Seven Years of Sexual Abuse: How a Bad Case could Forfeit Religious Freedom

The other day, I read the Associated Press article entitled, “Seven years of sex abuse: How Mormon officials let it happen” (the “Article”), published on August 4, 2022.  Unfortunately, I did not have time to write anything while the Article was fresh in the news.  Nevertheless, I feel compelled to write because the author ignored the complexity of the legal privileges, duties of confidentiality and Rules of Evidence that apply to the disturbing allegations he described and the disturbing means by which he investigated and reported the allegations.  To a typical reader untrained in the rigors of establishing the truth through credible evidence, the Article provokes unjustified contempt and distain for those the author, without sound evidence, portrays in the Article as bad actors. 

The following is not intended to address all of the evidentiary complexities or even those specific to the jurisdictions of the two cases mentioned in the Article.  Rather, the following is intended as a brief discussion primarily focused on state and federal rules, statutes and case law in Utah where I practice. 

While the allegations of abuse described in the Article, if true, call for the full measure of justice, I fear the author misled many readers into believing the clergy and the clergy-penitent privilege are to blame.  To the contrary, the foundation of the clergy-penitent privilege is set in sound public policy, including the United States Constitution as are other privileges called into play by the circumstances described in the Article.  

I hope this discussion helps readers misinformed by the Article gain a greater appreciation for the critical roles confidences and privileged communications play in our society and judicial system.  I also hope this discussion helps readers appreciate the error and hypocrisy in the author’s unfounded criticisms of the clergy, the attorneys advising the clergy, the clergy-penitent privilege, and religion in general.  Finally, I hope to reveal the adverse consequences on the free exercise of religion that will follow from government intrusion into the clergy-penitent relationship.
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The Clergy-Penitent Privilege:

There are times when clergy have duties of confidentiality.  Unfortunately, the Article fails to account for the:

     essential role that clergy in most churches perform in providing confidential counsel and advice
     to their communicants in helping them to abandon wrongful or harmful conduct, adopt higher
     standards of conduct, and reconcile themselves with others and God.  … [C]lergy must … give
     confidential guidance concerning the moral faults of their parishioners pursuant to their responsibility
     to give spiritual and religious advice, counsel, and admonishment.  In counseling parishioners in
     religious and moral matters, clergy frequently must deal with intensely private concerns, and parishioners
     may be encouraged, and even feel compelled, to discuss their moral faults. 
     The clergy-penitent relationship depends on a sense of complete confidentiality ….  At least to some
     extent, admissions of wrongdoing to clerics … would not be made but for the belief of parishioners …
     that their confidences would not be disclosed.  It is only on that basis that ... most persons [are] willing
     to open up their innermost personalities and disclose their most private and sometimes painful aspects
     of their inner selves. ….  Thus, to fulfill their responsibilities, clergy must be able to counsel and
     admonish with confidentiality if they are to show the transgressor the error of his way; to teach him the
     right way; to point the way to faith, hope, and consolation [and] perchance to lead him to seek
     atonement.

Scott v. Hammock, 870 P.2d 947, 952 (Utah 1994)(internal quotations and citations omitted).

Accordingly, there is a long-established privilege commonly known as the clergy-penitent privilege.  The clergy-penitent privilege is rooted in the First Amendment.  Several courts have explained that compelled disclosure of clergy-penitent communications would violate the First Amendment clause protecting the free exercise of religion.  See, e.g., Scott, 870 P.2d 947 at 954 (citing cases).  Furthermore, courts have recognized that “[t]he benefit of preserving these confidences inviolate overbalances the possible benefit of permitting litigation to prosper at the expense of the tranquility of the home, the integrity of the professional relationship, and the spiritual rehabilitation of the penitent.  The rules of evidence have always been concerned not only with truth but with the manner of its ascertainment.”   Scott, 870 P.2d 947 at 954 (citing cases).

