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AP Story about Abuse


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I have long been a proponent of Bishop’s always having member of the Young Women’s Presidency’s, be available during any “one on one” meeting, when the Bishop has to interview a young lady, so there is not misunderstanding, or misbehavior. Also, if necessary have this with young men, “one on one” meetings. But Bishops should always have another Female adult member,  anytime he is meeting with a young lady; Always! 

 

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1 hour ago, SeekingUnderstanding said:

The church took days to write their response

I can point to plenty of politicians (and other famous people) as to evidence of why you shouldn't just spout out the first thing that comes to your mind.

Edited by JustAnAustralian
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43 minutes ago, JustAnAustralian said:

I can point to plenty of politicians (and other famous people) as to evidence of why you shouldn't just spout out the first thing that comes to your mind.

My point was not that they should have published sooner, but that they carefully chose their words and meant what they said. 

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On 8/18/2022 at 3:36 PM, smac97 said:

Hmm.  I'm not sure this will hold up on appellate review. 

First, I'm not sure the privilege is waived if the confessor has insufficient feelings of "repentance," or else exhibits "'a profound disregard' for the principles of the church."  I suspect the judge is just making that stuff up.

Second, "waiver" is, in a civl context, usually a voluntary relinquishment of a known right.  Adams was posting the videos online, but doing so anonymously (per the AP article, he was only caught using facial recognition software after a New Zeland farmer was caught with the videos on his phone).  I think it's hard to characterize anonymous online posting, however evil and despicable, as a waiver of privilege relative to his communications with the bishop.

Third, "waiver" typically cannot be inferred.  It has to be pretty obvious that the individual intended to waive.  

I wonder, however, if Leizza's presence in the counseling sessions eliminates the privilege (apparently not, as that would be a more direct path toward disregarding the privilege, yet the judge does not seem to be taking it).

I read through the court's decision on the implied waver.  Unfortunately, the pdf is really large in size (140kb after compression) so I can't upload it.

In the decision on the implied waiver of Adams, the court wrote:

Quote

But the privilege was impliedly waived by Adams, through his subsequent, overtly public admission of his sexual abuse of his children.  Prior of 2017, Adams posted of videos of the sexual abuse of his children on the world-wide internet; he boasted on social media of his ability to have sex with his children with the acquiescence of his wife; and then in 2017, during interrogation by law enforcement, he admitted his sexual abuse of his children.

Any one of these acts would qualify as a "'course of conduct inconsistent with observance of the privilege.' Bain v. Superior Court, 148 Ariz. 331, 334, 714 P. 2d 824, 827 (1986)." Archibque, 221 P. 3d at 235-6. Taken together, Adams' overt acts demonstrate a lack of repentance and a profound disregard for the "discipline enjoined by the church." Hs acts can only be characterized as a waiver of the clergy-penitent privilege.

 

The court case "Bain v Superior Court" that it is referencing can be read at https://law.justia.com/cases/arizona/supreme-court/1986/18353-sa-2.html.  The pertinent paragraphs (I think) are:

Quote

Moreover, the court stated:

"A waiver is to be predicated not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield * * *."

94 Ariz. at 158, 382 P.2d at 568 (quoting 8 WIGMORE ON EVIDENCE 855, § 2388 (McNaughton Rev. 1961)).

Over 20 years have passed since Throop adhered to the common law principle of implied waiver. During this period, no legislative action has been taken to negate the effects of this holding. Thus, the law of Arizona relating to waiver of the physician-patient privilege is two-fold: where a privilege holder (1) offers himself as a witness and voluntarily testifies with reference to privileged communications concerning the condition, § 12-2236; or (2) places a particular medical condition at issue by means of a claim or affirmative defense, Throop, supra, then the privilege will be deemed waived with respect to that particular medical condition.

We believe the same rule should be applied to the psychologist-patient privilege. Since § 32-2085 specifically requires that the psychologist-patient privilege be placed on the same basis as that between attorney and client, and the waiver provision of § 12-2236 applies equally to the attorney-client privilege and the physician-patient privilege, the common law rule of Throop should logically also be applied in those cases involving the psychologist-patient privilege.[1] Thus, we hold that where a client waives the psychologist-patient privilege in writing or or in court testimony, pursuant to § 32-2085, or pursues a course of conduct inconsistent with observance of the privilege, he has consented to disclosure of the information and has thereby waived the psychologist-patient privilege as to the confidential communication.

It also references a court case State v Archibeque.  This is a case that actually involves the church and priest-penitent privilege.  It can be read at https://casetext.com/case/state-v-archibeque-1.  This case appears to clears up the question on whether Leizza's presence in the bishop's office waives the privilege.

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16 Applying a similar approach here, we conclude that the clergy-penitent privilege under § 13-4062(3) was not waived by the presence of Archibeque's wife if Archibeque believed the communication would remain private and such belief is reasonable.

The State v Archibeque also refers to another case related with the church and priest-penitent privilege.  The case is Church of Jesus Christ v Superior Court and can be read at https://casetext.com/case/church-of-jesus-christ-v-superior-court.  This case is probably the strongest reason why Adams has waived his privilege.  In the decision, the court wrote:

Quote

that Ray, in disclosures to the Mesa Police Department, waived any privilege that might otherwise have applied to his conversations with or to conversations among Standage, Bailey, and Taylor; and

 

Adams disclosed the child abuse to the police when he was arrested.  That appears to mean that Adams has waived the privilege that applied to his conversations with both bishops and probably the disciplinary council.

