Two Things the Church Can Do Now to Improve Its Response to Child Abuse

My cobloggers have offered excellent commentary about the disturbing news about child abuse coming out of Arizona. Everything from suggestions about how we could better help abuse survivors to systemic changes we can make to reduce the incidence of abuse to discussions of confidential confession itself to how the church could have better drafted its first press release.

All of these discussions are crucial as we attempt to protect our children and limit (or better, eliminate!) abuse. But the church’s most recent press release[fn1] crystalized something in my mind, and suggested two things that the church could do in the short term, as we work toward a long-term without abuse.

It its press release, the church writes that church leaders have three responsibilities when it comes to abused children:

  1. Assure that child sexual abuse is stopped.
  2. Help victims receive care, including from professional counselors.
  3. Comply with whatever reporting is required by law.

The first two points are great; they center the well-being of survivors.

The third, though, stuck out to me: the church’s default is to not report unless and to the extent the law requires. So in Arizona, where the law allows, but does not require, clergy to report, its default is to not report.

It’s important to note that this doesn’t mean that bishops will never report abuse in Arizona. I would be shocked to discover that no bishop had ever. What it does mean, though, is that, in the first instance, whomever decides (presumably the attorney answering the hotline phone) will assume that the appropriate response is not to report. They will only recommend reporting in an exceptional case (because, again, the baseline assumption is not to report).

The church needs to immediately change this baseline assumption. Rather than saying that bishops will comply with whatever reporting is required by law, the church should instruct the hotline that bishops should report unless there is a compelling reason not to.

I assume that this change in framing would not mean bishops always reported; there could be exceptional circumstances where reporting would be the wrong move. But where the presumption is that a bishop will report, getting to that exceptional circumstance would require more work.

Abuse victims and survivors should be the church’s primary concern. But it also has a secondary responsibility to those who it has put in the situation of reporting abuse (including bishops, but, depending on the jurisdiction, also maybe RS and EQ and Primary and YM and YW presidencies): in jurisdictions that don’t allow clergy-penitent privilege, do reporters face any civil liability for reporting?

I keep thinking about researching this, only it’s not my area of law, the research is time-consuming, and I have a full-time job plus a family plus hobbies and other things that take my time.

But you know who would have time to look into it? The church’s attorneys. The church could ask Kirton to research the question. And maybe there’s no jurisdiction in which clergy faces civil liability for reporting. That would be important to know!

If clergy does face civil liability, though, the church should indemnify them for legal costs and liability they face.

Those two small changes would have an outsized effect on how we help children who are abused. It would provide a near-term solution to the problems raised by the AP article while we work to create a world that protects children better. And, in the odd case where abuse was not reported, the church would presumably have a better explanation than the unsatisfying, “The law didn’t require it.”


[fn1] Note that I’m not interested in discussing the tone or content of the press release here; I only bring it up because it gives us some insight into the church’s current thinking about mandated reporters and the clergy-penitent privilege.

Comments

  1. Abusers are not super common, but they are spread everywhere- every religion, every civic organization, every extended family. While a common tendency, I don’t understand why the church (and others) considers the existence of abusers as the black eye there don’t want acknowledged. It’s always the cover up, protecting the abusers, that causes the black eye, no matter the motivation (encouraging other confessions, etc.). Much better PR to show that this church actively assists in protecting people from future abuse when it is uncovered, and learns from shortcomings, than to dupe the naive into believing there is no abuse.

  2. I think the entire premise is flawed because it’s much more complicated than “the Church’s baseline position is to not report.” I understand why you would think that, but I don’t think it’s that simple. As I’ve noted elsewhere, privilege and confidentiality are two different things, but privilege still plays a role in whether a bishop should report to police. If the bishop’s testimony is inadmissible at trial, then it’s clearly better for somebody else—who can testify at trial—be the one to make the report. If there is any indication that the privilege does not apply, my sense is that the Church’s attorneys tend to advise reporting.

    There’s also another circumstance in which the Church’s baseline is clearly to report, which is if the bishop believes that abuse is ongoing, the bishop will ultimately be advised to report.

    To answer your research question, most states immunize mandated reporters who make a good faith report from any claims from the alleged perpetrator to the extent that they are following the procedure required by the statute.