In Utah, the clergy-penitent privilege is set forth in Utah Code § 78B-1-137, and more particularly in Utah Rule of Evidence 503 as follows:

     A person has a privilege to refuse to disclose, and to prevent another from disclosing, any
     confidential communication:
          (b)(1) made to a cleric in the cleric’s religious capacity; and
          (b)(2) necessary and proper to enable the cleric to discharge the function of the cleric’s office
          according to the usual course of practice or discipline.

The current Arizona rule is similar but does require disclosure of child abuse except in certain narrow circumstances as follows:

     A member of the clergy, a Christian Science practitioner or a priest who has received a confidential
     communication or a confession in that person’s role as a member of the clergy, as a Christian Science
     practitioner or as a priest in the course of the discipline enjoined by the church to which the member
     of the clergy, the Christian Science practitioner or the priest belongs may withhold reporting of
     the communication or confession [concerning child abuse] if the member of the clergy, the Christian
     Science practitioner or the priest 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, the Christian Science practitioner or the priest may otherwise
     make of the minor. 

Arizona Rev. Stat. §13-3620A.

I notice the author of the Article was careful to not expressly state that Mr. Adams confessed to raping MJ.  The Author does not rest his Article on a developed record of sworn testimony about what the bishops in Arizona understood concerning the allegations of sexual abuse or their duties at the time.  Nevertheless, the author concludes that simply because the bishops in Arizona might have been permitted by law to disclose confessions of child abuse, they and the attorneys on the help line should be faulted for not reporting.  This trivialization of the scope and complexity within which clergy serve is unjustified and insulting.  Clergy are not charged with the enforcement of man’s law, nor should they be.  They are charged with the enforcement of God’s law within their own respective religions.  By no means are they perfect, but they seek to apply the justice and mercy of God to all in their congregations according to the will of God.  It is not an enviable position in which to be.  Accusations and confessions of child abuse, whether physical or sexual, must tear at the heart of every member of the clergy.  Should they be forced by law, no matter how repugnant to the clergy-penitent relationship, to report immediately to law enforcement even when the confession appears to be in furtherance of genuine repentance?  Should the clergy be forced to report in haste even though the consequence might be violent retribution or suicide?  Should they be forced to report regardless of the weight of the evidence even though the report might cast a perpetual stigma on a penitent breadwinner, for example, resulting in the loss of employment and the future inability to provide for his or her family?  Apparently, the author of the Article has little if any appreciation for the tremendous weight of these matters on clergy.

From a broader policy view, what would become of the clergy’s role in administering justice and mercy under the laws of God if the state could intrude in that process and dictate certain actions such as mandatory reporting to government law enforcement authorities?  Such would be an intolerable afront to the free exercise of religion and the separation of church and state.  Such would mark the end of clergy assisted repentance.  Few if any would confess and forsake their sins if the assumption is that their confession might be disclosed and used against them in a public court of law.  As a consequence, society as a whole would pay the price of less repentance and less change for the good.

The Attorney-Client Privilege:

The Article identifies an Idaho attorney who, “routinely demands that the church require bishops to report sex abuse to police or state authorities rather than the help line.”  I could appreciate an uninformed lay person making such a demand but as an attorney, I consider this a remarkably disturbing suggestion from another attorney.  The help line is a means for clergy to communicate directly and immediately with legal counsel.  Imagine a law requiring that any person who reasonably believes a child has been sexually abused must report to the police or other state authorities without first consulting with an attorney.  Would that withstand constitutional scrutiny?  I don’t think so.  Under no circumstances should any person be compelled to report anything without at least having the right to seek competent legal counsel in advance.

