Update on AZ Abuse Case

[smac97]

We previously had a discussion (also discussed here) about Paul Adams, a man in Arizona who abused his children, who was excommunicated for his abuse, and who later committed suicide.

And update: Lawsuit: LDS Church officials, teacher knew of abuse but kept silent

Quote

A lawsuit filed Monday charges that two Mormon bishops and a teacher failed to report a Bisbee father's repeated sexual and physical abuse of three of his children, despite a state law that makes reporting such offenses mandatory.

It argues that the "clergy-penitent privilege" in the law, which keeps confessions confidential, does not apply to such cases. The teacher, a former border-patrol agent as well as the children's Sunday school teacher, had a clear duty under the law in both of her roles to report the abuses to police, the suit alleges.

"Each of the Defendants had personal observations of the abuse, and also knew of the abuse outside of any confidential communication," the complaint, filed in Cochise County Superior Court, alleges. The father's abusive practices were discussed by church officials in routine meetings, and led to his excommunication in 2015 after church officials learned of his abuse of his daughter, then age 5.

This article goes on to include details I had not seen previously:

Quote

The lawsuit, filed on behalf of three of the six children of Paul and Leizza Adams, details Paul Adams' repeated sexual abuse of his daughters over a seven-year period, including the rape of his infant daughter. Paul Adams was indicted on 11 counts of child sexual abuse in 2017 and was awaiting trial when he hanged himself in his prison cell later that year.

Leizza Adams, the mother, was convicted for child abuse in 2018 and was released from Perryville state prison in early October, state records show.

The children have since been adopted by various families and have different last names than their parents.

I am glad to hear that the children are away from their parents, and I hope they get the help and support they need.

Quote

The suit names the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints as well as the Corporation of the Presiding Bishop of the Church.

In a statement Monday, an attorney for the church, Bill Maledon, wrote:

Quote

This tragic abuse was perpetrated by the young victims’ own father who died of suicide in jail while awaiting trial. As clergy, the bishop was required by Arizona law to maintain the confidentiality of the father’s limited confession.

This is an important point.  "{T}he bishop was required by Arizona law to maintain the confidentiality of the father's limited confession."  

I suspect the attorneys in this case will expand upon this in later filings in this case.  One part of the legal analysis could be that the privilege, if broken, could lead to evidentiary problems for the prosecutor.  This is called the "Fruit of the Poisonous Tree" doctrine, summarized here:

Quote

The "fruit of the poisonous tree" doctrine was born out of fourth amendment concerns over improper police conduct in the gathering of evidence. 

Generally, evidence obtained through the exploitation of illegal police conduct must be excluded from evidence at trial. This exclusionary rule deprives the prosecution of evidence tainted by official wrongdoing and thereby discourages future improprieties. 

An exception to the exclusionary rule is the "inevitable discovery doctrine."  The exception serves to block the setting aside of convictions that would have been obtained without police misconduct.  If the prosecution can establish by a preponderance of the evidence that the information inevitably would have been discovered by lawful means, then the evidence should be received.

The above case was in Illinois, and extended the "Fruit of the Poisonous Tree" doctrine to "cover more than police misconduct cases, but also violations of the clergy privilege by clergymen."

As I read this case, in Illinois, it appears that if a member of clergy notifies law enforcement about a confession of abuse, in violation of the priest/penitent privilege, then any evidence (the "fruit") collected by the police consequent to that notification (the "poisonous tree") cannot be used as evidence aggainst the accused party.

There are exceptions and limitations to this, of course.  From the same link:

Quote

In Nix v. Williams, the Supreme Court recognized the "inevitable discovery" exception to the rule requiring the exclusion of evidence obtained as a result of a violation of a defendant's constitutional rights. The court in Nix held that evidence arguably tainted by a prior illegality may be introduced if the prosecution is able to show that "the evidence in question would inevitably have been discovered without reference to the police error or misconduct." The rationale for the "inevitable discovery" exception is that, while "the prosecution is not to be put in a better position than it would have been in if no illegality had transpired," the prosecution should not be put "in a worse position simply because of some earlier police error or misconduct."

As you can see, the law here becomes pretty complex.  But the gist of it is that a well-meaning clergyman who violates the privilege may very well totally screw up law enforcement's ability to prosecute a wrongdoer.  How this would turn out in Arizona, I don't know.  The law changes all the time, and varies in many ways from state to state. 

Back to the quote from the Church's attorney:

Quote

Quote

Notwithstanding, the bishop took the few details he had and made efforts to protect the children, primarily through the mother.

Hmm.  I think this "limited confession" and "few details" stuff will become significant here.

