(5th) Update on Arizona Abuse Case

[Calm]

Why is my memory so good when it’s not necessary?

Quote

So are you saying that the first time you learn of the basis for Paul Adams' ex-communication is, um, was after Paul Adams' arrest?

A I had heard rumors. But the first time I heard exactly what it was for, yes, was after his arrest.

Q 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.

https://bhroberts.org/records/XYNbob-IqBGdb/shaunice_warr_offers_testimony_in_the_mitigation_sentence_hearing_of_leizza_adams

Edited February 5 by Calm

[webbles]

1 hour ago, Calm said:

Why is my memory so good when it’s not necessary?

https://bhroberts.org/records/XYNbob-IqBGdb/shaunice_warr_offers_testimony_in_the_mitigation_sentence_hearing_of_leizza_adams

That's from the visiting teacher.  There was another deposition from, I think, the ward secretary.  He was at the disciplinary council and so would have had first hand knowledge of what was spoken there.  I can't find my copy of it, though.  The children's attorney wanted him to testify what actually happened at the disciplinary council and the church's attorney kept objecting.  But one of the questions that did get answered was when he first heard of the child abuse and he said that it was after Adams was arrested.

[Calm]

I should have kept looking at the Mormonr list of primary documents.  Forgotten about some of them.  Mauzy makes it clear he was aware of only one occurrence prior to the arrest.  The rest he keeps confidential.  It sounds like my interpretation of his “yeah” as acknowledgment rather than agreement was accurate….probably because I had read this statement eons ago.

Herrod also made a sworn statement he was only aware of one time.

No ward secretary statement, which surprises me if it’s out there somewhere.

Okay, in the Mauzy deposition he says ward clerk by the name of Elseworth is that helps you find it.

From another it’s spelled Ellsworth.

Edited February 5 by Calm

[Calm]

This has Richard Fife as the secretary rather than the counselor:

https://bloximages.newyork1.vip.townnews.com/kvoa.com/content/tncms/assets/v3/editorial/7/c5/7c5207f6-1f52-11ed-b52b-5fae179e47ad/62fed3a48f0b0.pdf.pdf

Webbles got this earlier:

Quote

 

In the second question, they didn't say that the ward clerk was covered.  They said that the judge erred in deciding that Brother Fife was the ward clerk.  Brother Fife had been both a ward clerk and 1st councilor.  And the Church states that he was the 1st councilor during that time period and in his own deposition, Brother Fife said he was not the secretary.  A 1st councilor is definitely a clergy and so is protected.  They didn't rule on whether a ward clerk or anyone else attending the hearing would be covered.

Also this:

Quote

It is from Brother Fife's deposition.  I don't know of any place besides the court website to read it.  The file number is 2028896.  Here's some quotes from it:

https://www.mormondialogue.org/topic/75009-4th-update-on-arizona-abuse-case/#findComment-1210129391

 

Edited February 5 by Calm

[Calm]

Finally reading the article.  Not impressed

Quote

Mauzy oversaw efforts the next year to excommunicate Adams during a process that included Adams’ making some further type of confession of abuse

This seems to me to be contrary to evidence give.  Anyone know where they got this idea (I am guessing the plaintiffs’ claim where there were quite a few factual errors though I don’t remember this particular one)?

Iirc, the only details shared about the excommunication were related to possibly adultery (members were aware of affairs, he had problems at work due to at least one of them) and incest with his mother (from the wife who was not a trustworthy witness at all, imo).

Fife, who was at the excommunication as the first counselor, stated he was not aware of the abuse until after the arrest.  His family had also taken in the girls to care for them at least for three months after the arrest.

Edited February 5 by Calm

[webbles]

7 hours ago, Calm said:

https://www.mormondialogue.org/topic/75009-4th-update-on-arizona-abuse-case/#findComment-1210129391

Thanks for finding that old comment of mine.  That is the deposition I'm thinking of.  I must have deleted my copy.  To repeat it, the children's attorney said:

Quote

He just testified that in 2017, when Paul Adams was arrested, and it was all over the news, and he took the children into his home, he had no idea, really, why it may have something to do with child abuse. This is a man who sat through his excommunication hearing in 2013.

So Brother Fife was at the disciplinary council and yet didn't know about any child abuse.