Of course, communications with attorneys including those made through the help line are protected by the attorney-client privilege.  The attorney-client privilege also serves important interests as explained by Supreme Court of the United States:
     The attorney-client privilege is the oldest of the privileges for confidential communications known to the
     common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961).  Its purpose is to encourage full and
     frank communication between attorneys and their clients and thereby promote broader public interests
     in the observance of law and administration of justice.  The privilege recognizes that sound legal
     advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s
      being fully informed by the client.  As we stated … in Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct.
     906, 913, 63 L.Ed.2d 186 (1980): ‘The lawyer-client privilege rests on the need for the advocate and
     counselor to know all that relates to the client’s reasons for seeking representation if the professional
     mission is to be carried out.’ And in Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569 1577, 48 L.Ed.2d
     39 (1976), we recognized the purpose of the privilege to be ‘to encourage clients to make full disclosure
     to their attorneys.’ This rationale for the privilege has long been recognized by the Court, see Hunt v.
     Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888) (privilege ‘is founded upon the necessity,
     in the interest and administration of justice, of the aid of persons having knowledge of the law and
     skilled in its practice, which assistance can only be safely and readily availed of when free from the
     consequences or the apprehension of disclosure’).  

Upjohn Company v. United States, 449 U.S. 383, 389 (1981). 

Contrary to the unfounded suspicions expressed in the Article, the attorneys on the help line are not burying problems.  I believe they are exercising their best efforts to give competent legal advice under extremely sensitive and complicated conditions.  Thanks to them, the broad public interest in the observance of law and administration of justice is being served in the hundreds of instances in which they counsel clergy to report information about child abuse.  Disappointingly, the Article trivializes this undisputable critical fact.

Interspousal Privilege:

Some might wonder why the Article does not scandalize Leizza Adams, MJ’s mother, the way it does the bishops, the attorneys and the Church.  After all, if the account of the facts is truthful, she was far more in the know than anyone other than the victims and Mr. Adams himself.  As the victims’ mother one might justifiably conclude that she had the greatest duty to report of all.  Perhaps her culpability is brushed over in the Article because justice was served by her two-and-a-half years in state prison.  Mention of the interspousal privilege, however, would have enlightened readers to a greater appreciation for privileges in general and the clergy-penitent privilege in particular. 

The interspousal privilege differs somewhat from state to state and between state and federal courts.  Generally, however, the interspousal privilege has two prongs.  One prong generally prevents spouses from testifying against each other in criminal proceedings.  The other prong allows for the exclusion of evidence of confidential interspousal communications in both criminal and civil proceedings.  In Utah, both privileges are embodied in Utah Rule of Evidence 502.  In federal courts, a spouse may not be compelled to testify against his or her spouse even if the accused spouse is being tried for sexual abuse of a child.  See, e.g., U.S. v. Jarvison, 409 F.3d 1221 (10th Cir. 2005).  Likewise, Article I, § 12 of the Constitution of Utah provides in part that in criminal proceedings, “a wife shall not be compelled to testify against her husband, nor a husband against his wife.”

     The traditional justifications for this privilege have been the prevention of marital dissension and the
     “natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the
     other’s condemnation.”  8 John H. Wigmore, Evidence in Trials at Common Law § 2228 (McNaughton rev. 1961). 
     If a husband or wife could be compelled to testify against his or her spouse, the testifying spouse would be
     placed in the unenviable position of either committing perjury or testifying to matters that are detrimental
     to his or her spouse, which could clearly lead to marital strife.  Marital testimonial privileges avoid this
     moral hazard by permitting a spouse to refuse to testify.  

State v. Robertson, 932 P.2d 1219, 1227 (Utah 1997). 

Concerning interspousal confidential communications, Utah Rule of Evidence 502(c) provides:

     An individual has a privilege during the person’s life:
          (c)(1) to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any
          confidential communication made by the individual to the spouse during their marriage; and
          (c)(2) to prevent another person from disclosing any such confidential communication.

This Rule, however, has a number of exceptions, including an exception for communications about child abuse even if the communication is made in confidence.  Accordingly, while a spouse with reason to believe child abuse has occurred may be prevented from testifying against his or her accused spouse in criminal proceedings in Utah, there is no privilege that would exclude evidence of interspousal confidential communications concerning child abuse in Utah.  Therefore, in Utah at least, Ms. Adams could have reported the alleged child abuse without breaching the interspousal-privilege.  Assuming Arizona’s rule is similar begs the question why Ms. Adams did not report her husband.  She may have had several excuses.  Perhaps she feared retribution or the loss of a breadwinner; it is hard to say, but similar to the clergy’s position, it is not an enviable position in which to be.

