Brenton Erickson and Gerardo Sumano: LDS Church’s response to bombshell article is lacking

Church accepts no responsibility for horrific child abuse known to its local officials.

(Trent Nelson | The Salt Lake Tribune) The Brigham Young statue on Temple Square in Salt Lake City on Friday, May 14, 2021.

A recent bombshell AP article exposed how two Mormon bishops in Bisbee, Arizona, failed to report child sexual abuse after learning about the abuse from the perpetrator’s confession, allowing horrific abuse to continue for seven years. Both the church’s official response and a recent commentary in the Deseret News carefully avoided discussion of the policies and dynamics actually at issue in the Bisbee case.

The official response of The Church of Jesus Christ of Latter-day Saints offered no explanation for the article’s core allegations: namely, the church’s decision, through its law firm, to instruct bishops to not report the abuse to authorities.

To be clear, the church is not scrambling to find an explanation for that decision. The church’s legal team already has a fully-formed explanation. However, its official PR response avoids drawing attention to it because many people, including many Latter-day Saints, would probably find the explanation appalling.

The explanation the church relied on in court can be summarized as follows: If a bishop finds out about child abuse through the perpetrator’s confession, and if the law leaves it up to the bishop to decide between reporting the abuse or protecting the confidentiality of the abuser’s confession, the church prioritizes the confidentiality of the abuser’s confession. Its explanation arguably shows that the church has a tendency to not report child abuse in certain cases unless it absolutely has to.

The church’s official response winked at this explanation by referring to laws that allegedly restrict “what can be shared from private ecclesiastical conversations.” But there were no restrictions in the Bisbee case. According to the AP, Arizona law allows clergy to report child abuse even if they can only report it by divulging what they learned in a confession.

And references to clergy-penitent privilege are usually a distraction. For example, in Utah, the privilege can prevent clergy from testifying in a court proceeding about things said in a confession. But clergy can report the abuse to police without violating that privilege.

We don’t blame LDS PR officials for skating around the actual reasoning behind the church’s actions in the Bisbee case. It’s a tall order to tell millions of incredibly dedicated LDS parents that, in some cases, the safety of their children might not be the church’s top priority when it learns of child abuse.

In another problematic response, a lawyer who used to work on the church’s abuse helpline claimed in a commentary that the helpline is never used to “hide” abuse. That claim is easily misunderstood without the important context of a lawyer’s ethical obligations. For example, people reading the commentary might think the claim means that lawyers who work on the helpline must always report abuse. That is untrue.

Generally, lawyers have an ethical obligation to not divulge information that they obtain as part of confidential communications from their client. In most states, lawyers are not mandatory reporters in situations where they only learn about abuse through confidential client communications. And a lawyer who chooses to violate their ethical obligation of confidentiality could face disciplinary action from their bar association.

A supervisor for the helpline said in an affidavit that the church has always insisted that communications between local leaders and church lawyers are protected by attorney-client privilege. As a result, lawyers working on that helpline cannot simply call the police to report abuse that they just learned about from a bishop’s phone call. Unless they are required by state law to report, or unless they obtain permission to do so from their client (the church), professional rules likely keep them from reporting.

According to the AP, victims fear that the helpline can be misused to “divert abuse accusations away from” police to lawyers “who may bury the problem.” Sending helpline calls to lawyers does create opportunities for hiding or delaying allegations, opportunities that wouldn’t exist if the calls were handled by a lay person. It gives church lawyers a chance to persuade bishops to keep quiet in cases where the bishop is free to report. It creates opportunities to bury or delay allegations with common litigation tactics. And it helps shield the details of those discussions from victims and prosecutors alike.

Brenton Erickson

Brenton Erickson is a licensed attorney working on criminal defense cases in Utah County.

Gerardo Sumano

Gerardo Sumano is a co-host for Mormon Stories, a podcast offering commentary that explores and challenges the culture, doctrine, history and policy of The Church of Jesus Christ of Latter-day Saints.