I think bishops are, like most decent people, reluctant to ask invasive questions, particularly as pertaining to very sensitive issues like this.  This would be particularly so if the individual is not forthcoming.  Mr. Adams was apparently like this.  Moreover, my understanding is that Mr. Adams was an agent with U.S. Customs and Border Protection.  As a law enforcement officer, he may have received training about legal privileges, such as attorney/client and priest/penitent privileges.  His knowledge regarding such matters could have affected the amount of information he disclosed to his bishop, and also affected what he told his wife to say (or not say).

More from the statement by the Church's attorney:

Quote

Quote

The bishop urged the family to report the abuse or give him consent to do so, but they refused.

I think this is an important point.  The bishop apparently did what he was supposed to do.  What he was required by law to do (and abstain from doing).

I suspect Mr. Adams knew enough about the priest/penitent privilege to A) only disclose to his bishop just enough information to assuage his guilt, but not to put him in legal jeopardy, and B) instruct/threaten his wife to cooperate in withholding information from the bishop.

Quote

Quote

The bishop also convened a church disciplinary council and condemned the limited conduct he knew of in the strongest terms by excommunicating Mr. Adams from the Church in 2013.

Hmm.  I would have thought the stake president would have convened the council.

In any event, the bishop did what he could per D&C 134:10: "We believe that all religious societies have a right to deal with their members for disorderly conduct, according to the rules and regulations of such societies; provided that such dealings be for fellowship and good standing; but we do not believe that any religious society has authority to try men on the right of property or life, to take from them this world’s goods, or to put them in jeopardy of either life or limb, or to inflict any physical punishment upon them. They can only excommunicate them from their society, and withdraw from them their fellowship."

The Church is not an investigative or law enforcement agency.  And it is bound by the law, including laws pertaining to the priest/penitent privilege.  The law can sometimes create complexities, the reasons for which are not immediately apparent.  Legal privileges are examples of this.  As an attorney, I have on occasion had access to very sensitive information from my clients.  In many circumstances I have the affirmative legal duty to not disclose this information to anyone, including law enforcement.  In some few circumstances (which vary by type, jurisdiction, etc.), bishops can likewise be legally constrained to not disclose information.

The legalities pertaining to the priest/penitent privilege can be quite complex.  And they vary from jurisdiction to jurisdiction.  And they can and do change over time.  I am therefore grateful that the Church works hard to stay abreast of such matters, and that it maintains a helpline for bishops who are thrown into these murky and choppy waters.

Quote

Quote

It was not until law enforcement made an arrest of the father that the bishop learned of the scope and magnitude of the abuse that far exceeded anything he had heard or suspected.

This had previously been my surmise.

Quote

Quote

The Church of Jesus Christ of Latter-day Saints and its clergy worked to handle this matter appropriately consistent with Arizona law. It has also tried to assist the victims and remains willing to commit significant resources to aid and assist these children. The Church has no tolerance for abuse of any kind. Our hearts ache for all survivors of abuse and go out to the victims in this case. The Church will continue to offer assistance to these young victims, but the Church will also vigorously defend against this baseless lawsuit.

 

For some, the last statement ("the Church will also vigorously defend against this baseless lawsuit") can come across as a bit . . . cold.  I think it's necessary, though.  If the Church followed the law, then it shouldn't be punished for that, and it is entitled to "vigorously defend" itself.

Back to the article:

Quote

Other defendants are John Herrod, who served as bishop of the Bisbee Ward from 2009 to 2012, and his successor, Robert Kim Mauzy. It also names the medical practice that Herrod ran. Herrod was the Adams family's doctor.

Also named is Shaunice Warr, a former agent with U.S. Customs and Border Protection, where she worked along with Paul Adams. She also was a member of the church and was appointed by the church's Relief Society to be a visiting teacher to the family, the lawsuit states.
...
Warr knew of problems in the Adams household through her role as a visiting teacher, as well as through her friendship with Leizza Adams.

"Despite the overwhelming evidence of Paul’s abusive and psychotic behavior toward his children and wife, Warr failed to report Paul’s abuse of Plaintiffs to any government authorities on the instructions of Church leadership," the claim alleges.

Ms. Warr would not be covered by the privilege, I think.  But I'll be curious as to A) what she knew, and B) whether she had a legal duty to disclose.  If she knew about the abuse but had no legal duty to disclose it to law enforcement, then the lawsuit will fail. 

This is a separate question from whether Ms. Warr, if she knew about the abuse, had a moral duty to contact law enforcement, which I think would be the case.