Evidence Sealed by the Grave:

I am often disturbed by accusations against the dead.  In Utah, publications “tending to blacken the memory of one who is dead” are libel punishable under both civil and criminal statutes.  Utah Code § 45-2-2; see also, Utah Code § 76-9-501.   I have never heard of a libel case being brought on behalf of the dead except in rare cases in which the dead person is associated with a brand name or other commercial interest.  In any event, dirt on the dead seems to pique the curiosity of many, and the press seems to readily oblige by digging up and publishing scandalous information with impunity about dead people. 
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This bothers me because the dead are not here to give their account of the facts and to otherwise defend themselves.  Understand, I have no interest in excusing the alleged acts of child sexual abuse described in the Article.  If they are true, the perpetrators have no excuse.  Unfortunately, Mr. Adams apparently lost his life to suicide, and he is not here to give his account of what happened.  Accordingly, as a practical matter, his testimony is excluded from evidence and the videos and other records he might have left behind are hearsay because he will not be present to testify at trial.  Fortunately, the hearsay rules allow for the admission of some of what Mr. Adams left behind.  For example, the video admissions he allegedly posted on the internet would likely be admissible evidence under Utah Rule of Evidence 804(b)(3).  This rule provides an exception to the hearsay rule when the declarant is dead or otherwise unavailable as a witness.  In such cases, hearsay evidence of the declarant’s statement made against his own interest may be admissible.   An admissible statement against interest is:

     A statement that:
          (A) a reasonable person in the declarant’s position would have made only if the person believed it to
          be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had
          so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to
          civil or criminal liability; and
          (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered
          in a criminal case as one that tends to expose the declarant to criminal liability. 
     
Utah Rule of Evidence 804(b)(3).  Unfortunately, the relatively little amount of admissible evidence Mr. Adams left behind likely pales in comparison to the alleged seven years of abuse for which the bishops, lawyers and the Church were wrongly blamed in the Article.
 
The Fifth Amendment Privilege against Self Incrimination:

Even if Mr. Adams was alive, his testimony would likely not be heard, for good reason, whether he was guilty or not.  Under the Fifth Amendment to the Constitution, Mr. Adams could not be compelled to testify against himself.
 
     [O]ne of the Fifth Amendment’s ‘basic functions . . . is to protect innocent men . . . “who otherwise
     might be ensnared by ambiguous circumstances.” Grunewald v. United States, 353 U. S. 391, 421 (1957)
     (quoting Slochower v. Board of Higher Ed. of New York City, 350 U. S. 551, 557-558 (1956)) (emphasis in
     original).  In Grunewald, [the Supreme Court] recognized that truthful responses of an innocent witness,
     as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s
     own mouth. 353 U. S., at 421-422.

Ohio v. Reiner, 532 U.S. 17, 21 (2001).

Sealed Judicial Records:

I note that allegations in judicial records that are sealed by court order are repeatedly referenced in the Article.  If the order sealing the records had been lifted by a subsequent order prior to the time the Associated Press obtained access to them, the records would no longer be sealed.  I take the Associated Press’s admission at face value and assume the records the Associated Press allegedly obtained were under seal at the time they were obtained and remain sealed today notwithstanding the Associated Press’s access to them. 

The conditions and procedure required to seal judicial records varies somewhat from state to state in both state and federal jurisdictions.  Generally, however, there is a presumption in common law that the public has a right to access court documents.  See, Nixon v. Warner Communications, 435 U.S. 589, 599 (1978).  Under the common law, however, court documents may be sealed when the right to access is outweighed by interests favoring nondisclosure. See, Nixon, 435 U.S. at 602. 