[webbles]

The oral arguments for the appeal on the case against the medical practice of the bishop finished a few days ago.  I listened to it and here's some brief notes (I'm not a lawyer so I could be completely wrong in my understanding):

• The appeals court provided a draft opinion to the parties before the arguments.  They specifically said the draft isn't the final but is one judge's opinion.  Based on how the plaintiff's attorney argued, it seems like the draft opinion was going to rule in favor of the bishop.
• The plaintiff's argument is that summary judgment shouldn't be given because the evidence should be weighed in their favor and there is plenty of inference that the bishop should have had a reasonable suspicion.
• The bishop (as the mother's doctor) did 6 house calls over the years.  In many of these visits (possibly all of them), he wasn't the bishop anymore.  Some of the house calls were after the second girl was born.  That is probably why some articles have said that the bishop knew of the abuse of the second girl.
• The plaintiff would prefer this case to be decided after the church case.  The trial judge surprised them by splitting up the cases.
• The plaintiff feels that information gained from the outside of the medical care should be used by a doctor to determine if they should report.  There was a lot of discussion around this and around a specific line in the Arizona law that affects this.  In 13-3620, it says "ho develops the reasonable belief in the course of treating a patient".  Should only information gained during the medical visits be included or should more information be included.
• The defendant feels that this case is specifically around what information the bishop received as a medical doctor.  And, per the mother's statement, the Jane Doe 1's statement, John Doe's statement, and the bishop's statement, there is no evidence that any abuse was discoverable during the medical visits.
• The defendant pointed to Avitia v Crisis Preparation & Recovery, Inc which is an AZ Supreme Court decision dealing with whether a doctor should have reported a possible abuse situation.  The mother killed her children and the father argued that the doctor's should have reported possible abuse.  No one at the time knew of any abuse but the doctor's knew that she was dangerous (she was involuntarily medicalized for a time).  The Supreme Court ruled that the doctor's don't have to report on a possible future abuse, only on actual abuse that they learn about.  It seems like the defendants are arguing that the bishop only knew of the one abuse and didn't know of any reoccuring abuse so didn't have a requirement to report anything.

 

[webbles]

The oral arguments for the appeal on the case against the church was today.  Here's some brief note:

• The appeals court provided a draft opinion to the parties before the arguments.  Based on the arguments, it sounds like it recommended for the trial court to reopen the case.  It sounds like the reason was because of late testimony (provided by the youngest children) that affect the facts of the case (specifically around Bishop Mauzy).  It also sounds like it would keep the confidentiality ruling in place so any communication with the bishops (and disciplinary council) would still be out of bounds.  So both sides agreed and disagreed with the opinion.
• The plaintiff argued that the perpetrator had waived his privilege shortly after the confession and also while he was in prison.  The earlier waving was when the bishop brought him and his wife into the office and had him confess to his wife.  The plaintiff argued that that was a non-confessional setting and so should be considered a waiver.  The later waiving was when the perpetrator spoke on a recorded phone to the second bishop.  One judge pointed out that this second waiver would only open up discovery.
• The plaintiff argued the judges to overturn an earlier judgement (I think it was the previous appeal dealing with whether the perpetrator had waived his privilege) because if they go back to the trial court without that overturning, their hands will be tied behind their back as all communication will be considered privileged.
• The defendant argued that the late testimony should be excluded because it is prejudicial.  They argued that the details provided to them about what the children could testify about didn't include the details that they later testified about.  And so that is why they didn't dispose the kids earlier.
• The defendant also argued that the law states a "reasonable belief" which is a higher standard than a "reasonable suspicion" and the information that the bishops learned outside the confession wasn't enough to warrant a "reasonable belief".  One judge pointed out that that should be decided by the jury, not by the appeals court.

[Calm]

How old were the youngest at the time of the arrest?

[smac97]

An update:

Quote

Abuse victims say Mormon bishop neglected duty to report

A three-judge panel on Arizona’s court of appeals issued a draft decision siding with the plaintiffs, finding that clergy-pertinent privilege didn’t exempt a Mormon church leader from reporting evidence of child sexual abuse.

TUCSON, Ariz. (CN) — Three children sexually abused by their father asked the Arizona Court of Appeals to reverse a summary judgment action clearing the children’s physician, who didn’t report the abuse because it was disclosed to him under religious confession.

The children’s attorney argued Tuesday that John Herrod — bishop of a small Mormon congregation in Bisbee, Arizona — waived his clergy-pertinent privilege to keep the abuser’s confession confidential when he told the children’s mother about the abuse. The plaintiffs asked the court to reverse a lower ruling that says Herrod never waived that privilege. 

