OPINION: Should Alaska reconsider shielding child abusers who seek religious protection?

A story in Arizona covered extensively by the Associated Press is a forewarning for Alaska.

Paul Adams admitted to his bishop he was raping his 5-year-old daughter. A church lawyer advised the bishop not to alert anyone outside the church. Adams continued to rape this daughter for seven more years. He also began sexually abusing another infant daughter.

Adams was stopped only when videos of the abuse he posted on the internet were discovered. Police arrested him and rescued the victims and their siblings. Adams committed suicide while awaiting trial. The videos remain on the internet, still actively victimizing the children.

Three of the children sued the church, the bishop and church officials for concealing the abuse to avoid “costly lawsuits” and protect the church’s reputation. On Nov. 3, an Arizona court dismissed the case because the state’s mandatory reporting statute does not include clergy, and it has a clergy-penitent privilege against disclosing confidential communications.

This could happen in Alaska. It may have already happened many times, given Alaska’s rate of child mistreatment has been the second highest in the nation, and its sexual assault rate the highest. The Adams case is not an anomaly. It’s a recent example of what’s happened nationwide for decades to thousands of children.

The Alaska Supreme Court grants clergy a privilege to not testify about communications to them as a “spiritual adviser.” The court also recognizes a physician- and psychotherapist-patient privilege against testifying. Despite these privileges, our Legislature has mandated that physicians, psychotherapists, all health care providers and many other professions, employees and volunteers must report suspected child abuse. Clergy are not mandated to report.

Arguments for protecting child abusers’ admissions from mandatory reporting and disclosure in court proceedings include:

• Some clergy argue changing the protection would require them to choose between the law and their faith.

• Others contend that letting abusers admit privately to clergy encourages abusers to confess — and possibly stop the abuse.

• Still others contend that exempting child abuse from the clergy-penitent testimonial privilege violates freedom of religion.

Counter-arguments are:

• The clergy also has a sacred duty to protect children. These religious leaders and believers say the Bible is clear — citing many passages — that the duty to protect children requires reporting confided child abuse. True repentance requires accepting consequences. The church’s duty to the abuser is to offer forgiveness and healing — not protection from consequences.

• There is no evidence that confiding in an authority figure about abuse stops it. If it did, that would be reason to exempt physicians and psychotherapists from mandatory reporting. The Adams case and others show it doesn’t.

• Religious freedom is not without legal limits.

Religious freedom has always had limits. Polygamy has been prohibited in the U.S. since the Mormon Church lost its First Amendment argument before the Supreme Court in 1878. A unanimous Court said,

“(W)hile (laws) cannot interfere with mere religious beliefs and opinions, they may with practices. … To permit (polygamy) would be to make the professed doctrines of religious belief superior to the law of the land; and in effect to permit every citizen to become a law unto himself.”

In 1990, the U.S. Supreme Court upheld firing two counselors who were Native American Church members who used peyote in their religious sacraments. Peyote use was a crime. The court said the government didn’t have to show a “compelling interest” to infringe on religious expression. Otherwise, a claim of religious expression could invalidate many general laws like taxes, health and safety regulations, child labor, animal cruelty, environmental protection and civil rights.

The U.S. Supreme Court has also not hesitated to narrow testimonial privileges. It did so in 1980 by limiting the spousal privilege from both spouses to just the testifying spouse. The court said testimonial privileges should be allowed only to the extent that,

“(E)xcluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”

The court reemphasized that curtailing historical privileges may “be dictated by reason and experience.”

Reason and experience call on Alaska to reconsider the legal protections extended to child abusers who seek religious relief. An attempt by the Legislature in 2003 apparently stalled. Other states have reconsidered.

As of 2019, 31 states listed clergy as mandatory reporters or included them under an “any person” designation. Of these, New Hampshire, North Carolina, Oklahoma, Rhode Island, Texas and West Virginia also deny the clergy-penitent privilege in cases of suspected child abuse.

Even Adams’ lawyers acknowledged, “Reasonable people can debate whether (Arizona’s law) is the best public policy choice.”

The U.S. Commission on International Religious Freedom, established to confront threats to religious freedom, has weighed in on that debate. It holds that, “Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

In 1949, the North Carolina Supreme Court framed the debate as simple. Upholding a city ordinance prohibiting handling poisonous snakes against a freedom of religion claim, a ruling the U.S. Supreme Court declined to review, the court wrote,

“(A)s a matter of law the case comes to a very simple question: Which is superior, the public safety or the defendants’ religious practice? The authorities are at one in holding that the safety of the public comes first.”

Are the safety, rights, and freedom of children from abuse as important as the public’s safety against the dangers of polygamy, Indigenous people’s use of peyote, and the handling of poisonous snakes?

Val Van Brocklin is a former state and federal prosecutor in Alaska who now trains and writes on criminal justice topics nationwide. She lives in Anchorage.

The views expressed here are the writer’s and are not necessarily endorsed by the Anchorage Daily News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)adn.com. Send submissions shorter than 200 words to letters@adn.com or click here to submit via any web browser. Read our full guidelines for letters and commentaries here.