Marci Hamilton

How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal – A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Church of Jesus Christ of Latter-Day Saints, Part One in a Two-Part Series

By MARCI A. HAMILTON
Thursday, April 15, 2010

This is the first in a two-part series of columns regarding religious organizations' prohibitions on scandal, and the way in which such rules block investigations of clergy child abuse. Part Two can be found here. – Ed.

Recently, the world's attention has been trained on the Vatican and the Pope, as they try to respond to the outcry from sexual abuse victims and those who want to see them obtain justice in numerous countries – including Austria, Australia, Brazil, Britain, Canada, France, Germany, Ireland, Italy, Mexico, the Netherlands, Poland, and the United States.

As I explained in a recent column for this site, the similarity between the policies that have been applied in each country by Catholic bishops represents either a gigantic, uncanny set of coincidences, or a policy orchestrated from Rome. And anyone without a vested interest in defending the Roman Catholic hierarchy knows which option is by far the more likely.

In a column in The Huffington Post, I recently urged the until-now silent United States government to take action to protect children against these human rights violations. We need to remember that these stories are first and foremost about children being brutally victimized and callously treated. The Vatican, with its history and veneration, has drawn all attention to itself with the force of a black hole. Understandably, the stories of powerful men falling from grace have an irresistibly compelling element, but the real story here lies in the morally transcendent issue of the suffering of child sex abuse victims.

Before the Vatican achieves a 21st Century miracle and succeeds in tamping down this story – and it is capable of doing that if the media, Catholics, and the public permit it to do so –- I would like to bring to the world's attention the fact that this is not the only religious patriarchy that operates this way. To the contrary, children are being, and have been, sexually abused within other large, mainstream religious organizations, yet their stories, too, have been held captive by theological rules of secrecy that parallel the Catholic Church's rule against scandal.

There are actually many such organizations, but I will focus in this column on the Church of Jesus Christ of Latter-Day Saints (which I'll refer to as "LDS" or "the Mormons"), and in my next column, on Orthodox Judaism. I understand that believers hold their religious institutions dear, and such feelings are to be respected, but I see no other way to protect children than to place such beliefs and practices under the public spotlight. This is not about persecution but rather protection of our most vulnerable.

The Church of Jesus Christ of Latter-Day Saints: Beliefs that Foster Silence and Cover-ups Regarding Child Sex Abuse

Let me begin by saying that I am not a member of the LDS Church and that I have drawn the following conclusions based on reported cases, based on interviews of lawyers who represent victims, and by reading LDS materials, including the Doctrine and Covenants and the Doctrine and Covenants Student Manual. If I do get any of the following principles wrong, I welcome correction from LDS leadership.

LDS texts establish beliefs and practices that operate to keep child sex abuse secret, in the same way that the Catholic Church's principles have done so. First, as with the Roman Catholic Church, one of the LDS's central beliefs is in keeping the public image of the Church pure. According to LDS's Doctrine and Covenants Student Manual, "it is our great mission to be a standard to all the world. . ." Achieving that goal, the manual teaches, requires measures that "safeguard the purity, integrity, and good name . . . or moral influence of the Church[.]" When one of the missions of a church is to be a moral example for the world, and to protect its "good name," the incentive to prevent the appearance of tarnishment is powerful, as it has been in both the Catholic and Mormon traditions. This means that the institution will work hard to keep the damning information inside the organization and away from outsiders.

The interests of the child sex abuse victim are persistently demoted beneath the goals of the organization and its leadership. Just as Catholic bishops have been directed for decades, if not centuries, not to cooperate with civil authorities in clergy child sex abuse case (at least until last Sunday, when the Holy See issued a statement that bishops should report cases to the authorities if civil law requires), so too Mormon leaders are discouraged from cooperating with authorities in cases involving abuse. They are not supposed to testify in abuse cases involving their own members (unless the Church itself is implicated), and they must confer with their Office of Legal Services or the Area Presidency before talking to civil authorities. In other words, there must be a pause between learning of the horror of abuse and picking up the phone to involve the authorities. Moreover, they are not supposed to persuade victims to testify (or not to testify) against LDS members.

In addition, while there is no hierarchy, in the sense of a monarchy, within LDS, its leadership is made up of "prophets," who "speak[] for God." Indeed, when they speak, it is as though they are God. (That would include potential Presidential nominee Mitt Romney.) And believers are expected to be completely obedient to the prophets. If they are, it is taught, then blessings will flow. Like the Catholic bishops, then, the LDS leaders have impressive power to persuade believers to put the interests of the organization ahead of the victims.