Paul Adams sexually abused all six of his children for at least seven years until his arrest, confession and subsequent suicide in 2017. He regularly raped Jane Doe 1, now 15, when she was as young as six years old and posted videos to the internet, which eventually led to his demise.

In 2021, three of Adams’ children sued the church, formally known as the Church of Jesus Christ of Latter-day Saints, claiming that clergy members knew of the extent of the abuse for years but never reported it for fear of tainting the church’s reputation. Roped in as defendants are John Herrod; his wife, Sherrie Farnsworth Herrod; and their company, Lezner Medical Services, through which John Herrod served as the Adams family physician.

Herrod said in a declaration to the court that Adams disclosed his regular sexual abuse of Jane Doe 1 in a formal confession sometime between 2010 and 2011. Because of the religious context of the disclosure, Herrod was advised by church leaders in Salt Lake City not to report the abuse to legal authorities. Instead, he invited Adams and his wife, Leizza Adams, back to his office the next day, demanded that Adams tell her what he was doing and insisted that she report him to the police.

Adams confessed — but his wife did nothing about it — and later pleaded guilty to two counts of child abuse. 

John Trebon, representing the plaintiffs, told a three-judge panel Tuesday afternoon that Herrod waived his clergy privilege the moment he discussed the confession with Leizza Adams.

“There’s no expectation of privacy,” Trebon said. “The privilege is waived the first day after the confession. If there’s no privilege, there is automatically a duty to report.”

Leizza Adams said in her deposition that she never took that conversation to be confidential, and Herrod declined to discuss it further in his. Trebon argued that Paul Adams couldn't have assumed the conversation to be private given that he willingly shared details of the abuse with his wife, whom Herrod directed to notify the police of the situation. 

“The evidence is overwhelming that the conversation was never intended to remain in secrecy,” Trebon said.

He added that posting videos of the sexual acts online serves as an “implicit waiver” of confidentiality.

Representing Herrod and his medical practice, Joseph Roth pushed back on the panel’s draft decision, which sides with the plaintiffs.

“We cannot let tragic facts make bad law,” Roth told the panel. “This draft decision makes bad law.”

Rather than eliminate the confidentiality of the confession, Roth argued, Herrod telling Leizza Adams to report her husband only underscores it, highlighting the fact that Herrod was spiritually preempted from doing so.

The question isn’t whether a right was waived, he said, but simply whether the information was taken as confidential by the clergy member.

Though the discovery phase closed more than a year ago, the plaintiffs want to add to the record new depositions from their plaintiffs about their relationship with Herrod as a physician. Trial Judge Timothy ****erson called the request “an egregious example of a late disclosure.”

Roth agreed, saying Tuesday that to allow the depositions now would prejudice the case and potentially “ambush” the defendants at trial.

“That cannot be what our rules stand for,” he said.

The plaintiffs were only 11 years old, seven years old and six months old when the complaint was filed.

“These are kids,” Trebon said. “They get old enough to recall and articulate, and now, my gosh, they can’t testify? They can’t say these things? Discovery is closed?”

Trebon added that he offered depositions to the defendants during discovery, and the defendants turned them down.

State Judges Christopher O'Neill, Lacey Stover Guard and Sean Brearcliffe made up the panel. It’s unclear when they will rule.

Pretty confusing, this.  What is a "draft decision"?

Thanks,

-Smac

[Calm]

2 hours ago, smac97 said:

Smac quoting:

Leizza Adams said in her deposition that she never took that conversation to be confidential, and Herrod declined to discuss it further in his. Trebon argued that Paul Adams couldn't have assumed the conversation to be private given that he willingly shared details of the abuse with his wife, whom Herrod directed to notify the police of the situation. 

“The evidence is overwhelming that the conversation was never intended to remain in secrecy,” Trebon said.

 

I was wondering why earlier it was described as Herrod insisting the mother report Adams to the police.  It helps suggest he wasn’t seeing the conversation as confidential.

But if that was Herrod’s view, then why not just report it himself?

If, otoh, he didn’t see himself as having the right to report it and that is why he attempted to get the mother to report it, that shows, imo, a view to the interview being seen as confidential by the bishop.

And isn’t there spousal privilege?  Does a confession in the presence of another person negate that privilege?  Seems like it wouldn’t for either a lawyer or a psychiatrist or doctor.  Just because my daughter has given her permission for the doctor to share her medical info with me doesn’t mean the doctor can share the info with anyone they want, after all.