Likewise, most federal circuits recognize a First Amendment right for the public and the press to access particular court records, but not all court records.  In circuits where a First Amendment right to access some court records exists, those records may be sealed only if a compelling governmental interest exists and the order sealing the records is narrowly tailored to serve that interest.  See, In re U.S. for an Order Pursuant to, 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013); see also, U.S. v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997).  Accordingly, from time to time courts will seal court records when the weight of compelling private or governmental interests exceeds the weight of the public’s or the press’s right to access the records. 

The limited ability courts have to prevent the disclosure of court records serves important purposes in our society and judicial system.  Such purposes include but are not limited to preserving the anonymity of minors and victims of crimes, preserving trade secrets and protecting national security information. 

Assuming the alleged sealed records actually exist, they would have been subject to a judicial inquiry, and the need for their confidentiality must have been found to be more compelling and more weighty than the public’s or the press’s right to access the records.  Therefore, if the alleged sealed records actually exist, I believe the Associated Press should not have them.  Note that law-abiding readers of the Article do not have access to the alleged sealed records.  Accordingly, they cannot check the court record and verify the credibility of the Article, nor can they check the record for contrary evidence.  Likewise, the Church is at a severe disadvantage in effectively responding to the Article because the Church cannot point to contrary evidence in the court record without violating the court order. Accordingly, little if anything reported in the Article concerning sealed records could be true, and the reader has no means of checking. 

How did the Associated Press obtain those sealed records?  If the Associated Press did actually obtain sealed records, I believe the Associated Press must have obtained them through illegal means and that the source should be held in contempt of court, a serious crime, for disclosing sealed records in violation of a court order.

Nevertheless, I believe the Associated Press would expend whatever costs necessary defending against having to disclose how the sealed records were obtained.  While the author of the Article criticizes the bishops, the Church and the Church’s attorneys for relying on the well-established clergy-penitent privilege and the attorney-client privilege, he neglects to report that the Associated Press and he are relying on the news reporter privilege to jealously guard against disclosure of the means, no matter how nefarious, employed to obtain the alleged records.

The News Reporter Privilege:

The news reporter privilege is rooted in the First Amendment to the Constitution.  In Branzburg v. Hayes, 408 U.S. 665 (1972), the United State Supreme Court addressed whether journalists enjoy a privilege under the First Amendment against being compelled to testify in grand jury proceedings about information gathered by journalists in their investigations.  Of the nine justices, four agreed that the First Amendment affords no privilege, one concurred with those four, one dissented asserting an absolute privilege and three dissented asserting a qualified privilege.  Since then, most of the circuit courts have interpreted Branzberg as affording a First Amendment qualified reporter privilege.  The privilege may vary somewhat from circuit to circuit, but in general the privilege protects news reporters against compelled disclosure of confidential sources and unpublished confidential materials.  See, Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993); see also, Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir.1977).

As noted above, the news reporter privilege is rooted in the First Amendment.  The concern is that compelled disclosure of unpublished news information and sources of information would have a chilling effect on freedom of speech and freedom of the press because informants would be reluctant to speak to news reporters.  Accordingly, the privilege serves an important public interest “in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public.”  Shoen, 5 F.3d at 1292.

Most state courts have followed suit.  The news reporter privilege in Utah is found in Utah Rule of Evidence 509 and in part states as follows:

     (b) Statement of the Privilege for Confidential Source Information.  A news reporter or confidential source
     has a privilege to refuse to disclose — and to prevent any other person from disclosing — confidential
     source information, unless the person seeking the information demonstrates by clear and convincing
     evidence that disclosure is necessary to prevent substantial injury or death.
     (c) Statement of the Privilege for Confidential Unpublished News Information. A news reporter has a
     privilege to refuse to disclose confidential unpublished news information, unless the person seeking
     the information demonstrates a need for that information that substantially outweighs the interest of a
     continued free flow of information to news reporters.

