Bisbee Abuse Case Appeal Trial Results

[webbles]

The Arizona Appeals court finally released a Memorandum Decision (so it doesn't create legal precedence).  You can read it at https://www.appeals2.az.gov/Decisions/CV20230293Memo.pdf

They reversed the trial court.  They "conclude that genuine issues of material fact exist as to the Church Defendants’ duty to report under § 13-3620(A)".  The other part of the appeal (around whether or not the late testimony from the Does should be accepted) was denied.

In the decision, they said that the meeting between the bishop, the abuser, and his wife could be construed as a waiver of privilege.  The bishop had already heard the confession and he had invited the wife to hear the confession from her husband.  The appeals court sees that as a non-confessional situation.  The abuser isn't confessing to the bishop, instead he is confessing to his wife.  The bishop is just overhearing it.  And that makes it non-privileged.

The appeals court also sees the excommunication court as a waiver as well because everyone attending the court were not clergy.  I was under the impression that the abuser didn't confess of child abuse in the excommunication court but this might not be proven because it was considered privilege and so no one could say yes or no to the question.

The appeals court also questions whether or not the bishop is even allowed to withhold reporting in the first place.  The specific law has been understood to only cover communication "anchored in the ecclesiastical rules, customs and laws of the applicable religious group" and since the Handbook allows the bishop to break confidentiality to "prevent life-threatening harm or serious injury" (32.4.4), then the communication isn't actually privileged.

 

I'm not surprised by the first argument (meeting between bishop, husband, and wife).  I had initially felt that was a waiver of the privilege.  The second argument is a little iffy for me.  I know in Washington, there was a similar case and it ruled that all participants in an excommunication trial and classified as clergy and I think that is more correct.  The third argument is shocking.  That would basically mean that any confession to a bishop dealing with child abuse is not privileged.

So now we go back to the trial court and do more discovery over whether or not the privilege was waived or not.  I suspect another appeal at some point.

[Calm]

4 hours ago, webbles said:

was under the impression that the abuser didn't confess of child abuse in the excommunication court but this might not be proven b

The wife said he was excommunicated for incest with his mother iirc, but she is so not a reliable witness and this was also secondhand (hearsay?)

Quote

So Leizza Adams had never told you why Paul was ex-communicated until after his arrest?

A Right.

Q How did that come up?

A I think I asked her. I was just curious.

Q Did she answer directly?

A She kind of beat around the bush. And then I kept asking her.

Q. And what did she ultimately answer as to why he was ex-communicated?

A The reason he was ex-communicated?

Q Yes.

A He had sex with his mother.

Q And—

A And he then told the bishop that he had.

Q And then she was told as well?

A Yes, I believe so.

Q And that was, again, years before Paul Adams’

A Yes, it was before he was arrested.

My memory says neither bishop said anything about the excommunication, but it could be wrong.  The former (iirc) bishop trying to be helpful in talking casually to an agent shared some info before he realized what he was doing, but pretty sure that was just about the first confession (the father claimed it was one time and in the past, the wife refuses to report to police, but promised she would keep the kids safe)

Edited July 30, 2025 by Calm

[Calm]

3 hours ago, webbles said:

The third argument is shocking.  That would basically mean that any confession to a bishop dealing with child abuse is not privileged.

Also aren’t doctors and therapists allowed to keep confidentiality unless there is imminent danger to someone without sacrificing confidentiality completely?  Iow, same exception is allowed without vacating the right?

Edited July 30, 2025 by Calm

[webbles]

29 minutes ago, Calm said:

Also aren’t doctors and therapists allowed to keep confidentiality unless there is imminent danger to someone without sacrificing confidentiality completely?  Iow, same exception is allowed without vacating the right?

In the Handbook, the full paragraph says:

Quote

In only one situation should a bishop or stake president disclose confidential information without first seeking such guidance. That is when disclosure is necessary to prevent life-threatening harm or serious injury and there is not time to seek guidance. In such cases, the duty to protect others is more important than the duty of confidentiality. Leaders should contact civil authorities immediately.