Or am I missing something here?  Added:  apparently no spousal privilege in Arizona for child abuse as the plaintiffs’ lawyer was saying the mom was a mandatory reporter.

Plus I would like to see where Herrod said he “insisted” vs encouraged.

Quote

was spiritually preempted

Did the lawyer actually use this phrasing or is this a paraphrase, I wonder?

Quote

They get old enough to recall and articulate, and now, my gosh, they can’t testify? They can’t say these things? Discovery is closed?

A five year old is going to be able to accurately recall events that took place when she was six months?

If they couldn’t articulate well enough before to testify about the abuse back then to lawyers, how could they articulate well enough to tell the bishop about the abuse?

And of course no one has talked to them about what happened to them in the last four years so memories are untainted.  

I do think kids need to be listened to, but is there any evidence that kids can consistently recall what happened to them at 6 months and younger?  The 7 and 11 year old make much more sense, but I wonder how one separates the original impressions from later rewrites.  Wouldn’t trust adults very much under those circumstances giving accurate info on 5 year old or more conversations they had based on how I have seen memories work.

But perhaps they are not talking about conversations but something else?  All I can think of that might be relevant would be physical signs of abuse that should have alerted adults around them and I don’t see how a 7 or 11 year old would be lacking in language about bruising, etc.

Edited February 26 by Calm

[Calm]

31 minutes ago, smac97 said:

What is a "draft decision"?

Pre-Preliminary decision?

[Calm]

Quote

“There’s no expectation of privacy,” Trebon said. “The privilege is waived the first day after the confession. If there’s no privilege, there is automatically a duty to report.”

Leizza Adams said in her deposition that she never took that conversation to be confidential, and Herrod declined to discuss it further in his. Trebon argued that Paul Adams couldn't have assumed the conversation to be private given that he willingly shared details of the abuse with his wife, whom Herrod directed to notify the police of the situation. 

“The evidence is overwhelming that the conversation was never intended to remain in secrecy,” Trebon said.

He added that posting videos of the sexual acts online serves as an “implicit waiver” of confidentiality.

This last hardly makes sense if part of the argument the bishop should have reported him since the bishop was not aware of the online videos as far as we can tell and therefore that would have no influence on his perception of confidentiality back then.  If it’s about sharing his memories of the confession in court now, then it makes more sense, but sloppy writing if so because it appears connected to the argument the confession wasn’t confidential as soon as the wife heard it.

Edited February 26 by Calm

[Calm]

Right at the beginning of the oral arguments, the judge acting as voice or whatever you would call her says the draft decision was prepared by only one judge, they have not been in conference over the case if I understood correctly (the quality is lacking).

[Calm]

3 hours ago, webbles said:

One judge pointed out that this second waiver would only open up discovery.

I am listening right now and the lawyer seems to be not providing any separation between waivers that occurred initially that would have affected reporting the crime and waivers that took place after Adams was arrested which would have no impact on the bishop’s awareness 7 years previously.  Added:  the judge points this out and he states there is separation (my phrasing).  The judge imo makes it clear the accountability of the bishop is only dependent on the earlier waivers so later waivers only deal with what can be talked about now/discovery (my paraphrase), but as far as I can tell (poor quality) he continues to push the later waivers as if they have an earlier impact even while saying they don’t.  

The lawyer also says Herrod states “he can’t” report the abuse, that is why the wife “must” report it….which sounds like an expectation of confidentiality being in place for him.

Edited February 26 by Calm

[Calm]

The lawyer for the Church mentions that one of the kids is saying she told the bishop she was scared to home and that was info that was disclosed late.

If I understand correctly, there is also a late claim that pornography and lubricants would have been on view in the house if someone had visited which one of the bishops said he had…and the judge is arguing it’s up to the jury to decide whether it’s a reasonable expectation for the bishop to have seen it or not (rather than relying on his testimony he saw nothing definitive iirc).

The lawyer is arguing without awareness of the confession these late reports are not enough for a reasonable belief (Arizona’s law requires belief, not just suspicion).

I think the lawyer for the Church is much more articulate, better ant responding, and easy to understand.

I do think the plaintiff’s lawyer’s point that CPS gets reports of vague concerning behaviour that they investigate could be valid, but should be demonstrated as a fact. I have no doubt they get such reports, but given the limited budget do they investigate them?