  3. I’d also suggest that if it is true that records are destroyed at the end of the day, this practice be stopped. I can’t think of a good reason for such destruction, especially if the goal is to stop abuse and ensure care for the abused.

  4. ” If there is any indication that the privilege does not apply, my sense is that the Church’s attorneys tend to advise reporting.”

    What is this sense based on?

  5. childinct says:

    DSC writes “if the bishops testimony is inadmissable at trial”. Your assumption works only if the goal of reporting is to bring people to trial. But the first goal of reporting is to stop abuse. What calliing an abuse hot line does where I had to call, is start an investigation. In that state, reporting can be done anonymously. The reporter may be called as a witness, but that’s not certain. imo, the victim should always be the first person cared for, not the perpetrator, and not the institution.

  6. “imo, the victim should always be the first person cared for, not the perpetrator, and not the institution.” I agree, but you’re assuming that a bishop reporting is always good for the victim. That may not be the case. If the abuse is not ongoing, then the only purpose of investigation is prosecution. That is a fruitless effort if the only evidence isn’t admissible in court. In the meantime, however, the investigation may open up painful wounds for the victim, which, if unable to convict because the confession isn’t admissible, doesn’t even achieve justice.

    I agree that stopping abuse is paramount. That’s why the help line exists to “Directly report the abuse to authorities, regardless of legal exemptions from reporting requirements, when it is known that a child is in imminent danger.”

  7. Kristine,

    My sense is based on having been directly involved in legal research related to this matter on a project that was a step removed from the helpline.

  8. “but you’re assuming that a bishop reporting is always good for the victim.”

    If an untrained (dentist, carpenter, CEO) is believed to have the skills to decide whether reporting is in the best interest of the victim or not, how come highly-trained experts in abuse (therapists, especially) do not and are mandatory reporters? I won’t disagree that there are situations where reporting (and it going nowhere) hurts the victim. I do disagree that Bishops should be making this determination. The risk to the victim for not-reporting seems much, much higher than the risk for reporting.

  9. Dsc, I agree that there may well be cases where disclosure is inappropriate, which is why I don’t say that bishops should always disclose. But I think shifting the presumption to disclose unless there’s a compelling reason not to disclose is better than presuming nondisclosure in the absence of a compelling reason to disclose.

    And I assume you’re right that most jurisdictions that make clergy mandated reporters relieve them of any liability for good-faith reports, though if I were advising a client rather than blogging I would definitely double-check. I’m more curious about jurisdictions that don’t have an exception to the clergy-penitent privilege for abuse. As I read the plain language of New York’s statute, for instance, the state doesn’t seem to have an exception for child abuse. But, at the same time, courts have found that there’s no civil liability if clergy violates the privilege. That’s another thing that would be worth knowing, and I just don’t have the time to research it in any substantive way.

  10. Thanks, Dsc. The question probably sounded more hostile than I meant to. I’m sincerely curious about what experiences people bring to their thinking about this question–it seems like we’re all having to fill in a lot of big gaps in the reporting, and a lot of misunderstanding happens because we all touch different parts of the proverbial elephant.

  11. DSC, thanks for your insight on this case. I am LDS and a fellow attorney, so this case has really caught my attention and troubled me deeply. You make some cogent arguments here, but I can’t figure out the church’s PR and legal strategy in the Arizona case.

    With regard to PR, the church’s most recent statement claims: “In late 2011, Paul Adams made a limited confession to his bishop about a single past incident of abuse of one child.” The church also claims that, irrespective of the law, the church will “Directly report the abuse to authorities, regardless of legal exemptions from reporting requirements, when it is known that a child is in imminent danger.” In this case, the implication is that the helpline folks thought the children were not in imminent danger—otherwise they would have advised reporting (what the bishop really wanted), irrespective of the law.

    Notwithstanding this conclusion and apparently limited interaction with the accused, the church excommunicated Paul Adams in 2013 (1-2 years later). The leaders also “repeatedly tried to intervene and encourage reporting.” This narrative doesn’t make sense to me. If there was a limited confession about a single past incident of a single child, why press forward with a disciplinary council of an inactive member? Why “repeatedly” try to intervene by urging both parents to report? Why urge the father to move out?