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12 minutes ago, webbles said:

Quote from court:  Adams' overt acts demonstrate a lack of repentance and a profound disregard for the "discipline enjoined by the church."

That has nothing to do with the privilege though, does it?  If a thief admits his crime to his lawyer and goes out and steals again, that doesn’t negate attorney privilege.  Confession may be in hope of repentance, but is not suddenly not a confession if the person continues to sin.  
 

The waiving of the privilege by confessing to the police makes the most sense, imo.  I agree with that one.

Putting the videos online…it was anonymous, was it not?  Also, wasn’t it to a specific audience rather than general?  Though the limit is probably irrelevant as long as it was to someone not having confidentiality privilege.  But if anonymous, it means he was trying to hide his identity, so at that time his intent would be a desire to keep the confession confidential, unlike when he makes another confession.

Edited by Calm
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13 minutes ago, Calm said:

That has nothing to do with the privilege though, does it?  If a thief admits his crime to his lawyer and goes out and steals again, that doesn’t negate attorney privilege.  Confession may be in hope of repentance, but is not suddenly not a confession if the person continues to sin.  

I am not a lawyer so I could easily misread things.  But I think a closer comparison would be if a thief admits his crime to his lawyer and then goes and tells other people about his crime.  By not keeping it confidential between him and his attorney, he is waiving it.  I'm not sure how many more people he would have to tell it to, though, before the waiver is implied.  Here's a another quote from the "Church of Jesus Christ v Superior Court":

Quote

We disagree. We hold that the clergyman/penitent privilege, like other privileges, is susceptible to implied waiver through conduct inconsistent with the maintenance of conversational privacy, and we find such waiver in the conduct of Ray.

So, if the thief is using conduct "inconsistent with maintenance of conversational privacy", then he is waiving it.  Sounds like broadcasting it to other people would fall under that definition.

 

18 minutes ago, Calm said:

Putting the videos online…it was anonymous, was it not?  Also, wasn’t it to a specific audience rather than general?  Though the limit is probably irrelevant as long as it was to someone not having confidentiality privilege.  But if anonymous, it means he was trying to hide his identity, so at that time his intent would be a desire to keep the confession confidential, unlike when he makes another confession.

The initial video that was used to arrest the abuser included his face.  So, I think that qualifies as being not anonymous.

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The Arizona court also ordered that the clerk who was attending the disciplinary court has no priest-penitent privilege.  That order confuses me.  Imagine that I go talk to an attorney.  The attorney has a clerk present to take notes.  The communication between myself and the attorney is covered by the attorney-client privilege.  But could the state just depose the clerk and get all the details?  Simple searching online seems to say no.  I don't find anything that says otherwise.  I would assume that any clerk/secretary that is there to help with meetings that fall under a attorney-client, doctor-patient, priest-penitent, etc privilege would be under the same privilege.  Otherwise, courts could just do an end run around those privileges.

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11 hours ago, webbles said:

I read through the court's decision on the implied waver.  Unfortunately, the pdf is really large in size (140kb after compression) so I can't upload it.

In the decision on the implied waiver of Adams, the court wrote:

 

The court case "Bain v Superior Court" that it is referencing can be read at https://law.justia.com/cases/arizona/supreme-court/1986/18353-sa-2.html.  The pertinent paragraphs (I think) are:

It also references a court case State v Archibeque.  This is a case that actually involves the church and priest-penitent privilege.  It can be read at https://casetext.com/case/state-v-archibeque-1.  This case appears to clears up the question on whether Leizza's presence in the bishop's office waives the privilege.

The State v Archibeque also refers to another case related with the church and priest-penitent privilege.  The case is Church of Jesus Christ v Superior Court and can be read at https://casetext.com/case/church-of-jesus-christ-v-superior-court.  This case is probably the strongest reason why Adams has waived his privilege.  In the decision, the court wrote:

 

Adams disclosed the child abuse to the police when he was arrested.  That appears to mean that Adams has waived the privilege that applied to his conversations with both bishops and probably the disciplinary council.

Thank you for putting in such a substantial effort to understand the issues and bringing it here. 

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8 hours ago, JustAnAustralian said:

Any idea why we aren't hearing anything about the other two bishopric councillors who would have been in the disciplinary council?

I think there are two reasons:

1. They would have the same priest-penitent privilege of the bishop so until the privilege is broken, it isn't worth it to depose them.

2. They might have only be named late in the lawsuit process.

With Fife (the secretary), he potentially didn't have priest-penitent privilege so he could have testified in the proceedings and he was also the initial family to take in the kids after the father's arrest.  So his deposition had two prongs of questioning.

It is possible that the councilors have already been requested to be deposed.  There is a request by the plaintiff to depose almost every member in the ward.  I didn't do an exact count but the list of names was pretty long and the ward only has ~30 adult members.  The plaintiffs wanted to depose everyone to show that it was common knowledge that the children were abused.  This is why they deposed Reynolds (the woman who I uploaded the deposition in the other thread).  She, though, is a slightly different case.  She came to the plaintiffs lawyer independently.  She told the plaintiffs lawyer about the general knowledge and gave a written statement.  This is premise on why the plaintiffs lawyer wants to depose everyone.  She (the lawyer) has one witness who says it was common knowledge so she is looking for more witnesses to attest to that.  Other than Reynolds, though, everyone else who has been deposed or given a statement has denied Reynolds statements (this would be the secretary, the two bishops, and the visiting teacher).

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