Associated Press [New York NY]
September 28, 2022
By Jason Dearen and Michael Rezendes
It was a frigid Sunday evening at the Catholic Newman Center in Salt Lake City when the priest warned parishioners who had gathered after Mass that their right to private confessions was in jeopardy.
A new law would break that sacred bond, the priest said, and directed the parishioners to sign a one-page form letter on their way out. “I/We Oppose HB90,” began the letter, stacked next to pre-addressed envelopes. “HB90 is an improper interference of the government into the practice of religion in Utah.”
In the following days of February 2020, Utah’s Catholic diocese, which oversees dozens of churches, says it collected some 9,000 signed letters from parishioners and sent them to state Rep. Angela Romero, a Democrat who had been working on the bill as part of her campaign against child sexual abuse. HB90 targeted Utah’s “clergy-penitent privilege,” a law similar to those in many states that exempts clergy of all denominations from the requirement to report child abuse if they learn about the crime in a confessional setting.
Utah’s Catholic leaders had mobilized against HB90 arguing that it threatened the sacred privacy of confessions. More importantly, it met with disapproval from some members in the powerful Church of Jesus Christ of Latter-day Saints, known as the Mormon church, whose followers comprise the vast majority of the state Legislature. HB90 was dead on arrival.
In 33 states, clergy are exempt from any laws requiring professionals such as teachers, physicians and psychotherapists to report information about alleged child sexual abuse to police or child welfare officials if the church deems the information privileged.
This loophole has resulted in an unknown number of predators being allowed to continue abusing children for years despite having confessed the behavior to religious officials. In many of these cases, the privilege has been invoked to shield religious groups from civil and criminal liability after the abuse became known to civil authorities.
Over the past two decades state lawmakers like Romero have proposed more than 130 bills seeking to create or amend child sex abuse reporting laws, an Associated Press review found. All either targeted the loophole and failed to close it, or amended the mandatory reporting statute without touching the clergy privilege amid intense opposition from religious groups. The AP found that the Roman Catholic Church has used its well-funded lobbying infrastructure and deep influence among lawmakers in some states to protect the privilege, and that influential members of the Mormon church and Jehovah’s Witnesses have also worked in statehouses and courts to preserve it in areas where their membership is high.
In Maryland a successful campaign to defeat a proposal that would have closed the clergy-penitent loophole was led by a Catholic cardinal who would later be defrocked for sexually abusing children and adult seminarians.
In other states, such as California, Missouri and New Mexico, vociferous public and backroom opposition to bills aimed at closing the loophole from the Catholic and Mormon churches successfully derailed legislative reform efforts.
“They believe they’re on a divine mission that justifies keeping the name and the reputation of their institution pristine,” said David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, speaking of several religious groups. “So the leadership has a strong disincentive to involve the authorities, police or child protection people.”
LOOPHOLE PROTECTS CHURCHES FROM SURVIVORS AND PROSECUTORS
Last month, an AP investigation found that a Mormon bishop in Arizona, at the direction of church leaders, failed to report a church member who had confessed that he sexually abused his 5-year-old daughter. The AP found that Rep. Merrill Nelson, a church lawyer and Utah Republican lawmaker, had advised the bishop not to report the abuse to civil authorities because of Arizona’s clergy privilege law, according to documents revealed in a lawsuit. That failure to report allowed the church member, the late Paul Adams, to repeatedly rape his two daughters and allegedly abuse one his four sons for many years.
In response to the case, state Sen. Victoria Steele, a Democrat from Tucson, on three occasions proposed legislation to close the clergy reporting loophole in Arizona. Steele told the AP that key Mormon lawmakers including a former Republican state senator and judiciary committee chairmen thwarted her efforts before her proposals could be presented to the full Legislature.
“It’s difficult for me to tell this story without talking about the Mormons and their power in the Legislature,” Steele said. “What this boils down to is that the church is being given permission to protect the predators and the children be damned. … They are trying with all of their might to make sure this bill does not see the light of day.”
Latter-day Saints and Catholics hold a number of influential positions as leaders and committee chairmen in the Arizona Legislature, including the speaker of the House, and have been known to advance or block legislation in line with the church’s priorities and values.
In one high-profile example, two Republican legislators took a stand in 2019, refusing to vote for a budget until lawmakers passed a measure allowing past victims of child sexual abuse to sue churches or youth groups that turned a blind eye to the abuse. Legislative business ground to a halt for weeks amid fierce opposition from The Church of Jesus Christ of Latter-day Saints, the Roman Catholic Church and insurers along with their allies in the Legislature, which finally approved the measure.