Also, if Ms. Warr knew about the abuse and reported it to the bishop, then the privilege issue would probably not apply.  As I understand it, if the bishop learns of allegations of abuse by someone other than the abuser, then there is no privilege.  I assume this will be explored during the lawsuit.

Nevertheless, whether there was "overwhelming evidence" is likely going to be a disputed issue.  There are all sorts of ways people can keep family secrets.  Think of how often extended family members, neighbors, friends, etc. are shocked to find out about abuse by someone they know (as evidenced by the recent issues pertaining to Tom Kimball).

Quote

The suit seeks findings of negligence, breach of fiduciary duty, and intentional and negligent infliction of emotional distress against the defendants. It also seeks a finding of medical malpractice against Herrod, given his role as the family's physician. The filing asks the court for unspecified compensatory and punitive damages.

The case revolves around Paul Adams' abuse of his children and the people who knew of the abuse and did little to stop it.

When Paul Adams sought counseling for his pornography addiction from his Mormon bishop, Herrod at first brought in Paul Adams' wife, hoping her knowledge of the sexual and physical abuse would put an end to it. 

That didn't work, according to the lawsuit. Herrod then asked church leadership for permission to report the abuse, but was instead directed to the church's helpline.

He was advised to continue counseling and was told he did not need to report the abuse due to the "clergy-penitent privilege" in the law.

Herrod's successor, Mauzy, also called the helpline about Paul Adams and received the same advice.  Helpline calls regarding sexual abuse are referred to the Salt Lake City law firm of Kirton McConkie.

This sort of agenda-driven reporting is aggravating.  Something like "the bishop was directed to seek legal advice from an attorney as to how to comply with the law" doesn't sound as scintillating.  And "was told he did not need to report the abuse"  makes it sound like the bishop had the option of reporting, but chose not to.

Quote

"In other words, the Church implements the Helpline not for the protection and spiritual counseling of sexual abuse victims, as professed in Church doctrine and literature, but for Kirton McConkie attorneys to snuff out complaints and protect the Church from potentially costly lawsuits," the lawsuit states.

Um, what?  This doesn't make sense.  Complaints and "potentially costly lawsuits" tend to arise from bishops not reporting allegations of abuse, as evidenced by . . . the current lawsuit.  So if the Church was really interested in "snuff{ing} out complaints and protect{ing} the Church" from litigation, why would it tell bishops in some circumstances to not report allegations of abuse?

Could it be that the Church's attorneys are attempting to comply with the law?

Quote

Without a report to police or child-welfare authorities, the abuse remains hidden. According to the lawsuit, this case came to light after the U.S. Department of Homeland Security followed up on a tip from Interpol about pornographic videos on the internet that were linked to Paul Adams. 

And I'm quite glad that they did that.  Meanwhile, however, the law pertaining to privilege imposes obligations on some segments of society.  Doctors.  Lawyers.  Clergy.

Quote

Attorneys representing the children acknowledge the clergy privilege, but argue the bishops and Warr knew of the abuse outside of any confessional-type setting. For example, Paul Adams' excommunication was directly related to his abusive behaviors.

Besides, attorney Lynne Cadigan said, state law does not bar anyone from reporting child abuse. It's church policy to not report, she said, a policy designed to protect the church from costly and damaging litigation. "It's not against the law, it's against church policy," she said.

Well, color me confused.  I will be following this case to figure out how the law in Arizona works.

But again, the allegation here is weird.  If the Church's policy is "designed to protect the church from costly and damaging litigation," then wouldn't the policy favor reporting child abuse (since litigation so often arises from a failure to report)?

Quote

John Manly, another attorney for the children, said the case reminds him of the Catholic Church in the late 1990s and early 2000s.

"It's like the Mafia hiring a pastor and using the pastor to hide their crimes," he said.

“What they’re really doing is hiding serial criminal conduct under the guise of religion.” 

Oi.  The attorney isn't doing his case any favors by comparing the Church to the Mafia.

All in all, a terrible story.  I am saddened by it.

Thanks,

-Smac

[bluebell]

JAH posted about this in the news forum.  Such a sad story.

[2BizE]

I suspect the bishops contacted the legal hotline and received advice on how to address the issue back when the abuse was occurring.  That will likely come out in court.

[Calm]

44 minutes ago, 2BizE said:

I suspect the bishops contacted the legal hotline and received advice on how to address the issue back when the abuse was occurring.  That will likely come out in court.

It already has

[Calm]

7 hours ago, smac97 said:

Hmm.  I would have thought the stake president would have convened the council.

If he was not an elder, wouldn’t it have been a bishop?