and severe weather. The department ultimately reports to the First Presidency, the three officials at the very top of the church hierarchy, according to records in the sealed documents.”
As I see it, there are at least three legal issues here.
- First, was the Bishop required to report the abuse to relevant authorities?
- Second, if he wasn’t required, was the bishop legally permitted to report the abuse to relevant authorities?
- Third, could the Church itself be held liable for the abuse?
Privilege & Compulsory Reporting Primer
Let’s tackle the privilege / mandatory reporting questions first. By way of background, there are several different kinds of legal “privileges” such as the attorney-client privilege, clergy-penitent, doctor-patient, spousal, etc.
Some kinds of privilege allow the privilege holder to resist compulsory disclosure of documents or information. The attorney-client privilege allows attorneys to decline to disclose certain communications to regulators, in trial, etc. Its purpose is to allow clients to speak freely with lawyers without worrying that what they say could be used against them in court or other proceedings. Attorneys also have a duty of confidentiality to their clients–so they are not supposed to reveal privileged communications–but this isn’t typically dealt with by statute. It’s instead a professional obligation that would be regulated and enforced by accreditation bodies like a bar association. So a lawyer who reveals privileged communications could be disbarred or perhaps civilly liable for malpractice, but not criminally prosecuted.
In addition, only certain kinds of attorney-client communications qualify for the privilege (facts aren’t privilege, just the communication seeking and responding to requests for legal advice), and the privilege can be lost or waived if the communications are disclosed to anyone–so once the information is disclosed to any third party that does not also have that privilege, it goes away. You can’t pick and choose who you disclose to.
Another important limitation on the attorney-client privilege is the crime / fraud exception. Under that exception, if a client is in the process of committing or intends to commit a crime or fraudulent act and communicated with the lawyer with intent to further the crime or to cover it up, that communication is not privileged. I’m oversimplifying here (and this is not legal advice!), but one way of thinking about it is that if a client confesses to a past crime, the lawyer does not need to disclose that information–it’s privileged. But if a client talks to a lawyer about an ongoing or future crime with intent to cover it up or continue, the privilege is lost.
Spousal privilege is another kind of privilege that has interesting applications in different states. For example, in many states, one spouse can prevent the other from testifying in a civil suit. But in many of those states, for criminal proceedings, a spouse cannot be compelled by the government to testify but could choose to testify and the other spouse could not object. In addition, nothing of course prevents a spouse from reporting another to law enforcement or other authorities for something like child abuse. The point of the spousal privilege is to preserve marital harmony by not compelling a spouse to testify against another–but the limitations reflect the fact that if the spouse is choosing to testify, the state’s interest in protecting the marriage is probably not very strong. Likewise, parents should be able to protect their children (or themselves) by reporting abuse.
On the other end of the spectrum, there are also several types of compulsory reporting laws (the opposite of privilege), such as for therapists, physicians, and school teachers. Generally, for example, a therapist would have a duty of confidentiality to a client. But if the therapist comes to believe that child abuse or neglect is occurring, the therapist has a mandatory reporting obligation to report to authorities–and is immune from civil liability for such a report (even if it ends up being incorrect).
Penitent-Clergy Privilege & Reporting
Many states have a type of clergy privilege designed to facilitate the free communication between penitents and their clergy. Arizona, the state where this particular case took place, has the following:
“In a civil action a clergyman or priest shall not, without the consent of the person making a confession, be examined as to any confession made to him in his character as clergyman or priest in the course of discipline enjoined by the church to which he belongs.”
A couple of important points here. Again, I haven’t done extensive legal research on this and I’m not giving legal advice, but reading the text on its face tells us that (1) this applies in “a civil action,” and (2) protects a clergy person from being “examined” (i.e., in a deposition or witness examination).
What doesn’t it say? Well, it doesn’t say that a clergy can’t be compelled to testify in a criminal case. It also doesn’t say that a clergy cannot choose to testify in a civil case. It certainly does not say that clergy cannot report suspected abuse to child welfare services. And it also permits disclosure with “consent.”
Arizona, like many states, also has a mandatory reporting law. This law requires that a host of people–doctors, social workers, school personnel, caregivers, and–yep–clergy–report to child welfare if they have a reasonable belief that a minor is or has been the victim of abuse. However, it has an exception for clergy’s mandatory reporting requirements that “[a] member of the clergy … who has received a confidential communication or a confession in that person’s role as a member of the clergy … may withhold reporting of the communication or confession if the member of the clergy … determines that it is reasonable and necessary within the concepts of the religion. This exemption applies only to the communication or confession and not to personal observations the member of the clergy, Christian science practitioner or priest may otherwise make of the minor.”
