A unanimous Arizona Supreme Court ruling clarifies the religious liberty protections available to churches and clergy members under the state’s mandatory child abuse-reporting law.
Drawing heavily from the First Amendment of the US Constitution and several landmark US Supreme Court Decisions, the court made four key pronouncements:
- Arizona courts may not decide whether a clergy member properly applies his or her religious doctrine when he or she determines that making a child abuse report would violate that doctrine;
- Arizona courts must “exercise substantial deference” to how a religious institution defines “confession” and “confidential communication,” two key terms used in a clergy exemption to the state’s mandatory reporting statute;
- Arizona courts are prohibited from inquiring into how a religious institution designates its clergy and handles other ecclesiastical matters; and,
- Important distinctions must be drawn between the state’s clergy-penitent privilege and the exemption available to clergy in certain circumstances under the state’s abuse-reporting law, even though both involve confidential communications.
The ruling is binding on all Arizona courts. It also provides persuasive authority for other states with abuse-reporting laws that include clergy exemptions.
The case also illustrates the ethical dilemma clergy members face: reconciling doctrinal beliefs they hold regarding privileged confessions with doctrinal beliefs about protecting children.
At issue: an exemption
Arizona’s mandatory abuse-reporting law requires any person who reasonably believes a child has suffered physical, sexual, emotional, or sexual abuse or neglect to report it to state authorities. A “person” includes any “member of the clergy, priest, or Christian Science practitioner.”
A failure to report is a misdemeanor, but it can become a felony when it involves a “reportable offense.”
The law also includes a significant exemption that became the central issue in the case before the Arizona Supreme Court. It reads:
A member of the clergy, Christian Science practitioner or priest who has received a confidential communication or a confession in that person’s role . . . may withhold reporting of the communication or confession if [they determine] 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, Christian Science practitioner or priest may otherwise make of the minor. (emphases added)
A man confesses abuse
In 2011, a member of a church of the Church of Jesus Christ of Latter-day Saints privately met with his bishop (“Bishop Jason”). The member (“Peter”) revealed he abused one of his children.
Following church doctrine, Bishop Jason soon scheduled a meeting involving Peter and Peter’s wife (“Lara”), where Peter again disclosed the abuse.
Bishop Jason retired soon after meeting with the couple and informed his replacement (“Bishop Mike”) about Peter. Bishop Mike convened a meeting of the church’s formal disciplinary council, which consists of several members of the church. According to the church’s “general handbook,” both bishops and disciplinary council members must maintain a “solemn duty of confidentiality with interviews and confessionals.”
At the meeting, Peter again disclosed the abuse. Bishop Mike then excommunicated Peter from the church.
The abuse was not reported to Arizona authorities.
Several years later, the US Department of Homeland Security discovered a video of Peter’s abuse online and prosecuted him and Lara. Peter committed suicide while awaiting trial. Lara served two-and-a-half years in prison.
Three children sue
Three of the couple’s children (“the Plaintiffs”) filed a civil lawsuit against the Corporation of the President of The Church of Jesus Christ of Latter-day Saints, the church, and the bishops and their spouses (“the Defendants”).
The Plaintiffs sued for negligence, breach of fiduciary duty, and civil conspiracy, contending the Defendants knew about Peter’s abusive conduct and failed to report it under the state’s mandatory reporter law.
The trial court granted summary judgement in favor of the Defendants, having found the communications between Peter, Lara, the bishops, and disciplinary council members were “confidential communications” or “confessions.”
The trial court especially focused on the reporting law’s exemption, saying the bishops “determined that not reporting the communications was ‘reasonable and necessary within the concepts of the [Church’s] religion.’”
The Plaintiffs appealed, arguing the clergy exemption did not apply. Peter’s communications occurred in front of Lara and disciplinary council members, they said, and like the way a confession in front of a third party potentially waives the state’s clergy-penitent privilege, the communications were not confessional or confidential in nature.
