By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A lawsuit against the Church of Jesus Christ of Latter-day Saints could become the legal basis for the state Superme Court to consider — and void — a statute that protects members of the clergy from disclosing an adherent’s confession of child molestation.

And that could open the door not only to the victims of a church member in this case to sue its bishops for hiding what they knew but pave the way for a series of actions against other religions that have until now been shielded from being sued for failing to disclose what they knew about incidents involving not only their own faithful but also clergy members.

In a new filing, attorney David Abney says the long-standing law is unconstitutional. He said it gives special privileges to members of a religion that do not exist for others who provide counseling, including psychologists and social workers, who are required to report suspected incidents to police or the Department of Child Safety.

Abney also said the law shields only clergy from religions that have the practice of confession.

In this case, it is the Mormon Church, as it is more commonly known. But the same is true, Abney said, for the Roman Catholic Church, while most other religions have no such personal confession — and, therefore, don’t have the same protection for members of the clergy from having to disclose what was said to them.

And there’s something else.

Abney acknowledged the Arizona Constitution guarantees “the liberty of conscience.” But it also says it “shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state.”

“There is not a shred of evidence that proves that religious liberty guarantees in the states or at the federal level were ever intended to immunize religious organizations or individuals from their actions related to illicit sexual behavior,” he wrote.

And Abney compared it to a decision by the U.S. Supreme Court that found the Mormon religious practice of polygamy unlawful in part because of its harmful effect on innocent children.

“Once again, we have innocent children suffering from another Mormon religious practice,” he wrote.

The move to void the law is going to get a fight from the church. Attorney William Maledon, in earlier legal filings, said the privilege is constitutional.

And, if nothing else, he also has an ultimate fallback position, arguing that even if the court invalidates the privilege, it would not affect this case.

“A court's reconstruction of a statute cannot be applied retroactively to subject a person to liability for past conduct because doing so would deprive the defendant of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime," Maledon said.

The case goes to the Supreme Court after the Court of Appeals late Tuesday refused to consider the issue.

Abney is representing three children, whose father, Paul Adams, a U.S. Border Patrol employee, was a member of the Bisbee ward of the LDS church.

According to court records, Adams was excommunicated from the church following confessions to John Herrod, a bishop of the church, and a church disciplinary council called by Robert “Kim” Mauzy, another bishop, to raping his eldest daughter.

The heart of the case is that no one from the church then reported the confession to anyone outside the church and instead conspired to cover up child sex abuse cases. And that led to not just years of continued abuse of the eldest daughter but allowed Adams to molest her younger sister after she was born.

“As a result, plaintiffs were left in the care of a violent, dangerous pedophile who continually abused them for years,” wrote attorney Lynne Cadigan who filed the initial complaint.

“The failure to prevent or report abuse was part of the policy of the defendants, which was to block public disclosure to avoid scandals, to avoid the disclosure of their tolerance of child sexual molestation and assault, to preserve a false appearance of propriety, and to avoid investigation and action by public authority, including law enforcement,” she wrote. And that, Cadigan said, allowed the abuse of the girls to go on for another seven years.

Even after being excommunicated, Adams posted numerous videos on the internet of himself sexually abusing his children.

He was arrested in 2017, Cadigan said, but not with any help of the church but only after an international investigation tracked him down as the source of a video, found in New Zealand, showing a man raping a girl, an investigation that led back to Adams.

Adams confessed his crimes and was indicted for 26 felonies related to the abuse. He subsequently hanged himself in jail.

Herrod, in a 2018 interview with an investigator with the Department of Homeland Security, acknowledged — without disclosing specifics — he had spoken to Adams as far back as 2012 and told him, “You need to turn yourself in.” But Herrod also said he was told by church officials that because of the clergy-penitent privilege, he “absolutely can do nothing except for encourage him to turn it in.”

The lawsuit filed on behalf of the children, who were taken away from Adams and his wife, seeks damages from the church and from the two bishops for allowing the abuse to continue for as long as seven years.

But that has been complicated by efforts to get the bishops to disclose what they knew, disclosures that could lead to the girls winning their case against the bishops and the church for failing to report the abuse sooner. And all that could hinge on whether the law that allowed them to avoid reporting what they knew is valid.

If the statute is voided, that could pave the way for a full-blown trial where jurors would decide whether the bishops and the church as a whole are liable for the injuries claimed by the girls for failing to report the abuse when they first knew and allowing it to go on for years.

Abney emphasized for the judges the importance of their decision — and not just in this case.

“If Arizona’s courts are unwilling to declare that the Arizona priest-penitent statutes are unconstitutional, shameful secrecy horror stories such as this one will happen over and over,” he wrote.

“Monsters such as Paul Adams will continue to confess to religious functionaries that they are raping and abusing their defenseless children,” Abney continued. “Those religious functionaries can then just go about their business, smug in their religion-based, legislatively created and judicially enforced invulnerability that they cannot be prosecuted — much less be blamed — for failing to report the child rape and abuse to civil authorities.”

Maledon disagreed.

“Far from being unconstitutional, laws that respect clergy confidentiality — and laws that respect religious freedom generally — are ubiquitous and deeply rooted in our constitutional tradition,” he wrote in an earlier brief when the issue was in Cochise County Superior Court. And Maledon said the privilege is no different than that afforded in other cases, like a spouse not having to testify against his or her partner and the protections in attorney-client and doctor-patient issues.

He also argued the state constitutional language on the limits on “liberty of conscience” is far more limited than Abney claims.

“If a person claimed, for example, that the Arizona Constitution protected a right to practice human sacrifice, this provision would surely prohibit such an interpretation,” Maledon wrote.

“It does not provide a basis upon which the constitutionality of a statute can be challenged,” he said. “It has no application here.”

Maledon also said this isn’t a special law just because not all faiths practice confession. Consider, he said, another Arizona law that says that doctors who object to abortion on religious grounds are not required to facilitate or participate in procedures that will terminate a pregnancy.

“This is not an impermissible special or exclusive privilege simply because some doctors belong to religious traditions that do not object to abortion,” Maledon said.

And he rejected the idea that the privilege is designed to conceal or facilitate child abuse.

Consider, he said, the attorney-client privilege. Maledon said that exists “so that clients do not have to conceal facts from their attorneys, no matter how damning the facts may be.”

“The same is true of the clergy-penitent privilege,” he said. “In this case, Paul Adams would not have confessed if his bishop was required to report his confession to police authority.”