    According to a court transcript of a federal ICE investigator in the mother’s criminal case, the Bishop knew more than the church’s statement lets on and interacted with the father more than the statement indicates. Speaking of the bishop’s meetings with Paul Adams, the investigator testified: “During one these sessions, Paul Adams admitted to [Bishop] Herrod that he had been sexually assaulting his oldest daughter M-1.” According to the testimony, the bishop then called the mother in, and Paul Adams repeated what he had told the bishop. The investigator is then asked whether the bishop had “any further detail about what Paul Adams was doing with M-1?” The investigator responded: “He did. During the counseling session Paul Adams explained to Bishop Herrod that Paul Adams was visually — he was taking video of M-1 [disturbing details deleted]. He said that he had taken video of this, and he’s done it numerous times.” The testimony continues: “The counseling sessions continued with Paul Adams, to which Paul continued to explain that he was sexually assaulting his oldest daughter, M-1.”

    The investigator also apparently testified that Paul Adams was excommunicated “for the sexual molestation of his “oldest and youngest daughter,” which undermines the claim that the bishop and the church only knew of an isolated incident of abuse regarding a single child.

    Providing a PR statement that contradicts sworn testimony of an ICE agent is both curious and troubling. Any insights? I don’t know a ton about this case so I’m asking sincerely.

    As to the legal strategy, your explanation of the distinction between privilege and confidentiality makes sense but not in the case. One owner of the privilege is dead and yet the church is trying to use the privilege to exclude testimony of church leaders in the case against it. Why?

    I will include links to the transcript and the article about trying to use the privilege to exclude testimony in a separate post so this doesn’t get caught in moderation.

  12. Wait, is hearsay admissible in a presentence hearing? Why is an investigator testifying about what a non-party said?

  13. DSC, not sure. It’s outside my area. Perhaps it was non-hearsay since it wasn’t offered for the truth of the matter asserted (i.e. whether the abuse happens as opposed to whether the mother was aware of it). Interested in your thoughts, though, notwithstanding the potential admissibility issues.

  14. My first thought was the hearsay issue, so we’re not sure what the bishop said or did because everything we have is filtered through a third party testifying in a setting that wasn’t examining the things we’re interested in.

    Setting that aside, and assuming things were as the investigator recounted them, then someone screwed up big time. What we still wouldn’t know is what the bishop knew when he called the helpline and what he relayed to the helpline. If the bishop withheld information, he screwed up. If he didn’t, the helpline screwed up.

    As for the other facts you mentioned, I don’t know that the Church’s actions necessarily demonstrate that leaders knew the extent of the abuse. Molesting a kid is worthy of excommunication (or whatever we’re calling it these days) no matter what. Especially if the member refuses to submit himself to civil authorities. And even a single instance of abuse is enough to urge the family to move out, especially if there are other indicators that the situation isn’t safe, which there almost certainly were.

  15. Roger Hansen says:

    It would appear from this non-lawyer, that something is amiss in the Church’s legal and PR establishment. I would suggest a complete independent review of both programs and any contracts associated with them. Particularly the agreements/contracts with KM. Where are Pres. Oaks and Nelson? Oaks is a lawyer and a former Utah Supreme Court justice.

    The Church’s PR dep’t seems oblivious to the basics of public relations. The press releases seem to be drafted by lawyers, not by PR professionals. The leadership needs to prove we are a Church with empathy, and not a heartless corp. Sorry Sam, your suggestion is a bandaid, major surgery is required.

  16. DSC, on the reliability piece, even the cold transcript reflects some pretty specific recollections from a trained child abuse investigator. On the rest, I think I agree with you. My most charitable reading is that perhaps when the bishop called the helpline the person on the other end misunderstood the peril the children faced and gave him bad advice. The bishop misunderstood or didn’t receive the message about reporting in the event of imminent danger and tried to do his best with the advice he received. Maybe then he compounded the misunderstanding by repeating the advice to the subsequent (and less experienced) bishop who never thought to call the helpline again because they had received their answer. I actually don’t fault the bishops here. In the church, we trust what the organization tells us. It’s emphasized repeatedly twice a year. Both bishops probably thought they were bound by the advice they received.

