Lawyers for molested girls ask AZ Supreme Court to reconsider church immunity

Lynne Cadigan said she and co-counsel John Trebon are not arguing that clerics have to disclose everything they hear in confession. That clearly is protected by Arizona law.

But Cadigan said the justices got it wrong when they concluded that each religion gets to decide not only when its clergy can ignore laws that require everyone else in Arizona to report ongoing child abuse, but also to define for themselves — free from oversight by Arizona courts — what is considered a protected "confidential communication,'' even when multiple people have heard it.

"I don't understand why the Supreme Court ignored the clear intent of the legislation trying to protect children who are voiceless,'' Cadigan told Capitol Media Services.

"The purpose of the statute is to give voice to children who have no way of protecting themselves,'' she said. "Instead, they decided to place their emphasis on protecting the perpetrators' souls and ignore the needs of these abused children.''

Potentially more significant, Cadigan and Trebon are telling the justices that letting their decision stand creates a dangerous precedent, allowing each religion to interpret what and when they have to report and what the law requires.

"The court has essentially established an absolute immunity for religious institutions that fail to report child sexual abuse, insulating them from civil liability and judicial oversight even when an abuser reveals his crimes in the presence of multiple people over a period of years that were never confidential,'' they wrote. They said that "turns legislative public policy on its head.''

The odds are against the lawyers getting the court to reverse its July 30 ruling giving immunity to the Church of Jesus Christ of Latter-day Saints: The case was decided on a 7-0 vote.

But Cadigan and Trebon said they want to point out to the court what they say are mistakes in both fact and law that the justices made in the 23-page ruling, in hopes they will reconsider.

Abuser posted videos 

The case involves Paul Adams, a Bisbee man who confessed to his LDS bishop in 2011 that he was sexually abusing one of his daughters.

That confession was repeated to his wife, Leizza, to another bishop, and eventually to multiple church members as part of an excommunication.

But there was no reporting to authorities. Adams later went on to also sexually molest a second daughter, an infant, and even posted videos online of the abuse.

Those videos eventually led to his arrest, but not until 2017. He died by suicide while awaiting trial.

Cadigan, representing the children, sued the church and the bishops for failing to follow state laws that require reporting of sexual abuse if it is learned outside the context of a confession or confidential communication with a cleric.

The LDS church, however, argued that everything Adams said to everyone fits within what the church considers a confidential communication with a cleric. The justices ruled unanimously that the church — and the church alone — gets to decide what is a confidential communication that can remain secret, no matter what.

No civil court can second-guess that, the high court ruled.

At least 35 people learned of ongoing abuse

In their new filing Wednesday, the attorneys said the justices ignored certain facts.

One was that Bishop John Herrod had Adams confess to his wife, and the bishop told Leizza to report the confession to police "to protect her children.''

"Obviously, Paul Adams could not have considered the meeting to be confidential, neither did Leizza,'' the new filing states.

On top of that, the lawyers said, there were at least 35 people who learned of the ongoing molestation through the church disciplinary proceedings.

Cadigan said that clearly wasn't the kind of "confidential communication'' the law is designed to protect. She said that would be the equivalent of any religion deciding that someone could "scream out your confession to the world'' and that it fits within the religion's definition of confession.

"That's not confidential,'' she said.

Immunized from court scrutiny 

As much as she said she disagrees with it, Cadigan said they are not challenging the authority of the Legislature to exempt clergy from having to disclose what they hear as part of confession.

But in asking the justices to reconsider, she and Trebon want the high court to make some determination of what is a "confidential communication'' and not simply leave it to each religion to decide that question — and, as the court here ruled, have its decisions immunized from court scrutiny.

The lawyers called the court's conclusion "novel and unsupported by legal precedent.''

"Even in states where the clergy hold the privilege, secular courts determine if communications are truly 'confidential,' '' they said.

They said that means if the clergy claims the privilege allowed under Arizona law from having to report what is learned in what the church considers "confession,'' civil courts are required to consider, on a religious-neutral basis, whether it truly fits the exemption from disclosure in the law as a "confidential communication.''

That, they said, has to be done "using the traditional, objective standard focusing on the circumstances of communication,'' not what the church says it is.

"The Church should not decide the parameters of a state statute using its own doctrines to supplant statutory elements,'' they wrote.

To decide otherwise, and to let the decision stand, creates a dangerous precedent, Cadigan and Trebon say.

"If an abuser can reveal his crimes to multiple people over a period of years — as occurred here — yet the institution remains immunized from civil liability based entirely on its own subjective doctrinal determinations, the fundamental right of vulnerable citizens to access the courts for redress is defeated,'' the lawyers told the court.

They also said this isn't a question of civil courts staying out of "essentially religious controversies'' that have no effect on others. Instead, the lawyers told the justices that what they decided allows churches "to displace judicial interpretation of a neutral state statute.''

The filing means the justices now must decide whether to revisit their ruling.