Facts
- In 1972, Richard Pettit, a member of the Church of Jesus Christ of Latter-Day Saints, told his bishop, Bishop Borland, that a church member, Richard LoHolt, had sexually abused Pettit’s son.
- A Washington child-abuse mandatory-reporting law was in effect at the time of the 1972 disclosure.
- Bishop Borland did not report Pettit’s allegation to law enforcement or child-protection authorities.
- R.K. later alleged that LoHolt sexually abused him when R.K. was a child.
- R.K. sued the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, asserting negligence based in part on the church’s handling of the 1972 information about LoHolt.
- In pretrial proceedings, the corporation moved in limine to exclude evidence of Pettit’s 1972 communication to Bishop Borland, contending it was protected by Washington’s clergy-penitent privilege.
- The corporation also argued that admitting the communication (and using the 1972 reporting duty as part of the negligence theory) would violate the Free Exercise Clause.
- Pettit was the holder of any clergy-penitent privilege connected to his own communication and did not waive that privilege until he testified about the disclosure in a 2005 deposition.
Issues
- Whether Pettit’s 1972 disclosure to Bishop Borland was a privileged clergy-penitent communication under Washington law, such that it should be excluded at trial.
- If the communication was privileged when made, whether Pettit’s later deposition testimony waived the privilege and permitted admission of the communication.
- Whether the Free Exercise Clause required exclusion of the communication or otherwise barred the court from admitting evidence tied to Washington’s then-existing mandatory child-abuse reporting law.
Decision
- The court denied the corporation’s motion in limine to exclude evidence of Pettit’s 1972 communication to Bishop Borland.
- The court concluded the corporation had not shown the communication was protected from admission at trial by Washington’s clergy-penitent privilege on the record presented.
- The court further determined that, to the extent the privilege could apply, it belonged to Pettit and was not a continuing basis for exclusion after Pettit testified about the communication in his 2005 deposition.
- The court rejected the corporation’s argument that the Free Exercise Clause required exclusion of the evidence, reasoning that applying Washington’s reporting requirements and ordinary evidentiary rules in this civil case did not violate the First Amendment.
Legal Principles
- Washington’s clergy-penitent privilege protects certain confidential communications made to clergy acting in a spiritual-adviser role; the proponent of the privilege must show the communication fits within the privilege’s limits.
- The privilege is held by the communicant; an institutional party cannot keep the communication from evidence once the communicant has waived the privilege by voluntarily disclosing the substance of the communication.
- A neutral law of general applicability, including a child-abuse reporting statute, may be applied without violating the Free Exercise Clause even if the law affects religious practice; the First Amendment does not automatically bar admission of relevant evidence simply because the evidence arises from a religious setting.
- A motion in limine seeking categorical exclusion of evidence will be denied where privilege and constitutional theories do not, on the developed record, justify keeping the evidence from the jury.
Conclusion
The Western District of Washington denied the church corporation’s motion in limine and permitted evidence of a 1972 report by a church member to an LDS bishop about prior child sexual abuse, holding that the clergy-penitent privilege did not justify exclusion on these facts (and, in any event, was subject to waiver by the communicant), and that the Free Exercise Clause did not require the communication to be excluded from trial.