    Roger Hansen, both of the church’s PR statements have hit with a thud for me. They do carefully parse the law and reflect the involvement of attorneys. Worse, for reasons I tried to articulate above, it looks like whoever wrote the statement may have been dishonest or deceptive. The impression I got from the statement is that the bishop, and by extension the church, wasn’t very involved in with the family. That doesn’t appear to be the case (acknowledging DSC’s evidentiary objections). The bishop seemed to sense the urgency of the situation and urged the mom to report. He urged the mom to move. He urged her to do anything. He then excommunicated the man, but only after waiting 12-24 months from the initial report, which suggests ongoing involvement to me. Even if there was only one confession, the investigator testified that the disclosure was of ongoing abuse.

    I also don’t get the legal strategy. My view is that if you can legally report you should legally report. That was the case in Arizona. The bishop was within the law to report. I think this would be better for victims (the judge said as much in the mom’s sentencing) and much better for the church. In discussions online I’ve seen people parade out the case of the church getting sued in Oregon for violating confidentiality expectations, but so what? Do what is right. The guiding force in the legal strategy seems to be to avoid legal entanglements at all costs. And, as I noted above, the church is presently fighting hard to exclude testimony and evidence on the basis of the privilege it shares with a dead, known child abuser of his own daughters. I just don’t get that. It makes it look like they’re hiding something.

  17. You have to admit there is a bit of sad irony here. You are a very competent attorney who is smart enough to carefully hedge your comments about legality, with the qualifier that you “don’t have time to research this issue because I actually have a life.”
    But you have enough time to blog on the issue!! A contribution to the hornet’s nest of non-attorneys who are more than willing to declare their opinion and certainty of (1) the facts of what happened, (2) the counsel given by KM, and (3) the considerations weighed by the non-reporting bishop. There seems to be uncertainty on all three points.

  18. thor, no irony at all. I am a very competent attorney, but I know where my knowledge base lies. I am capable of researching 50 states’ laws with respect to questions of civil liability for disclosing confidential confession information. But I’ve done 50-state research before and it takes time. Given that I don’t blog for a living, but I do have to earn a living, I can’t do a deep dive into the question. Which is why my second recommendation is that the church engage its attorneys to do that very thing.

    In the meantime, though, I can read a press release, and I feel comfortable assuming that the writers of the church’s press releases are capable of communicating what they mean. And what they communicated is that they advise bishops to disclose where required by law. And, as I said, that strikes me as the wrong baseline policy.

    (I’ll also note that, as a general rule, if I had a legal issue, I wouldn’t take legal advice from a blogger, irrespective of his or her competence. But that’s a separate issue.0

  19. senatorgravett says:

    Regarding the fact that inadmissible hearsay shouldn’t be used to initiate investigations. Will all due respect, that’s silly. DA’s, detectives, and especially SVU detectives start investigations all the time based on tips and reports that could never be admitted as evidence (because they’re anonymous, the reporting witness refuses to testify, etc. etc.). The investigative team’s job is to take the bread crumbs that the reporting witness gives them and find enough evidence to build a case.

    Reporting sexual abuse is ALWAYS better for the victim. There is no exception. Where a privilege or religious principle interferes with reporting, it is ALWAYS worse for the victim.

  20. I completely agree with the post, but what do you think about removing calling the helpline altogether? The AP article author noted during an interview of RadioWest that best practice for abuse cases is to report immediately – so involving the helpline before authorities always introduced a delay even when the abuse was reported.

    I agree with all of the commentary that this whole issue appears to be (mis)managed by lawyers instead of the church. It really reinforces the impression that the church is a financial institution first and a ministering institution second. Or possibly a PR firm second and ministering coming in at a distant third.

    For what it is worth, I think the bishops are equally at fault. They should have known better. We should all know better.

  21. Marian, I don’t know that it’s mismanagement by Kirton; if they were instructed to tell bishops to report only where it was required by law, they seem to have followed their client’s instructions.

    As for the hotline: I think there’s value in having something. For most bishops, I suspect that seeing child abuse is a rare occurrence. They absolutely could be trained on how to react. Heck, they could be trained annually. But for most of them, neither the fact of reporting nor the actual manner of reporting will become muscle memory. Talking to someone who says, “Yes, you’re making the correct choice in reporting, and this is how you do it in your jurisdiction” could be immensely helpful, rather than counting on bishops to retain some sort of training and then affirmatively do the Google search to hope to arrive at the manner of reporting in their state.

