The AP article, at least with respect to the legal portion, appears to be flagrant misinfo. This whole situation is distressing, but I write this up because that article actively damages chances of reform and amounts to little more than a distraction.
The AZ law in question states: “A clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.” A.R.S. § 13-4062(2). The statute even explicitly forbids reporting of sexual abuse admitted in court-ordered/correctional sex offender treatment in A.R.S. § 13-4066, and only makes an exception if, during the course of the treatment, there is a new offense. The statute provides no explicit exceptions for the penitent-clergyman privilege. Now, future or ongoing violent offenses are not covered by these privileges (per judicial interpretation), but that’s why the fact that the article mentions there was no actual knowledge of future or ongoing offenses is legally significant.
Unfortunately, the AP article provides 0 citations for the quotations of law it claims to provide, so I can’t determine why it claims what it does. It just throws phrases in quotation marks out there without explanation or sourcing.
In short, any report made without the permission of the confessor would be illegal. Only the confessor could allow the information to be divulged; the bishop had no discretion and indeed would be under a legal duty to say nothing. This case does not reveal some nefarious pattern in the Church of Jesus Christ of Latter-day Saints’ conduct; it is a pattern in US law. Every single state and federal law grant some degree of clergy-penitent privilege.
The helpline exists because it is entirely unreasonable to expect bishops or anyone besides lawyers to know how to handle these cases, esp. since law can change at any time. There is genuine legal complexity and significant regional variation. Leaving bishops to handle things by intuition, or or based on a rulebook, or whatever, would produce radically worse outcomes.
Even if the bishop illegally reported, courts would be legally required to ignore any evidence produced by the bishop. And, if the police managed to somehow get enough info anyway to establish probable cause (an uncertain proposition already) to issue a warrant to find admissible evidence, warrants typically don’t produce anything because sexual abuse is hard to get evidence for (this is an ongoing crisis, terribly intelligent people are trying to improve that, prosecutors really want to catch sexual abuse, but it’s a very difficult thing to fix and a quagmire well beyond the scope of this discussion). And forcing a criminal trial without adequate evidence would make things worse; it would almost inevitably grant the defendant immunity under double jeopardy.
That is the state of the law. If we want to prevent this kind of thing from happening/hold victimizers accountable, it doesn’t matter how much you speak to Church members or leaders. They cannot do anything; they are obligated to act within the law. The only people who have the power to change this are the AZ and other state legislatures. This is the takeaway. Hold legislators accountable; only they can change the rules we’re required to live by.
(I would support and I think most would support mandatory reporting for sexual abuse cases within the statute of limitations. I mention the statute of limitations as a threshold because, well, it’s useless to report anything beyond it. But I also note that, if the law were changed, most of these confessions would simply not happen and we’d end up in much the same place as we are now.)
(While this is not the most important issue at hand, I must also confess that the article is unprofessional and reeks of bigotry otherwise. For example, the article violates the AP’s own style guide on referring to the Church of Jesus Christ of Latter-day Saints by massively overusing the pejorative/dismissive term “Mormon.” If you are a Latter-day Saint, you know defamation, bigotry, and attacks are common, but in this case, I comment on it mostly because of the serious legal issues in the reporting.)
Addendum: Mandatory Reporting Statutes
A.R.S. § 13-3620, Arizona’s mandatory reporting law, does not abrogate the penitent’s privilege, nor does it confer the privilege, ability to waive, or actual discretion on the clergy member. If a clergy member does not report, it is based on the penitent’s privilege:
“This section [13-3620] does not create a statutory clergyman’s privilege independent of the penitent’s privilege under § 12-2233; rather, they reinstate in child-related litigation a clergyman’s ability to withhold consent on the penitent’s behalf to examination of the clergyman concerning his penitent’s confidential communication.” Church of Jesus Christ of Latter-Day Saints v. Superior Court of the State of Arizona, 159 Ariz. 24 (Ariz. Ct. App. 1988).