Also the plaintiffs’ lawyer is saying or implying the bishop was aware of the ongoing abuse of all the children from the confession if I heard him as he is claiming it is deliberate ignorance not to make the inference from the porn and the behavior of the kids that abuse was happening.  The bishops never say they were aware of ongoing abuse, just of the one case with the one girl.  And as far as I can tell he is saying the bishop doesn’t have to only act on what he might have learned outside the confession, he just has to limit his reporting to what he learned outside the confession.

I am wondering if that is true.

The plaintiffs’ lawyer’s point basically called the Church reps liars as he says the lawyers didn’t ask for depositions because they don’t want the truth to come out when apparently it’s on record the church lawyers said we decline to depose the kids because we don’t want to further traumatize them.  If I remember what was earlier reported, the kids had little to offer in terms of relevant testimony so it makes sense to me that decent people would prefer not to traumatize them on the off chance there was something not revealed yet that would be relevant that they could dig out of them by interrogation.

This is not how I wanted to spend my evening, but it was interesting.

Edited February 26 by Calm

[webbles]

1 hour ago, smac97 said:

What is a "draft decision"?

Both of the appeal courts mentioned a draft decision.  They described it as a decision written by one of the judges.  It isn't final and can change but it shows the thoughts of one of the judges.  So it is possible it could be the minority position or the majority position or neither in the end.

[helix]

17 hours ago, smac97 said:

An update:

 

I'm confused why confidentiality even matters. The entire point of priest/penitent privilege is that a penitent can go see a priest during a confession and the government can't regulate that priest's legal obligations as a result of the confession.

The Arizona statue: "In a civil action a clergyman or priest shall not, without the consent of the person making a confession, be examined as to any confession made to him in his character as clergyman or priest in the course of discipline enjoined by the church to which he belongs."

That's it. Nothing in that statue refers to obligations of the priest to keep information confidential to all, or that the privilege is removed when another learns of it.  Only that the priest cannot be examined/sued/jailed/forced to report by the government. The priest/penitent privilege should remain intact even if the bishop persuades the penitent to divulge the abuse information to his wife. The priest still says out-of-bounds form the government's perspective according to the text of the statue.

Edited February 26 by helix

[smac97]

3 minutes ago, helix said:

I'm confused why confidentiality even matters.

Broadly, the Clergy-Penitent Privilege is rooted in

A) the Common Law, which recognized the confidential nature of religious confessions (and, implicitly, the societal benefits that may accrue from a wrongdoer having a "safe" person to receive disclosures of misconduct, particularly in the Judeo-Christian tradition of repentance, which would presumably be encouraged by the clergy); and

B) the First Amendment (the Free Exercise and Establishment clauses), which both protects religious freedoms and constrains governmental intrusions into religious behaviors.

AFAICS, every state and the federal government has some evidentiary rule or statutory provision, or both, which involves some sort of permutation of the Privilege.

3 minutes ago, helix said:

The entire point of priest/penitent privilege is that a penitent can go see a priest during a confession and the government can't regulate that priest's legal obligations as a result of the confession.

The situation is pretty complex, and varies by jurisdiction.

3 minutes ago, helix said:

The Arizona statue: "In a civil action a clergyman or priest shall not, without the consent of the person making a confession, be examined as to any confession made to him in his character as clergyman or priest in the course of discipline enjoined by the church to which he belongs."

I'm not sure this is the statute in question.  The more pertinent statute is the one governing mandatory reporters:

Quote

Any person who reasonably believes that a minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect that appears to have been inflicted on the minor by other than accidental means or that is not explained by the available medical history as being accidental in nature or who reasonably believes there has been a denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of an infant who is protected under section 36-2281 shall immediately report or cause reports to be made of this information to a peace officer, to the department of child safety or to a tribal law enforcement or social services agency for any Indian minor who resides on an Indian reservation, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only. 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 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. For the purposes of this subsection, "person" means:
...
2. Any peace officer, child welfare investigator, child safety worker, member of the clergy, priest or Christian Science practitioner.
...
L. In any civil or criminal litigation in which a child's neglect, dependency, physical injury, abuse, child abuse or abandonment is an issue, a member of the clergy, a Christian Science practitioner or a priest shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a member of the clergy, a Christian Science practitioner or a priest in the course of the discipline enjoined by the church to which he belongs.  This subsection does not discharge a member of the clergy, a Christian Science practitioner or a priest from the duty to report pursuant to subsection A of this section.