The appeals court reversed in favor of the Plaintiffs, citing the applicability of the clergy-penitent privilege and the potential issues that an actual trial could address.
The Defendants petitioned the Arizona Supreme Court.
Court: the appeals court erred
The Arizona Supreme Court agreed to hear the case, wishing to provide clarity regarding how the reporting statute’s clergy exemption works. It made these conclusions:
- The state’s clergy-penitent privilege did not apply to this case. It is a separate testimonial privilege held by a person who confesses to a clergy member. The person then must either explicitly or implicitly waive it for the clergy member to give testimony in a legal proceeding. But analyzing a potential waiver of the privilege was irrelevant, the Arizona Supreme Court said, because the central issue was the reporting law’s clergy exemption.
- The church’s discipline and counseling processes, including the “solemn duty of confidentiality” required of bishops and disciplinary council members, are documented parts of its doctrine. Those doctrinal beliefs, the Defendants said, made it “reasonable and necessary” to withhold reporting as allowed under the clergy exemption. Consequently, the state supreme court said, any court inquiry would violate the First Amendment because it would involve the court:
- Determining who is a clergy member under church doctrine;
- Determining “a religious institution’s interpretation” of confession and confidential communications “pursuant to its doctrine.”
- Determining how confessions and confidential communications are received by the clergy member in the course of church discipline; and,
- Evaluating a clergy member’s “determination” that it was “reasonable and necessary within the concepts of their religion” to not report “conformed with his own religious doctrine.”
The Arizona Supreme Court vacated the appeals court decision and affirmed the trial court’s summary judgment favoring the Defendants.
The court also cautioned that its decision does not grant religious institutions “general immunity” from laws. Courts can weigh in when there is evidence of “‘fraud’ or ‘collusion’ for the secular purpose of avoiding legal responsibilities,” it said. However, no such evidence existed in this case.
What this means for churches
This significant decision carries seven important takeaways for pastors and church leaders:
- Every state has a mandatory child-abuse reporting law. Every pastor and church leader must be familiar with their state’s version since statutes often name clergy as mandatory reporters. Failing to comply carries civil and criminal penalties in many states. Civil liability is also recognized in several states.
- Many, but not all, of the state mandatory reporter laws include exemptions for clergy. They should be closely read in consultation with legal counsel to understand how they work.
- Clergy exemptions in some states’ mandatory reporter laws will reference—or even draw upon—language used in their respective clergy-penitent privilege laws. It is important pastors understand these are not one in the same and, as this case shows, serve different purposes.
- Pastors may learn of an actual or suspected case of abuse multiple ways that still trigger a reporting requirement, even if one of those ways involved a confidential communication. For instance, the Arizona law notes the exemption can apply under certain circumstances—unless the clergy member makes separate personal observations of a minor signaling actual or suspected abuse. Then the duty to report remains.
- Associating specific church doctrine with issues and processes like discipline and counseling are crucial for demonstrating sincerely held religious beliefs and receiving First Amendment protections designed for them. Courts consistently recognize they are barred from intervening in purely ecclesiastical matters.
- First Amendment protections still have limits. Allegations of fraud or collusion to dodge legal responsibilities can still go before secular courts “because they ask how or why a religious institution’s evidence was procured, rather than what the evidence means under the religious doctrine,” the Arizona Supreme Court said.
- Lastly, pastors must decide how to respond when they receive information of actual or suspected abuse during a privileged communication. They must make certain the communication is, in fact, privileged. They also must determine if they are a mandated reporter in their state and still subject to a reporting requirement even with privileged information in hand. Still, even if a pastor is not a mandatory reporter, or a pastor qualifies for an exemption, attorney and senior editor Richard Hammar advises pastors to report because the damage caused by abuse is too great. In fact, in the Arizona case, the church recognized this need, having later revised its handbook to still require reporting “when necessary to prevent ‘serious injury.’”