In that case, testimony was allowed solely because the penitent waived the privilege by telling police about the contents of his confession. AP alleges no facts that suggest a waiver by the confessor. And even should such facts come to light, what does and does not constitute a waiver is highly fact-dependent, and may rely on information neither the bishop nor the hotline would have possessed at the time.
The second section mentioned in that quote, A.R.S. § 12-2233, is another iteration of the clergy-penitent privilege: “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.”
The court of appeals reinforced the clergy-penitent privilege because, if interpreted as AP suggests, § 13-3620 and § 12-2233 would create contrary legal duties that could not both be observed. Arizona courts have continued to reaffirm this interpretation, the most recent published decision being in 2018.
(And to explain more of the lack of professionalism on AP’s part, I would point to how they brag about obtaining access to this trove of documents, but they do not produce a single quotation or image about their contents. With that much information, if there were a pattern of problematic conduct, one would think they’d be able to report several cases across a Church with millions of members, or at least point to some document or actual policy that is causing the problem. Instead, all they do with all that information is say that, per their reading, again unexplained, the hotline could be used to divert sexual abuse cases from authorities, not that it is used. Here I note that the Church has also been sued for reporting too much in alleged violations of the privilege and that, as a matter of course, even where the privilege applies and a report is not possible, it is universal policy in the Church to push confessors of serious crimes to turn themselves in.)
Addendum 2: Further Details on Court Interpretation, esp. re: Mandatory Reporting, and Operation of Legal Privileges
You may not tell *anyone* privileged information.[1] Not the police, not a judge, not your spouse. Not in court, nor out of court. The clergy-penitent privilege operates very similarly to attorney-client and other privileged relationships.[2] Imagine an attorney telling anyone outside their office about their client’s confessions to them. Imagine if attorneys were allowed to report their clients. The privilege would immediately fail its purpose and the client would not be able to trust their own counsel. If AZ statute doesn’t explicitly spell that out, then it’s derived from common law, the body of law that corresponds to judicial decisions over history. It’s simply how privileges function (that’s why I don’t bother looking it up).
The clergy member has no privilege to not testify: he or she is compelled not to testify by the privilege of the penitent. The penitent is the exclusive possessor of the privilege in AZ law (most states grant the right to the penitent, not the clergy, as well). If the clergy member speaks without permission of the penitent, the penitent has the legal right to force the clergy member’s silence and obtain damages. And, of course, how many accused are not going to enforce such a thing? Even when it is referred to as the clergy member’s right, what it really means is that the clergy member exercises the penitent’s right on their behalf. So no, the clergy member may *not* testify of his or her own volition.
To summarize, the penitent-clergy privilege is a right that the penitent has *against* the clergy member, conditioned on the clergy-member’s respect of the privilege. Not a right of the clergy member.
That was the court’s decision in Church of Jesus Christ of Latter-Day Saints v. Superior Court of the State of Arizona, 159 Ariz. 24 (Ariz. Ct. App. 1988). While the statutory language of § 13-3620, read alone, would seem to confer the right on the clergy member, the courts do not interpret it so, because such an interpretation would be incompatible with prior law that § 13-3620 was not intended to replace (per the court’s own examination of legislative history and statutory text). The published decision goes into a discussion of the whys and wherefores if you so wish.
How it works out is that the clergy member may not divulge the privileged information, unless some waiver occurs by the penitent and the penitent alone. If the penitent waives their privilege, then the clergy member would actually fall under the mandatory reporting statute and be required to report (this is problematic because the clergy member doesn’t necessarily know whether the penitent has waived their privilege, esp. in cases of implied waiver).
[1]Unless one of the specific exceptions apply, like the report concerns future violent harm or, say, you’re an attorney discussing the case with co-counsel or a paralegal (and then, cocounsel or the paralegal would be bound by the privilege).
[2] Arizona court decisions have made attorney-client privilege the strongest of the privileges in Arizona, with penitent-clergy being just a tick below attorney-client. Other privileges,