In summary, the news reporter privilege is justified by the need to protect freedom of speech and freedom of the press from government interference.  The news reporter privilege is as sacred to the author of the Article, the Associated Press and the public at large as the clergy-penitent privilege is to the clergy, religion and the public at large.  I find it most hypocritical for the author of the Article and the Associated Press to criticize the clergy-penitent privilege and fault the bishops, the attorneys and the Church for relying on privileges when all the while the author of the Article and the Associated Press are glibly standing behind the news reporter privilege and failing to disclose the source of the information that I believe was obtained in violation of a court order.

The Jury Privilege:

If Mr. Adams were alive and subject to a criminal trial before a jury and if the civil trial on behalf of MJ proceeds to a jury trial, the juries’ deliberations would also be subject to a stiff privilege.

     Under our Anglo-American system, we take ... ordinary people, put them in a jury room, close the door,
     and--according to one’s beliefs--either the Holy Ghost or Socratic wisdom descends upon them.  When the
     door opens, the truth emerges.  Thereafter, we do not allow the parties or the public to impeach that
     verdict with evidence of what occurred between the jurors in the sanctity of that jury deliberation room.

State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 209, n.7 (Tex.Crim.App. 2003)(citing cases); see also, State v. Thomas, 830 P.2d 243, 249 (Utah 1992) Stewart, J., concurring, “the long-established policy of the law to keep jury  deliberations both secret and sacrosanct ought to be observed.”).  This privileged obviously serves justice by ensuring jurors are free to deliberate and seek for truth without fear of being hassled about it afterwards.

Religion Matters:

The allegations of child sex abuse expressed in the Article are most disturbing.  Pandering to the public’s justifiable outrage for child sex abuse as a means to incite cynicism toward the most sacred clergy-penitent privilege, however, is likewise outrageous.  The circumstances portrayed by the Article call into play many sacred privileges that have been recognized and refined through decades of experience and inspiration at getting to the truth through fair and trustworthy means. 

Most disturbing to me is the suggestion that the clergy-penitent privilege should be subject to piercing to facilitate government investigations for the enforcement of man’s laws.  It is often stated that “hard cases make bad law.” Northern Securities Co. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting) (stating that “[g]reat cases, like hard cases, make bad law”).   Difficult cases like MJ’s case tug at the heartstrings tempting courts and lawmakers to make sympathetic exceptions to legal rules in one case that may prove unworkable or ill-advised in the long run over many cases.  See e.g., Greater Park City Co. v. United Park City Mines Co., Case No. 120500157 Memorandum Decision and Order dated May 21, 2014 at 39 file in the Third District Court for Salt Lake County, Utah.  I hope the public, judges and lawmakers do not succumb to this temptation. 

Religion matters.  Society cannot suffer government intrusion into the clergy-penitent relationship without seriously compromising our First Amendment rights to the free exercise of religion and the separation of church and state.  Accordingly, I oppose government intrusion into the sanctity of the clergy-penitent relationship.  The Article suggests it is of no consequence that the clergy should be compelled to report confessions of child abuse.  However, what could be a more insidious government intervention into the free exercise of religion than requiring clergy to breach the clergy-penitent privilege for the sake of government criminal investigations?  Government intrusion into the clergy-penitent relationship would completely undermine the primary role of clergy, in particular the role of assisting the penitent in the process of repentance.  Few if any penitents would come to their clergy with confessions if they knew their clergy might be compelled to disclose their confessions.  Few penitents would find the strength to repent and change their ways.  Fewer would be encouraged to turn themselves in and make restitution.  To those disturbed by the Article, I hope this helps you understand the importance of the clergy-penitent privilege and privileges in general in our society and judicial system.  Above all, I hope this helps you think more clearly about the adverse consequences to the free exercise of religion that would follow from mandatory clergy reporting laws conceived in disturbing facts that certainly tug at the heartstrings but are ill-advised in the long run.
Copyright © Daniel L. Day 2022