LDS's Troubling Precepts Relating to the Reporting of Child Sex Abuse

While Mormon doctrine, like Catholic doctrine, includes a general proposition holding that members should obey the law, there is no requirement within Mormon doctrine that reports about abuse must be made to the authorities.

Rather, the LDS system is constructed so that abuse stays internal, victims have no escape route, and perpetrators can have a field day. Church leaders are supposed to be "sensitive" to victims, but the primary focus is on how to handle the perpetrator: Doctrine requires that the perpetrator must be disciplined within the Church, but later may be given full membership status or readmitted.

Like the Catholic Church, the Mormons have followed a pattern of merely urging counseling for perpetrators within their own system. Leaders and bishops are directed to call LDS Social Services, so that counseling will be "in harmony with gospel principles."

The strongest suggestion within LDS doctrine regarding reporting abuse to civil authorities requires urging an abuser to turn him or herself in: If a bishop or stake president learns of a "member's abusive activities," he "should urge the member to report these activities to the appropriate government authorities." But of course, the abuser has every incentive not to make such a report.

There is no requirement within the Catholic Church that child sex abuse must be reported routinely. The Vatican's new rule is simply that bishops should report abuse if the law makes such reporting mandatory; it is not a requirement that abuse be reported in each instance. The same principle holds in the Mormon universe: There is an implicit acquiescence to the reporting of abuse to the authorities by the leadership if the law of the state at issue includes mandatory reporting, but only then, and LDS has worked hard in the states to ensure that this requirement is narrowly interpreted for churches.

When reporting does occur, the leader is required to "encourage the [abusing] member to secure qualified legal advice." The same is not said about a victim.

The Confessional Exception to States' Clergy Abuse Reporting Requirements

In Utah, clergy are required to report abuse unless it is obtained during a "confession." Utah Code Ann. § 62A-4a-403 (2009). The same is true in Arizona, Ariz. Rev. Stat. § 13-3620 (LexisNexis 2009); Oregon, Or. Rev. Stat. § 419B.010 (2007) (incorporating by reference the clergy-penitent privilege at Or. Rev. Stat. § 40.260 (2007)); and California, Cal. Penal Code § 11166(d) (Deering 2009).

Yet the states differ as to how broadly or narrowly they interpret the term "confession" when it appears within these laws. The LDS Church and other religious groups have repeatedly argued that most clergy communications satisfy the "confession" exception to the requirement to report.

That argument succeeded in Utah, Montana, and Washington, but not in California, which has held that "In order for a statement to be privileged, it must satisfy all of the conceptual requirements of a penitential communication: (1) it must be intended to be in confidence; (2) it must be made to a member of the clergy who in the course of his or her religious discipline or practice is authorized or accustomed to hear such communications; and (3) such member of the clergy has a duty under the discipline or tenets of the church, religious denomination or organization to keep such communications secret."

LDS, Like the Catholic Church, Must Change Its System So that Child Sex Abuse Is Reported to Civil Authorities

Thus, the LDS Church has created essentially the same opaque system that the Catholic Church has employed when it comes to child sex abuse. While the polygamy, child brides, and sex abuse endemic to the polygamous sects are not permitted or encouraged by LDS, the structure of the organization, the importance of its self-image as a leader of virtue in the world, and its intent to protect the Church from liability have, together, yielded a cycle of abuse that is not at all unlike that which has been widely documented in the Roman Catholic Church.

So is there serious abuse in the LDS Church? Absolutely. Why don't we know more about it? Because of the Church's internal beliefs, rules, and the acquiescence of its believers – just like in the case of the Roman Catholic Church. In addition, the laws and precedents in Utah have served to cover it up very effectively. If there is one state in the United States that is anathema to lawyers representing child sex abuse victims because the odds of success are so low, it is Utah.

Those on the outside of the Church of Jesus Christ of Latter-Day Saints are in the same position outsiders were in with respect to the Roman Catholic Church and clergy abuse before 2002, when the Boston Globe broke the cover story. I have no doubt that what I am saying will provoke defensive and even angry responses. I also know, having dealt with the Catholic Bishops for as long as I have, that there will be powerful temptations to attack me personally. So be it. But I sincerely hope it will also lead to real reforms that result in sunshine on dangerous practices and a reordering of priorities that will put their own vulnerable children atop the list of priorities.


Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com.

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