Abuse victims ask Arizona high court to reconsider its clergy-shield ruling

The justices also declared that any intervention by the courts would violate the First Amendment, making clear they don’t think any changes to Arizona law aimed at forcing clergy to report abuse would be constitutional.

But the attorneys for the victims said the Supreme Court ignored the text of Arizona law and key facts in this case and handed churches unreviewable power to self-declare what is “confidential” communication and what isn’t. They want the court to overturn its ruling.

“It is a dangerous ‘public policy’ to allow and encourage powerful religious organizations to unilaterally declare that all concealed child sexual abuse is privileged and ‘confidential’ retroactively,” Flagstaff attorney John Trebon wrote on behalf of the victims. “The ‘public policy’ of encouraging child abuse to be concealed was unequivocally and affirmatively created by the Arizona Supreme Court and not by the Arizona legislature.”

The result, Trebon told the high court, is that there will be no point in abuse victims going to church leaders in Arizona because they now have no legal responsibility to help them.

“The incentive and delegated authority given to the Church will silence their cries for help and their abuse will be concealed,” he wrote. “Child sex abuse within powerful religious organizations in the U.S.A. has been rampant. The Arizona legislature tried to encourage reporting. The Opinion in this case creates public policy to conceal abuse.” 

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. 

In 2010, Adams confessed the abuse 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 died by 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. Herrod also informed the U.S. Department of Homeland Security that Adams, an employee of the federal agency, had confessed to the sexual abuse. The appellate court 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 Arizona Supreme Court 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, the high court ruled. The First Amendment bars a jury from evaluating whether the bishops followed their own religious doctrine in deciding not to report, the Supreme Court concluded, because the courts must defer to a church’s own characterization of what counts as a confession and what its doctrine requires.

Attorneys representing Adams’ children argue that the court erred in its opinion because it relied on a “skewed interpretation” of Arizona’s mandatory reporting law, arguing that the law and other similar laws do not violate the First Amendment. 

“The result is painfully ironic because the Opinion utilizes a statute designed to protect children as the tool to forsake them,” Trebon wrote. “The Opinion eviscerates the protections provided by mandatory reporting statute. In its place, the Court creates an obvious incentive for religious organizations of all stripes to conceal child abuse — all under the ironic banner of religious freedom.” 

The attorneys note that Leizza Adams heard her husband’s confession repeated “in a manner that no reasonable person would believe as ‘confidential,’” adding that Herrod even told her in a meeting the LDS Church now says was confidential that she should report the abuse to police. They also note that Adams’ confession was learned of by “at least 35 people” and the abuse continued for seven more years. 

“There is no other known case in the United States that has found that a neutral child abuse reporting statute violates the First Amendment unless the statute is purposefully construed to eviscerate the requirement that clergy report communications of abuse that were not ‘confidential,’” Trebon argued. “The ‘exemption’ and the ‘privilege’ contain the same elements and are essentially identical, despite the Opinion’s efforts to differentiate them. They are mirror images.” 

The victims also argue that the ruling “virtually eliminates mandatory reporting for clergy” and expands the ability of religious institutions to be shielded from civil liability for abuse within their walls. 

“If this decision stands, the practical consequences for public safety and the rule of law are dire,” Trebon wrote. “The Court has essentially established an absolute immunity for religious institutions that fail to report child sexual abuse, insulating them from civil liability and judicial oversight even when an abuser reveals his crimes in the presence of multiple people over a period of years that were never confidential.” 

Trebon also emphasized the extreme nature of the abuse in the case: Adams’ first victim was five years old when they told Herrod, who was also the family’s doctor, that Adams had molested her and videotaped it. 

Failing to report ongoing child sexual abuse in violation of a mandatory statute is a purely secular dispute affecting third-party victims, not an internal dispute over church governance, Trebon argued.  

“The bishop (and his successor who also know of the child rape) saw the victim in church every Sunday for the next seven years and did nothing to help her nor her siblings who were also raped by their father,” he wrote. “The horrific sexual acts on these infants continued until the victim was 12 years old, when a gruesome 9-minute video of the horrific abuse came to the attention of law enforcement in New Zealand.” 

The National Center for Missing and Exploited children documented over 9,000 different files of child sexual abuse material related to the Adams case, according to the attorneys. 

“The net result of this decision is that Arizona will attract religions and criminals that wish to conceal sexual abuse under the guise of religious freedom,” Trebon wrote. “The soul of our society is revealed in the manner that we protect our children.”

SUPPORT: YOU MAKE OUR WORK POSSIBLE