    That said, the hotline needs some changes. Laura had some excellent suggestions a couple weeks ago for what a truly valuable hotline would look like. And absent her suggestions, I think even changing the baseline assumption, like I recommend here, would do a lot of good.

    That is, it’s not the fact of the hotline that is bad. It’s the default assumptions and the way it’s administered.

  22. As others have said in the comments, the Church’s responses feel like a corporation instead of a church. That part is hard to reconcile with the values I have always been taught at church and elsewhere.

    Thanks Sam for your thoughts.

  23. Thanks Sam. Good point that this process could be church/client driven – I had imagined otherwise but have no reason to assume so. I definitely agree that the default assumption should be changed.

  24. Jared,
    Statistically, there is at least one sexual abuser on you ward rolls. Worse, sexual abusers have around 75 victims before they are caught, assuming they are caught.

  25. Bob Ligma says:

    I thought it was interesting in the youth protection training that while the bishop’s direction is to call the hotline, everyone else who learns about or suspects abuse is told they should call the police first.

  26. David Day says:

    @Jesse, as a fellow LDS attorney (albeit corporate law who knows nothing about litigation) I have largely come to all of the same conclusions you have!

  27. I’ve now had an opportunity to read the transcript of the interview between Bishop Herrod and Robert Edwards, and I now believe that Agent Edwards made serious errors in his testimony, to the point that I have to wonder if he was deliberately misrepresenting what Bishop Herrod told him. Both bishops have consistently maintained that they were aware of only one instance of abuse, and that they saw no other, independent indications that the children were being abused. It’s also a good illustration of why hearsay is bad evidence.

  28. DSC, I’ve done the same with the bishops’ declarations. You are right. They are materially different than Edwards’ testimony.

    I just came across the transcript of the interview and am trying to make my way through it.

    https://mormonr.org/cmsfiles/0/L3VzZXJzJTJGWFFMcFd5bGlDdlMyRzkzUzZUa2IwdkcxMnV4MiUyRnNjYW4tN2UxZGM0ZTEtYWFlZC00NGRjLTgyMTQtNTcxMTliMzk4ZDdhLnBkZj9hbHQ9bWVkaWEmdG9rZW49ZDBmM2E1M2EtY2NhYi00NzU4LWEwYTMtNDkwMDYzNTVkNTEz/de7a1192e78fd57227ddd4d4f1dd84d8da961d63b7afb0b17558fda2fda38322/filename.pdf%3Falt%3Dmedia%26token%3Dd0f3a53a-ccab-4758-a0a3-49006355d513

    It sounds to me like he told Edwards he saw the father more than once.

    “I don’t remember what year it was, but there were — there
    were a couple of times when he came in. And after, you know, talking
    to him and talking with legal counsel, my thing to him was ‘You need
    to go turn yourself in.'” CHC 196

    Later he says “I was counseling with him probably for a year.” CHC 200

    “And she was there for one of them [the counseling sessions?].” Id.

    “And then I talked with him a few times. I can’t
    remember how ti — many times she came in….” CHC 202

    There is, however, no discussion of the father getting excommunicated for abusing both daughters. There is also nothing about filming the abuse “numerous” times–although Bishop Herrod said “videos” but my read is that he learned about the videos after law enforcement became involved. In fairness, I can see how the officer got this wrong.

    What seems clear to me from the transcript, is that Bishop Herrod believed he legally could not go to authorities.

    “Yeah, ‘cause the Church doesn’t — it says you — you do whatever the
    state tells you to do.
    RE: Sure.
    JH: If — they say if you know something and the state says you tell, you
    tell.
    RE: Okay.
    JH: But on the other hand, they say if it’s illegal for you to tell — if he could
    sue you for telling, then you can’t do it.” CH 199

    My .02: Edwards testimony is less accurate than Bishop Herrod’s declaration, which tracks his interview pretty closely.

  29. @David Day, thanks. Based on my comment above, I need to walk back some of my concerns about the church’s statement being misleading. I still think the allegations of misrepresentations against the AP are off base, but I think the church was within it rights to make claims that were counter Edwards’ testimony (assuming his testimony was based solely on the Herrod interview).

