High court says churches, not judges, define a ‘confession’ when it comes to reporting child abuse

The Arizona Supreme Court sided with religious leaders this week who argued the state’s clergy-penitent privilege law shielded them from reporting child sexual abuse to authorities.

And in declaring that any intervention by the courts would violate the First Amendment, the justices made clear they don’t think any changes to Arizona law aimed at forcing clergy to report abuse would be constitutional.  

“We hold that the First Amendment generally prohibits factfinders from inquiring into a clergy member’s application of his particular religious doctrine… in determining whether reporting should be withheld if ‘reasonable and necessary,’” Vice Chief Justice John R. Lopez IV wrote in the court’s unanimous opinion. “The First Amendment… requires courts to exercise substantial deference to a religious institution’s own doctrinal conception of ‘confession’ or ‘confidential communication.’”

Advocates for abused children said they were disappointed in the ruling. The protection of children is paramount, said Angela Walker, the executive director of the Survivors Network of those Abused by Priests, and should take precedence over church doctrine.

“We do not want predators to be able to use this confessional loophole to escape justice,” she said. “While we respect the court’s decision, we believe that the safety of these children must be protected. Especially since this predator videoed these images and put them online.” 

In Arizona, clergy are not mandated reporters and suspected child abuse or neglect isn’t exempted from that, even if it is ongoing. And religious leaders cannot be forced to testify in court about abuse a parishioner confessed to committing.

The case, Doe v. The Corporation of the President of The Church of Jesus Christ of Latter-day Saints, revolved around how Paul Adams disclosed to church leaders that he had sexually abused all six of his children for years.  Adams, a Customs and Border Patrol officer in Bisbee, was arrested in 2017 after he posted videos of himself abusing his children online. 

Adams confessed the abuse in 2010 to his bishop, John Herrod, who in turn called a church “abuse help line,” which told him he should not mention the abuse to any authorities. The case was featured prominently in an Associated Press investigation that found the help line created by the Church of Jesus Christ of Latter-day Saints often steered those reporting abuse away from legal authorities and instead to attorneys representing the church in order to cover up abuse allegations. 

Three of Adams’ children eventually filed a lawsuit against the church in 2021, claiming that it had covered up the abuse. Adams was excommunicated from the church and committed suicide while in custody after confessing to his crimes. 

The LDS Church argued that it was not bound by Arizona’s law requiring people report child abuse because of an exemption for clergy who receive the information in a confession or confidential communication from a parishoner. A Cochise County Superior Court judge agreed and granted the church’s motion for summary judgement in its favor. 

An appeals court reversed that, concluding that Adams’ clergy-penitent privilege was “waived” when Herrod had Adams’ repeat his confession to a church disciplinary board and before his wife, Leizza. It ruled that a jury should be allowed to determine whether the privilege was waived, and whether the church followed its own internal handbook advising leaders on how, or whether, to report abuse.

But the Supreme Court on Thursday said the appellate panel was wrong to do so. First, it ruled that the clergy-penitent privilege is a testimonial privilege — dealing only with whether a clergy member can be forced to testify — and is therefore irrelevant to any duty to report abuse, so whether it was waived or not doesn’t impact whether the bishops had a duty to report. That duty is determined by the “clergy exemption” in the reporting statute.

And whether that exemption is invoked is fully up to the judgment of the clergy member and the church, Lopez wrote. The First Amendment bars a jury from evaluating whether the bishops followed their own religious doctrine in deciding not to report, the Supreme Court ruled, because the courts must defer to a church’s own characterization of what counts as a confession and what its doctrine requires.

“This broad interpretive deference also avoids the potential for government coercion that could arise from a narrower construction of the Legislature’s language,” Lopez wrote. 

In this case, the LDS Church’s determination that Adams’ admissions before the disciplinary council amounted to a “confession” or “confidential communication” cannot be judged by the court. 

“Given the Church’s classification of (Adams’) abuse as violating the laws of God, and the Church’s assertion that Paul’s admissions to Bishop Herrod — alone and in Leizza’s presence — were confessions, we conclude that (Adams’)  admissions to Bishop Herrod constituted ‘confessions’ for purposes of the Reporting Statute,” Lopez wrote. “Any further inquiry into whether Paul’s admissions qualify as confessions is explicitly doctrinal. Under the First Amendment, such inquiry is beyond the purview of the factfinder and, thus, leaves no genuine issue of material fact regarding whether Paul’s admissions to Bishop Herrod qualify as ‘confessions.’”

The case attracted briefs from a litany of other religious bodies and institutions, including the Roman Catholic Church, the Seventh-Day Adventist Church and the Beckett Fund for Religious Liberty. Several have their own baggage in regards to failing to report sexual abuse. 

The Roman Catholic Dioceses of Phoenix, Tucson and Gallup backed the LDS Church’s position and argued that a ruling in favor of the Adams children violate the First Amendment. 

All three dioceses have faced allegations that they covered up sexual abuse by their clergy. In the early 2000s, the Tucson Diocese filed for bankruptcy due to litigation over instances of abuse within the church. 

The Church of Scientology, which has faced allegations of covering up child sexual abuse and forced marriages, made a similar filing alongside a litany of other religious institutions that also included the Seventh-Day Adventist Church. That church has also faced allegations of child sexual abuse dating back to the 1970s. 

The broad First Amendment ruling could limit whether Arizona law could be changed to require church leaders to report abuse, as other states have done. SNAP has been working across the country to change the laws that Walker said protect predators. 

“SNAP feels strongly that law enforcement should be contacted when a crime is committed. In this particular case, several different denominations circled the wagons in order to protect the Mormon Church rather than protecting the children who should have been saved from a predator,” she said, adding that “one of SNAPs pillars is advocating to reform archaic predator friendly laws that allow abuse and cover ups to continue.” 

Bipartisan efforts to change or reform Arizona’s clergy-penitent privilege law have failed to gain traction over fears it would lead to the government interfering with confessions. 

Miranda Whitworth, the adoptive mother of one of the children taken from Adams’ home, spoke out in favor of one such bill in 2021 and described the horrors the child witnessed and endured in the home, including seeing family pets run over or mutilated as a threat to speaking up about abuse. 

“We feel strongly that protecting children against sexual predators is first and foremost the priority and that we believe that the majority of people in Arizona will stand with us as well,” Walker said of the ongoing efforts at reforming such laws. “It seems pretty clear cut and I think the majority of Americans agree.”