Children in Arizona are safer in churches that believe a child’s right of safety outweighs the secrets of their rapists, according to an attorney who filed a motion Monday seeking to overturn three state laws that allow certain clergy to avoid disclosing their knowledge of ongoing child abuse.
It will now be up to Arizona Attorney General Kris Mayes, State Senate President Warren Petersen, and State House Speaker Ben Toma to decide whether to defend the statutes which the Church of Jesus Christ of Latter-day Saints has relied on for years to justify why police were not told that church member Paul Douglas Adams was sexually abusing one of his daughters.
Two lay bishops of the LDS Church’s Bisbee Ward knew of the abuse, one as far back as 2010. Church officials excommunicated Adams in 2013, but the abuse – which went on to involve the rape of an infant in 2015– did not end until an Interpol investigation led to Adams’ arrest in 2017.
One of the laws targeted in Monday’s filing of a notice of claim challenging constitutionality is Arizona Revised Statute 13-3620(A), known as the Mandatory Reporter Law. It requires medical professionals, mental health providers, peace officers, clergy, school personnel, parents, and any other person “who has responsibility for the care or treatment of the minor” to notify law enforcement about the possible neglect, injury, abuse, or abandonment of a child.
But the statute contains a major exception – a clergy confessional or priest penitent privilege, which exempts some clergy from mandatory reporting of ongoing child abuse if the information is obtained from a member via confessional counseling.
“So why should a few confessional Christian religions be exempt from the duty to protect children from rape?” attorney Lynne Cadigan asked during a phone interview Monday. “If this was a Jewish rabbi who was told of child rape by a member of his synagogue he would have to report it, so why not a Mormon?”
The LDS Church, commonly known as the Mormon Church, allows lay bishops to provide confidential, confessional style counseling to its members. The Church has pointed to ARS 13-3620(A) and two other Arizona laws to block bishops from
disclosing abuse revealed during such counseling, even though there would have been no exemption if Adams had admitted his ongoing abuse to a non-religious counselor.
The constitutional challenge has been filed as part of a lawsuit initiated in 2020 by three of Adams’ children against the LDS Church and various church members. Cadigan, who is representing the Adams children along with co-counsel David Abney and Taylor Boren, noted the filing includes a 20-page summary of the mandatory reporting laws in nearly two dozen states and U.S. territories.
This demonstrates, she says, the growing national movement to claw back religion-based exemptions that protect criminals at the expense of children.
“If only a few religions can have this special privilege to conceal and hide sex abuse of children then it violates the Constitution of the United States and the Arizona Constitution,” Cadigan noted.
The motion filed May 8 also targets ARS 13-3620(L), which allows a member of the clergy to refuse to be questioned as a witness in a criminal or civil litigation about any confession made to him or her as a member of the clergy.
A third statute, ARS 12-2233 is also being challenged. It grants similar protection to clergy from being examined in a civil action about information revealed by a church member “in the course of discipline enjoined by the church to which he belongs.”
The LDS Church has cited ARS 12-2233 to prevent the children’s attorneys from asking several church members under oath about what was said during a disciplinary meeting prior to Adams’ excommunication. The statute’s clergy protection can be waived by the penitent, but it does not help the Adams children, as their father killed himself in December 2017 while in federal pretrial detention.
The Arizona Supreme Court issued an opinion last month involving a very narrow legal question of whether Adams had waived his confessional rights under ARS 12-2233 by admitting his crimes to investigators. The justices ruled unanimously that he had not.
State law grants Mayes, Petersen, and Toma discretion on whether to intervene as a party in the constitutional challenge. In the meantime, attorneys for the Adams’ children will join several attorneys representing the LDS Church, the bishops, and
other church members in the Cochise County courtroom of Judge Timothy Dickerson on May 11 for a scheduling conference.
Among the issues to be discussed at the hearing are several outstanding motions. Rulings on some of those motions are months overdue in part because there have been three changes of judges in the last year. The case also slowed down while the Supreme Court addressed the waiver question.
Cadigan is aware that efforts by some state lawmakers in recent years to end the priest penitent exemption have failed. She also acknowledges the legal challenge against the statutory protection enjoyed by certain religions faces an uphill battle.
Part of the problem, Cadigan contends, is that the Mormon Church “controls many courts and the politics here in Arizona.” It is one reason she believes having the lawsuit heard in Cochise County presents a good opportunity for the challenge.
“Cochise County courts are not under the same political pressure we’ve seen in Maricopa County,” she explained. “In addition, Cochise County judges have a history of judicial independence in doing what the Court believes is right.”
Attorneys for the LDS Church defendants declined to comment on the new motion until they have time to review it. They have 30 days to file a formal response with Dickerson.
A ruling declaring any of the three statutes unconstitutional cannot be applied retroactively.