I can't recall all the factual/legal particulars, but the issue was apparently whether the "penitent" had an expectation of confidentiality.

Also, it may be that the presence of the wife in the perp's meeting with the bishop may have negated the privilege.

3 minutes ago, helix said:

That's it. Nothing in that statue refers to obligations of the priest to keep information confidential to all, or that the privilege is removed when another learns of it. 

Not sure about the latter bit, but I think you are correct on the first part.  A bishop may have the option of reporting a confession of child abuse (but not an obligation).  I'm going from memory here, so I am open to correction.

The Church has strong policies and practices about maintaining confidentiality, but I am not sure these rise to the level of "sacramental confession" doctrine such as we see in the Catholic Church:

Quote

32.4.4

Confidentiality

Bishops, stake presidents, and their counselors have a sacred duty to protect all confidential information shared with them. This information may come in interviews, counseling, and confessions. The same duty of confidentiality applies to all who take part in membership councils. Confidentiality is essential because members may not confess sins or seek guidance if what they share will not be kept confidential. Breaching a confidence betrays members’ trust and causes them to lose confidence in their leaders.

Consistent with their duty of confidentiality, a bishop, stake president, or their counselors may share such information only as follows:

• They need to confer with the member’s stake president, mission president, or bishop about holding a membership council or related matters. The stake president may also confer with his assigned Area Seventy. If needed, the Area Seventy refers the stake president to the Area Presidency. Only the stake president decides if a council should be held or its outcome.
• The person moves to a new ward (or the priesthood leader is released) while membership action or other serious concerns are pending. In these cases, the leader notifies the new bishop or stake president about the concerns or pending action (see 32.14.7). He also informs the leader if the member may pose a threat to others.
• A bishop or stake president learns that a Church member who lives outside the ward or stake may have been involved in a serious sin. In that instance, he confidentially contacts that member’s bishop.
• It is necessary to disclose information during a membership council. All information gathered and shared as part of a membership council is confidential.
• A member chooses to give permission for the leader to share information with specific persons. These may include parents, Church leaders, or others who may provide support. The leader does not share information beyond the permission the member has given.
• It may be necessary to share limited information about the decision of a membership council (see 32.12.2).

In all other situations, the leader should refer to 32.4.5. These cases include when the law may require that a crime, such as child abuse, be reported to government authorities.

To assist leaders in protecting others and complying with the law, the Church provides help from trained professionals. To receive this guidance, leaders promptly call the Church’s abuse help line where it is available (see 32.4.5 and 38.6.2.1). Where it is not available, the stake president contacts the area legal counsel at the area office.

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.

If leaders keep notes or communicate with each other electronically, they safeguard access to this information. They also delete or destroy the information when they no longer need it. They do not unnecessarily share personal information.

Civil authorities might challenge the confidentiality required of a priesthood leader. If this occurs in the United States and Canada, the stake president seeks legal advice from the Church’s Office of General Counsel:

1-800-453-3860, extension 2-6301

1-801-240-6301

Outside the United States and Canada, the stake president contacts the area legal counsel at the area office.

Thanks,

-Smac

[helix]

33 minutes ago, smac97 said:

I can't recall all the factual/legal particulars, but the issue was apparently whether the "penitent" had an expectation of confidentiality.

But that's the core of this latest draft ruling, is it not? That confidentiality has apparently been intertwined into priest/penitent privilege? I quoted a part of the law. You linked to the full law. Nowhere in there can I see that confidentiality to all is a necessary requirement enabling the validity of priest/penitent privilege. And when the abuse is known by others, that somehow confidentiality is gone, and therefore priest/penitent privilege is gone, and now the government can throw a priest in jail for not relaying the confession to the government. That just isn't in the law.

33 minutes ago, smac97 said:

A bishop may have the option of reporting a confession of child abuse (but not an obligation).  I'm going from memory here, so I am open to correction.

Yes. It's not an obligation. The Arizona Supreme Court made that clear once again.

The one area where I've disagreed with the church is this argument that reporting the confession would be illegal. A few of us heard that claim when it was mentioned years ago, looked high and low, and we just couldn't find any backing for it. The priest is under no legal peril for simply having heard a confession, the priest can choose to talk or choose not to talk.

Edited February 26 by helix

[smac97]

1 hour ago, helix said:

But that's the core of this latest draft ruling, is it not? That confidentiality has apparently been intertwined into priest/penitent privilege? I quoted a part of the law. You linked to the full law. Nowhere in there can I see that confidentiality to all is a necessary requirement enabling the validity of priest/penitent privilege.