  30. Where did the bishop get the idea that he could not go to the authorities?

  31. @Ann, my read of the transcript is that Bishop Herrod was advised by “legal counsel” that he could not report to authorities. Speaking of legal counsel, “they said you absolutely can do nothing except for encourage him to…turn himself in.” I’ve assumed that his came from the church hotline, but I don’t think that assumption is clearly supported by the interview transcript.

    Later he says: “the Church doesn’t — it says you — you do whatever the state tells you to do…. But on the other hand, they say if it’s illegal for you to tell — if he could
    sue you for telling, then you can’t do it.”

    The transcript is available here: https://mormonr.org/cmsfiles/0/L3VzZXJzJTJGWFFMcFd5bGlDdlMyRzkzUzZUa2IwdkcxMnV4MiUyRnNjYW4tN2UxZGM0ZTEtYWFlZC00NGRjLTgyMTQtNTcxMTliMzk4ZDdhLnBkZj9hbHQ9bWVkaWEmdG9rZW49ZDBmM2E1M2EtY2NhYi00NzU4LWEwYTMtNDkwMDYzNTVkNTEz/de7a1192e78fd57227ddd4d4f1dd84d8da961d63b7afb0b17558fda2fda38322/filename.pdf%3Falt%3Dmedia%26token%3Dd0f3a53a-ccab-4758-a0a3-49006355d513

  32. natalie smith says:

    Excuse me? Two things…..How about stay out of the abuse case altogether? Once At the very moment a clergy person hears the words eluding to abuse, the conversation stops, legal is called, and legal state case workers should be contacted. This is how the “real” world works with abuse.
    We’re not dealing with abusers in the attitude in the 20th century; “the good ole’ boys”, anymore. Welcome to the 21st century, studies have proven what’s happened in the past has devastated our society, our youth, our middle-aged. The church’s past reporting system has not worked, we have women who are drug-dependent prostitutes, known perpetrators still abusing victims, suicides, etc.
    A “Bishop”, clergy person, is not trained or educated in reporting abuse, assisting a victim or perpetrator, he is “called as a leader of his faith to guide members in worship”, and that is all.
    Nowhere is the “Bishop’s” existence does his “calling” give him “power or entitlement” to become a “counselor” or “higher power or expert” to become in the complexity of abuse.
    In fact, his emotional ties, lack of boundaries, “family connections”, and “closeness with the brethren”, actually do more harm than good.
    The problems:
    1. Assure the child the abuse will be stopped. FLAWED.
    Under no circumstance can a Bishop assure to anyone abuse will be stopped and it’s often not just children who are abused. It takes an average of 3 calls to authorities before a child is removed from the home. And the 3 calls are from mandated reporters such as a school teacher, medical provider, or ER physician. (A Bishop’s reporting to a physician, DCFS, police authorities will aid in the process).
    2. Help victims receive care from professional providers. FLAWED.
    Many times Bishops want to be involved or control the process of professional providers or choose the “help”. The commitment of “Help” should substantiate “SUPPORT” provide Financial stability to the Victim and Family. Support means letting the victim choose their professional providers, their amount of visits and frequencies, types of visits, and control their own process. The church places no contingency on “Support”.
    3. Comply with whatever reporting is required by law. FLAWED.
    There is no line in the sand here, it is clearly defined in black and white in concrete. The LDS church has legal counsel for this and in my understanding, clergy persons are educated to contact legal counsel, once abuse has been reported to them, immediately. Does anyone know that withholding abuse from authorities is a legal crime for which a clergy person can be prosecuted for?
    Does anyone want to go to jail today? Medical practitioners are held to these standards everyday. I’m not surprised the LDS church has not been sued for this, or have they?
    What it comes back to is asking the question, is this a situation of ________ (insert each word) Accountability, Integrity, Honesty, Respect, Dignity, Good Works, Moral Conduct? Is there something being significantly being taken, harmed, immorally wronged for this person?
    When the questions are answered honestly, then the direction is to contact authorities and do the right thing for the person who is being abused.
    The LDS church has the funds to hire several well educated counselors, social workers, etc. for regions of their church who would be available at a moments notice to in abuse situations. They could come in neutralize a situation, take the church out of the equation, the emotion, and start the process of healing.

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