LDS church should always report sex abuse. Arizona Legislature must make that clear

An Arizona Republic article about a man who sexually abused his daughter (“Bisbee man confesses he’s molesting his daughter …” April 22) is troubling for several reasons, including the Church of Jesus Christ of Latter-day Saints’ failure to report the case to law enforcement.

It’s just as troubling that some, including in our state government, interpret Arizona law as permitting such silence. Our Legislature needs to act to rid that interpretation.

The article told the horrific story of how this man sexually abused his own children, videotaped the abuse and put the unspeakable footage on the internet. When he was abusing his oldest child, before his younger was born, he informed his LDS bishop (a physician), who failed to call the police as did a second bishop who learned of the abuse.

After the second child was born, the man victimized the helpless baby.  He was only caught and brought to justice after Interpol discovered his identity through his internet activity.

A dangerous view of 'clergy privilege'

According to the article, some claim the LDS church was under no obligation to report the ongoing abuse because of a “clergy privilege,” and state Sen. Eddie Farnsworth, R-Gilbert (a member of the LDS church) apparently backs that position.

Senator Farnsworth is wrong. The silence of the bishops caused grave harm to children and assisted ongoing and horrendous crimes.

People should not be able to commit atrocities against children and hide behind religion. Any religious official who learns of ongoing crimes against children or who reasonably believes children are in danger of victimization must be required by law to report such crimes — no exceptions. How is this not obvious?

Child sex abuse should always be reported

The clergyman privilege is contained in A.R.S. 13-4062. It states that a member of the clergy shall not be compelled to testify in court as to any confession made to the clergy in an official capacity. Nothing in this statute prohibits clergy from reporting ongoing crimes.

Another Arizona statute, A.R.S. 13-3620, requires a wide range of persons, including physicians and clergy, to report possible child sexual abuse. However, when it comes to clergy who receive information through confession, they “may withhold reporting of the confession if that clergyman determines that it is reasonable and necessary within the concepts of the religion.”

But it cannot be “reasonable and necessary” in any religion to allow the commission of sexual abuse against children, nor could it be “reasonable and necessary” to endanger children with future abuse by failing to report. Such crimes and possible abuse must always be reported.

Legislature must act to protect kids

The courts must read a “crime-fraud exception” into the statute, and the Arizona Legislature must make that exception explicit through amendments of the above statutes.

The “crime-fraud exception” applies to the attorney-client privilege. It was first articulated by the United States Supreme Court, as follows: “There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.”   

One of the most fundamental roles of government is to protect children. Whatever the merits of the clergy privilege, it cannot extend to allowing child abuse to occur unabated. What happened to the child victims in Bisbee should never happen again.

Peter Akmajian practices personal injury and medical malpractice law with the firm of Schmidt, Sethi & Akmajian in Tucson. Reach him at PAkmajian@azinjurylaw.com.