Confidential Communications

Church Law and Tax 1989-03-01 Recent Developments Confidential Communications Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1989-03-01 Recent Developments

Confidential Communications

Can a church be sued if its minister fails to report a child molester to the civil authorities? That was one of the issues before an Arizona state appeals court in a recent case. Here are the facts. A member of the Church of Jesus Christ of Latter-Day Saints (the church) informed three church officials that he had sexually molested a number of children. The mother of one of the victims sued the church, arguing that its negligence in not reporting the molester to civil authorities and in carelessly counseling with him had contributed to the molestation of her daughter. The molester later confessed to at least 33 acts of child molestation, and freely disclosed to the police the confessions that he had made earlier to the church officials. The mother sought to compel the church officials to testify regarding the confessions as part of her attempt to demonstrate that the officials had been aware of the risks posed by the molester and had been negligent in failing to report him to the authorities. This request was opposed by the church officials, who claimed that the confessions previously made to them were shielded from disclosure in court by the “clergyman-penitent privilege.” The court ruled that under Arizona law the clergyman-penitent privilege “belongs to the communicant, not the recipient of a confidential communication,” and accordingly only the molester could assert it. Further, the court concluded that the molester had “waived” the privilege by his voluntary disclosures to the police. The court rejected the church’s claim that the church officials to whom the confessions were made could independently assert the clergyman-penitent privilege as a means of avoiding the obligation to testify. It observed that the clergyman-penitent privilege was a response “to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one’s self and others can be realized. This urgent need is the penitent’s, not the clergyman’s. And once the penitent has waived the privilege, his penitential need is unserved and the public’s evidentiary need disserved by permitting a clergyman to assert the privilege independently.” The court acknowledged that “complex issues” would be raised if the church officials, like Roman Catholic or Episcopalian clergy, were bound by an absolute obligation of silence “unwaivable by a penitent”. However, it observed that the church officials had failed to demonstrate that they were similarly bound by an absolute obligation of silence, and therefore it refused to rule on this issue. In summary, the church officials were required to testify in court about the confessions that the molester had made to them in the course of counseling. It remains to be seen whether such evidence will demonstrate that the officials were negligent in not promptly reporting the molester to the authorities. The eventual outcome of the case will be reported in a future issue of Church Law & Tax Report. Church of Jesus Christ of Latter-Day Saints v. Superior Court, 764 P.2d 759 (Ariz. App. 1988).

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