Court asked to revisit church ruling

Seattle Times/June 23, 2004
By Janet I. Tu

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."