The Adams case is not the only example of the privilege being invoked in cases where a clergy member’s failure to report led to prolonged abuse. In Montana, for example, a woman who was abused by a member of the Jehovah’s Witnesses in the mid-2000s won a $35 million jury verdict against the church for failing to report her abuse. But in 2020 the state Supreme Court reversed the judgment, ruling that church leaders were under no obligation to report, citing the state’s clergy-penitent privilege.
The privilege can also be used to protect religious organizations from criminal liability. In 2013, a former Boise, Idaho, police officer turned himself in for abusing children, something he had reported to 15 members of the Mormon church, none of whom notified authorities. But prosecutors declined to file charges against the church because of Idaho’s clergy-penitent privilege law.
The Mormon church said in a written statement to the AP that a member who confesses child sex abuse “has come seeking an opportunity to reconcile with God and to seek forgiveness for their actions. … That confession is considered sacred, and in most states, is regarded as a protected religious conversation owned by the confessor.”
The U.S. Conference of Catholic Bishops did not immediately return a request for comment about its campaigns against state bills seeking to do away with the clergy-penitent privilege.
But supporters of the clergy privilege say abolishing it will not make children safer. Some go so far as to say that the ability of abusers to report privately to clergy encourages them to confess and often leads to stopping the abuse.
“It’s considered essential to the exercise of religion to have a priest-penitent privilege that will allow people to to approach their clergy for the purpose of unburdening themselves, their mind, their soul … to seek peace and consolation with God as well as with their fellow beings,” Utah state Rep. Nelson told the AP. “Without that assurance of secrecy, troubled people will not confide in their clergy.”
Jean Hill, the government liaison for Utah’s Catholic Diocese who helped organize opposition to Romero’s bill, pointed to a single research paper to argue that laws that target privileged, confessional conversations in the context of child abuse have not increased reporting in those communities.
“When you take away every opportunity for people to get help, they go underground and the abuse continues,” Hill said.
But the authors of the study Hill cited, published in 2014, have cautioned about reaching such conclusions based on their research.
Frank Vandervort, a law professor at the University of Michigan, and his co-author, Vincent Palusci, a pediatrics professor at New York University, told the AP that the study was limited, partly because churches often wouldn’t give them access to data on clergy reporting.
“A single article should not be the basis for making policy decisions,” said Vandervort, lead author of the study. “It may be entirely the case that there’s no connection between the changing of the laws and the number of reports.”
PRIVILEGE NOT ‘CONSTITUTIONALLY REQUIRED’
Efforts to rid state laws of the privilege have been successful in only a handful of states, including North Carolina, Oklahoma, Rhode Island, Texas and West Virginia. Records and interviews with lawmakers in the 33 states that still have the privilege show that intense opposition from powerful religious organizations is more often too much to overcome.
Former California state Sen. Jerry Hill said a bill he introduced in 2019 to require clergy members to report suspicion of child sex abuse or neglect by co-workers was killed after opposition from the Catholic and Mormon churches, as well as other religious groups.
“The opposition of the Catholic Church was instrumental in creating a lot of controversy around the bill and a lot of questions related to religious freedom,” Hill said. The Catholic Church made it clear it would sue if the bill passed, Hill said.
Michael Cassidy, a professor at Catholic-affiliated Boston College Law School and a former state prosecutor, said it’s not clear how a religious freedom case regarding the clergy privilege would turn out.
Some supporters believe the privilege is securely rooted in the First Amendment’s guarantee of freedom of religion. But Cassidy said “there is no firm precedent that says the clergy-penitent privilege is constitutionally required.”
“The Supreme Court has never held that,” Cassidy said.
He’s proposed a middle path: allow clergy to maintain the secrecy of the confessional but carve out an exception for “dangerous persons” including child sex abusers.
Often, legislative efforts to close the clergy loophole run up against lawmakers who are also church members, as well as intimidation from advocacy groups aligned with various religions. It’s a one-two punch that has killed many bills quietly before they are even introduced, and has led to the privilege loophole being deemed by child welfare advocates as a poison pill included in mandatory reporting bills, the AP’s review found.
In Utah, after religious officials publicly opposed her bill seeking to close the loophole, state Rep. Romero, a lifelong Catholic, received ominous voicemails and emails. Fearing for her staff’s safety, she reported some of them to state law enforcement.
“It’s utterly despicable that you think that this is all right,” said one anonymous caller claiming to represent a group called Young Americans for Liberty. “If you care to, return my message. If not, I’m going to call you every day until you do.”
