A case before the Washington State Court of Appeals raises issues about
how to balance churches' disclosure of information on suspected child abuse
against their free exercise of religion.
Late last week, two victims' attorneys asked the court to reconsider its
ruling defining who is considered ordained clergy in The Church of Jesus Christ
of Latter-day Saints, commonly referred to as the Mormon church.
The court ruled June 1 that records from a Mormon church disciplinary hearing
involving a local convicted child molester would not have to be turned over to
the victims' lawyers because participants in the proceeding were considered
ordained clergy, and the hearing was considered a confessional.
In Washington state, any confidential communication to an ordained clergy
member in the course of a religious confession is privileged.
The dispute stems from a 2002 civil lawsuit in which two sisters accused
their stepfather of sexually abusing them when they were girls. The man, Peter
N. Taylor, was a member of the Mormon church and a high priest in the Federal
Way stake of the church. Taylor pleaded guilty to criminal charges of
first-degree child molestation in 2001 and was sentenced to four years and three
months in jail.
The lawsuit claims the church was negligent when several church officials
repeatedly failed to report the abuse to civil authorities after they learned
about it. The victims' attorneys had sought records from a 1999 church
disciplinary proceeding in which Taylor apparently confessed, and was "disfellowshipped,"
meaning he is still a church member but no longer in good standing and unable to
take the sacrament or participate in church meetings.
The victims' attorneys, Timothy Kosnoff and Michael Pfau, argue some of the
hearing participants were not regularly ordained clergy but were ordained only
for the purposes of the disciplinary proceeding, in accordance with Mormon
church doctrine.
The court's ruling "will greatly expand the scope of the clergy-penitent
privilege and will provide a church with the unconditional means of cloaking any
and all of its actions in secrecy," they say in their motion for
reconsideration.
They contend the ruling will allow individuals to sidestep state law
requiring certain professions to report suspected child abuse to civil
authorities "by simply becoming a 'specially ordained' member of the
clergy." In Washington, clergy are not legally required to report such
suspicions.
Marcus Nash and Thomas Frey, attorneys for the Mormon church in the case,
argued the court did not expand the definition of clergy but was merely
protecting the church's free exercise of religion when it recognized the hearing
as a form of confession for the church, and those at the hearing as ordained
clergy.
"The court didn't expand anything," Frey said. "It simply
recognized a particular religious practice within the LDS church. ... Each
religion has a set of beliefs regarding confessing and making yourself right
with God, and that's protected. What this decision does is it reinforces that
right."
Courts across the country, particularly in the wake of the Catholic Church
sex-abuse scandal, are wrestling with how to balance the free exercise of
religion with what the duty of churches should be in the protection of children,
said Kathleen Flake, assistant professor of American religious history at
Vanderbilt University.
Kim Farah, a spokeswoman with the Mormon church headquarters, said church
officials were "gratified with the decision of the (court) upholding the
church's right to conduct religious disciplinary proceedings without government
involvement. ...
"Even in states such as Washington, where the confidentiality of the
confessional exempts clergy from reporting, ecclesiastical leaders do all they
can to prevent further abuse. Every effort is made to persuade the abuser to
take responsibility for his actions — including going to the legal
authorities."