In 2021, there was legislation pending to remove this exemption, but it did not pass. In any event, again, it does not mean that a clergy person is prohibited from disclosing such communications. Only that they may decline to if they determine it is “reasonable and necessary within the concepts of the religion.”
Again, this brings up back to the actual legal issues in the case.
The attorneys representing the Church stated that “These bishops did nothing wrong. They didn’t violate the law, and therefore they can’t be held liable.” That’s wrong in a lot of ways.
First, it’s not clear to me that they didn’t violate the mandatory reporting laws as I do not know what is “reasonable and necessary within the concepts of” the LDS Church to decline to intervene when a five-year-old girl is being raped by her father and neither her father or mother is doing anything about it. While I understand the policy behind keeping confessions confidential, I don’t really understand how protecting the confidentiality of the father’s confession outweighed a five-year old’s interests in not getting raped (for seven years). That said, given the deference that courts tend to give to religious institutions to practice in the way they see fit, I am guessing that this is generally interpreted to protect a confession / repentance process if the religious institution teaches that those are confidential. At the same time, I don’t remember ever being told that confessing to a crime to a bishop couldn’t lead to a report to authorities, and I also seem to recall that the Church claims that its policy is to protect abuse victims. If the Church’s actual policy is to protect abuse victims, then it doesn’t seem “reasonable and necessary within the concepts of the religion” to protect the abuser instead.
Second, even assuming that the bishop didn’t have a legal obligation to report under mandatory reporting laws, that does not mean that he “did nothing wrong.” He could have chosen to report the abuse, or he could have encouraged the husband to report the abuse, or asked the husband for consent to report the abuse, or more strongly encouraged the wife to report the abuse, or a whole number of other options to try to get help for a vulnerable girl who was suffering unspeakable horrors. The advice that he was given by the Church helpline that he was not allowed to report the abuse was dead wrong. It’s possible that he could have been sued for defamation if the report was knowingly false–although Arizona attorneys claim that good faith reports are immune from civil or criminal liability, so that seems such a stretch. In any event, it seems it would be much better to weigh in favor of risking a defamation suit instead of risking continued abuse of a child (and potential legal liability and bad press stemming from that, as well).
The ultimate question of whether the Church should be held liable for not reporting is harder, and I honestly don’t know the answer to that because I’m not familiar enough with the relevant standards for causation and defenses. But I think a strong case can be made that the helpline gave the bishop incorrect legal advice and was essentially either lying to him, or committing malpractice by misinterpreting Arizona law, and that this advice directly led to his decision not to report and therefore the continued abuse of the girl and, later, her infant sister. This actually wasn’t even about “poor training” of clergy (like not telling him what to do and leaving him to his own devices). It’s about intentionally training clergy not to report abuse.
I actually do not care what the Church’s legal rights or obligations are. I truly do not.
Because last I checked, the standard for right and wrong is not “not breaking the law.” If that were the case, there are about a million things that I could do that are “not breaking the law” that the Church–and lots of other people–would think are “wrong.” You know, like drinking, or smoking, or getting an abortion in a blue state, or getting gay-married, or never ever giving any money to charity, or never ever treating anyone with kindness. I was under this strange impression that as disciples of Jesus Christ, we are trying to follow Him–not just the law.
And last I checked, Jesus never said a damn word about protecting institutions or abusers or clergy from liability. What he did say is that “whosoever shall offend one of these little ones that believe in me, it is better for him that a millstone were hanged about his neck, and he were cast into the sea.”
This is not that hard, Salt Lake.
I get that you want to protect the institution.
I get that there are some benefits to the clergy-penitent privilege and you want people to feel that they can freely confess.
Still. This isn’t hard.
Stop protecting abusers.
- What’s your take on the legal issues here? Do you agree or disagree that the bishop was a mandatory reporter? Do you agree or disagree that he could have chosen to report? Do you agree or disagree with the helpline’s advice that he’s not allowed to report?
- What benefits of the penitent-clergy privilege do you see? What exceptions, if any, should there be? Are you aware of any evidence that repentance “cures” sexual predators? If it doesn’t, then what should that mean for how the Church handles such confessions?