I'm not sure what you are saying here.  The "privilege" is all about maintaining (as in, not being compelled to disclose) confidential communications.

1 hour ago, helix said:

And when the abuse is known by others, that somehow confidentiality is gone, and therefore priest/penitent privilege is gone, and now the government can throw a priest in jail for not relaying the confession to the government. That just isn't in the law.

A communication is typically not considered "privileged" when a third party is present.  

1 hour ago, helix said:

The one area where I've disagreed with the church is this argument that reporting the confession would be illegal.

Ah.  I'm not up to speed on this.  There would seem to be a substantial a difference between a bishop having immunity from compulsion (to report the confessed misconduct) and illegality (a bishop being prohibited from reporting).  Examining statutory law and case law would both seem to be needed to clarify this issue.

1 hour ago, helix said:

A few of us heard that claim when it was mentioned years ago, looked high and low, and we just couldn't find any backing for it. The priest is under no legal peril for simply having heard a confession, the priest can choose to talk or choose not to talk.

As a matter of secular law, you may well be correct.

Thanks,

-Smac

[helix]

7 hours ago, smac97 said:

I'm not sure what you are saying here.  The "privilege" is all about maintaining (as in, not being compelled to disclose) confidential communications.

Let me try to summarize best I can understand.

• The Arizona Supreme Court said priest/penitent privilege applies. The original lawsuit was finally dead.
• The plaintiffs tried a new legal angle. The bishop was also their doctor. Since he knew of something, and he conducted doctor appointments after, there was a window in there where he should have reported as a doctor. This was argued several different ways.
• In Dec 2023 all of several approaches were shot down, the judge ruled in favor of the defendant, the bishop. The ruling also said priest-penitent privilege still applied.
• The plaintiffs appealed.
• A draft decision was made. Webbles said he think it favors the bishop, but the article said it favored the plantiffs, and on my brief review of the video, the church is opposed to that draft decision. I'm going to side with the article that it sided with the plantiffs. The article byline: "A three-judge panel on Arizona’s court of appeals issued a draft decision siding with the plaintiffs, finding that clergy-pertinent privilege didn’t exempt a Mormon church leader from reporting evidence of child sexual abuse."
• The plaintiff's argument: “There’s no expectation of privacy,” Trebon said. “The privilege is waived the first day after the confession. If there’s no privilege, there is automatically a duty to report.”
• From what I can piece together, the plaintiff logic goes: A) priest-penitent privilege was removed more than once, and the first such instance was when the wife was looped in on the abuse -> B) Since priest-penitent privilege is gone, now the doctor requirement applies -> C) Since he didn't disclose as a doctor everything he learned while as a religious leader after the privilege was removed, the lawsuit can proceed.

This is where I'm stuck. I look at Arizona law, and I see nothing in it that a bishop's privilege disappears once the confidentiality disappears. The only thing I see is that a bishop can't be forced to testify to the government about it and can't be sued over it. Doesn't matter if the bishop brings the confessor, the wife, and himself in a room and pleads with the confessor to confess to his wife. Doesn't matter if the confessor refers to the prior conversation with the bishop when the two had a conversation at a jail. I can't see anything in Arizona law where that makes the privilege automatically disappear and now the bishop is legally liable if he doesn't report.

Let's try a simpler angle. Suppose the confessor explicitly tells the clergy "I release you from the privilege, you may report". Even here the clergy is now not forced to report, the privilege didn't disappear. (This is critically important to a Catholic priest who would automatically excommunicate himself from his religion if he reported.) But the plaintiff seems to be arguing that the moment the confessor does such a thing, the bishop must report because the privilege is gone.

I'm also stuck because this appeal seems to now be retreading the Supreme Court Case where priest-penitent privilege did apply.

I just wish I had access to that draft decision to see what was going on. This is a confusing twist to this messy case.

Edit: I should have re-read the thread. This post describes how the Court of Appeals pointed out priests can be forced to testify if the confessor gives a waiver.  Priest-penitent privilege in Arizona is not an independent two-way street relative to testimony.