The blowback also got personal: Devout Catholic members of Romero’s own family stopped talking to her. “They thought I was trying to attack the Catholic Church and get rid of confession, one of our sacraments,” Romero said. “That’s how it was presented to them.”
In 2003, as the Catholic clergy sex abuse scandal swept the nation, a bill seeking to rid Maryland of the privilege in child abuse cases evoked a strong rebuke from Cardinal Theodore McCarrick, then the powerful archbishop of the Diocese of Washington, D.C.
“If this bill were to pass, I shall instruct all priests in the Archdiocese of Washington who serve in Maryland to ignore it,” McCarrick wrote in a Catholic Standard column. “On this issue, I will gladly plead civil disobedience and willingly — if not gladly — go to jail.”
The bill withered under McCarrick’s attack and never emerged from committee. Similar legislation proposed in 2004 suffered the same fate. Today, the clergy-penitent privilege in Maryland remains intact, even though McCarrick has been defrocked for sex crimes.
Virginia updated its mandatory reporting law in 2006. While the bill started out with clergy among those listed as reporters with the privilege intact, they would be removed from the final bill. The privilege, oddly, was left in. The state went on in 2019 to add ministers, priests, rabbis and other religious officials to the list of mandatory reporters of child abuse, but again protected the clergy-penitent privilege.
State Del. Karrie Delaney, a Virginia Democrat who sponsored the bill in 2019 that added clergy to the list of mandated reporters, said that including language to close the privilege would have doomed the bill.
“We wanted to pass the bill,” Delaney said. “And we knew that not having that (exemption) in there would have drawn an enormous amount of resistance from particular faith communities that really would have put the bill in jeopardy.”
In heavily Catholic Pennsylvania, 40 bills have included changes in mandatory child sex abuse reporting laws over the past two decades. None of them has challenged the clergy-penitent privilege. That comes as no surprise to child sex abuse survivors and their advocates, who have seen the Catholic Church and its lobbyists spend millions in a battle in Pennsylvania over a proposed two-year legal window for survivors to file lawsuits against their alleged abusers.
In other states, legislators said they didn’t know clergy had a way around reporting abuse. After learning of the loophole from the AP, Vermont state Sen. Richard Sears, a Democrat, said he would introduce a bill in the next legislative session to try to close it. “I wasn’t even aware it existed,” Sears said.
In 2003, amid the uproar over the Catholic Church’s sexual abuse scandals, several states added clergy to their child sex abuse reporting laws, often with the exception for clergy who learn about child sex abuse during spiritual confessions.
That’s what happened in New Mexico.
With the privilege protected, the bill sailed easily through both houses and was even supported by The Archdiocese of Santa Fe, which was embroiled in its own church sexual abuse scandal.
Since then, there have been several bills introduced in the New Mexico Legislature aimed at clarifying language in the reporting law. Only one would have eliminated the clergy-penitent privilege. It died in committee.
“We have repeatedly asked the Legislature to strengthen reporting requirements in schools and religious institutions,” state Attorney General Hector Balderas told the AP. He said unreported child abuse is a major problem “resulting in tremendous amounts of trauma.”
Associated Press writers Kim Chandler in Montgomery, Alabama; Becky Bohrer in Juneau, Alaska; Andrew DeMillo in Little Rock, Arkansas; Sophie Austin in Sacramento, California; Jim Anderson in Denver, Colorado; Randall Chase in Dover, Delaware; Brendan Farrington in Tallahassee, Florida; Sudhin Thanawala in Atlanta; Keith Ridler in Boise, Idaho; John O’Connor in Springfield, Illinois; Dylan Lovan in Louisville, Kentucky; Sara Cline in Baton Rouge, Louisiana; David Sharp in Portland, Maine; Brian Witte in Annapolis, Maryland; Steve LeBlanc in Boston; Joey Cappelletti in Lansing, Michigan; Steve Karnowski in Minneapolis; Summer Ballentine in Jefferson City, Missouri; Amy Hanson in Helena, Montana; Gabe Stern in Carson City, Nevada; Susan Montoya Bryan in Albuquerque, New Mexico; James MacPherson in Bismarck, North Dakota; Andrew Welsh-Huggins in Columbus, Ohio: Andrew Selsky in Salem, Oregon; Mark Scolforo in Harrisburg, Pennsylvania; Sam Metz in Salt Lake City; Wilson Ring in Montpelier, Vermont; Sarah Rankin in Richmond, Virginia; Rachel La Corte in Olympia, Washington; and Todd Richmond in Madison, Wisconsin, contributed to this report.