I wonder if that bolded part will be argued about in the trial.  The church allows breaking of the confidentiality if "there is not time to seek guidance" but otherwise keeps it confidential.  And in this specific case, all of the known facts show that the bishop did not believe that there was imminent danger and had plenty of time to "seek guidance".

[webbles]

34 minutes ago, Calm said:

The wife said he was excommunicated for incest with his mother iirc, but she is so not a reliable witness and this was also secondhand (hearsay?)

My memory says neither bishop said anything about the excommunication, but it could be wrong.  The former (iirc) bishop trying to be helpful in talking casually to an agent shared some info before he realized what he was doing, but pretty sure that was just about the first confession (claimed it was one time and in the past, the wife refuses to report to police, but promised she would keep the kids safe)

I remember that the counselor (who was at the excommunication) stated that he didn't hear about the abuse till the guy was arrested.  But I think the appeal court is supposed to take the most favorable view for the appellant and since we don't know what actually happened in the excommunication (because of privilege arguments), the appeals court maybe just assumed that he confessed there.  I think it will come down to whether or not an excommunication court is privileged communication or not.  It doesn't look like the court really decided that.

[helix]

This whole thing screams unconstitutional.

On 7/30/2025 at 12:47 PM, webbles said:

The abuser isn't confessing to the bishop, instead he is confessing to his wife.  The bishop is just overhearing it.  And that makes it non-privileged.

The implication is that all clergy need lawyers on standby for confessions: an expensive third party who parses details of a sacred confession to see if it meets legal standards. This becomes an entanglement of government into core religious beliefs and puts a negative burden on religions. The same thing was brought up in the James Huntsman case, that clergy should not have to run their sermons past lawyers and accountants to ensure it meets government legal clarity and muster. 

They were in a religious setting. He was confessing. Because he turned his head directed his confession to his wife shouldn't make the bishop liable for damages. 

On 7/30/2025 at 12:47 PM, webbles said:

The appeals court also sees the excommunication court as a waiver as well because everyone attending the court were not clergy. 

If this stands then priest-penitent privilege is not allowed in the LDS church but is allowed for other faiths with different confession styles. We often require councils with a few more leaders and a clerk to record the meeting. We believe confession belongs in many situations to multiple people, not one. The US government here is defining who is clergy, which gives some religions government sponsored rights while others do not get those rights. That's grossly unconstitutional. 

On 7/30/2025 at 12:47 PM, webbles said:

The appeals court also questions whether or not the bishop is even allowed to withhold reporting in the first place.  The specific law has been understood to only cover communication "anchored in the ecclesiastical rules, customs and laws of the applicable religious group" and since the Handbook allows the bishop to break confidentiality to "prevent life-threatening harm or serious injury" (32.4.4), then the communication isn't actually privileged.

This again reminds me of the James Huntsman case. Initially on an appeal two judges redefined what tithing meant for the church, and tried to use church texts to make their case. The later appeal ruled against that unanimously and viciously shot down that idea. Religions enjoy broad latitude to make these definition calls for themselves. Government can't redefine a religion's own words for them.

This Arizona lawsuit has been appealed to their Supreme Court, and I do not expect this ruling to survive as is. It's got major First Amendment issues.

 

Edited July 31, 2025 by helix

[helix]

16 hours ago, webbles said:

Quote

In only one situation should a bishop or stake president disclose confidential information without first seeking such guidance. That is when disclosure is necessary to prevent life-threatening harm or serious injury and there is not time to seek guidance. In such cases, the duty to protect others is more important than the duty of confidentiality. Leaders should contact civil authorities immediately.

I wonder if that bolded part will be argued about in the trial.

Yet the ruling states it "raises the question of whether the Church Defendants violated Church doctrine by not reporting Paul to the authorities"

That should never, ever be stated in a ruling. Judges don't get to decide how correctly a church followed its own doctrine. Especially when the church's handbook has that glaring "there is not time to seek guidance", phrase the judges glossed over. Every fact in this case indicates the only thing confessed was a much earlier one time incident of abuse, and the bishops felt due to the confession the abuse had ended.