 

Edited February 27 by helix
Updated with links to more info

[webbles]

1 hour ago, helix said:

But that's the core of this latest draft ruling, is it not? That confidentiality has apparently been intertwined into priest/penitent privilege? I quoted a part of the law. You linked to the full law. Nowhere in there can I see that confidentiality to all is a necessary requirement enabling the validity of priest/penitent privilege. And when the abuse is known by others, that somehow confidentiality is gone, and therefore priest/penitent privilege is gone, and now the government can throw a priest in jail for not relaying the confession to the government. That just isn't in the law.

The draft ruling appears to protect the penitent/priest communication.  If you listen to the arguments, the plaintiffs are happy about the draft ruling because it will let the trial continue (apparently because of the children's late depositions) but are unhappy because they still can't get access to the confessional.  The lawyer mentioned several times that if the draft ruling was the final ruling, their hands would be tied as they wouldn't be able to get any information.

[helix]

Just now, webbles said:

The draft ruling appears to protect the penitent/priest communication.  If you listen to the arguments, the plaintiffs are happy about the draft ruling because it will let the trial continue (apparently because of the children's late depositions) but are unhappy because they still can't get access to the confessional.  The lawyer mentioned several times that if the draft ruling was the final ruling, their hands would be tied as they wouldn't be able to get any information.

Then what's up with that byline? "A three-judge panel on Arizona’s court of appeals issued a draft decision siding with the plaintiffs, finding that clergy-pertinent privilege didn’t exempt a Mormon church leader from reporting evidence of child sexual abuse.""

[webbles]

47 minutes ago, helix said:

Let me try to summarize best I can understand.

• The Arizona Supreme Court said priest/penitent privilege applies. The original lawsuit was finally dead.
• The plaintiffs tried a new legal angle. The bishop was also their doctor. Since he knew of something, and he conducted doctor appointments after, there was a window in there where he should have reported as a doctor. This was argued several different ways.
• In Dec 2023 all of several approaches were shot down, the judge ruled in favor of the defendant, the bishop. The ruling also said priest-penitent privilege still applied.
• The plaintiffs appealed.
• A draft decision was made. Webbles said he think it favors the bishop, but the article said it favored the plantiffs, and on my brief review of the video, the church is opposed to that draft decision. I'm going to side with the article that it sided with the plantiffs. The article byline: "A three-judge panel on Arizona’s court of appeals issued a draft decision siding with the plaintiffs, finding that clergy-pertinent privilege didn’t exempt a Mormon church leader from reporting evidence of child sexual abuse."
• The plaintiff's argument: “There’s no expectation of privacy,” Trebon said. “The privilege is waived the first day after the confession. If there’s no privilege, there is automatically a duty to report.”
• From what I can piece together, the plaintiff logic goes: A) priest-penitent privilege was removed more than once, and the first such instance was when the wife was looped in on the abuse -> B) Since priest-penitent privilege is gone, now the doctor requirement applies -> C) Since he didn't disclose as a doctor everything he learned while as a religious leader after the privilege was removed, the lawsuit can proceed.

There's actually two appeals happening right now.  In the trial court, there were several defendants; the church, the first bishop as a doctor, and the visiting teacher.  The visiting teacher was the first of the cases dismissed and there has been no appeals for it.

The bishop as a doctor case was given a summary judgement.  You can read it here.  That was appealed and had oral arguments a few weeks ago.  The draft decision there was definitely in favor of the bishop.  The plaintiff's lawyer was not happy.

The case against the church was given another summary judgment.  You can read it at here.  That was also appealed and had oral arguments a yesterday.  The draft decision there was split.  The plaintiffs were happy about how it would allow the trial to continue because something in the children's deposition overturns the summary judgement.  But the plaintiffs were not happy about how the confidential information would still be protected.  They asked the panel of judges to overturn the summary judgement in that regard as well.

54 minutes ago, helix said:

This is where I'm stuck. I look at Arizona law, and I see nothing in it that a bishop's privilege disappears once the confidentiality disappears. The only thing I see is that a bishop can't be forced to testify to the government about it and can't be sued over it. Doesn't matter if the bishop brings the confessor, the wife, and himself in a room and pleads with the confessor to confess to his wife. Doesn't matter if the confessor refers to the prior conversation with the bishop when the two had a conversation at a jail. I can't see anything in Arizona law where that makes the privilege automatically disappear and now the bishop is legally liable if he doesn't report.

I think the big thing the plaintiffs want is to have the privilege broken so they can start to ask questions and get answers.  I believe they think there is more "there" there (see Reynolds disposition about the rumors) and so want to be able to delve deeper.  Even if they can't get anything on the bishop, they might find something else.