DISCLOSURES TO CLERGY DEBATED

Published: Wednesday, Oct. 9 1991 12:00 a.m. MDT

The attorney for a girl who is suing her adoptive father for allegedly sexually and physically abusing her for 10 years told the Utah Supreme Court Tuesday that Utah law only protects statements made to clergy that are confessional in nature.

Ross C. Anderson, representing Michelle Scott, is seeking to gain access to statements made by Scott's adoptive father, Steven LeRoy Hammock, to his LDS bishop. Anderson is also seeking access to conversations LDS clergy had among themselves during subsequent disciplinary proceedings.Scott is suing Hammock in U.S. District Court for allegedly abusing her from the time she was 5 years old until she left home at 15. Hammock pleaded guilty to two counts of forcible sexual abuse of a child in 1983. Scott is seeking $2.5 million in damages.

In December, U.S. Magistrate Ronald Boyce ruled that conversations Hammock had with his bishop are privileged and protected by Utah law. He also ruled that rec-ords of the disciplinary proceedings are protected.

Arguing Tuesday before the Supreme Court at Brigham Young University's J. Reuben Clark Law School, Anderson asked the court to overturn Boyce's ruling. Utah law only protects confessions made to clergy and he said Hammock's statements were not confessional.

"If there is no confession, there is no privilege," Anderson said.Hammock admitted three times in his sworn deposition that the statements he made to his LDS bishop were not confessions, Anderson said. For statements to be confessional, Anderson said they must be made with remorse and sorrow.

"There is not one shred of evidence in the records that Hammock acknowledged any wrongdoing," Anderson said.

Justice Christine Durham said the term confession can be defined in different ways. Some consider statements of fact to be confessional, while others believe a confession must include an acknowledgment of wrongdoing, she said.

Chief Justice Gordon R. Hall said if the conversations between Hammock and his bishop were prompted by religious beliefs, then they possibly could be considered as confessional.

However, Anderson argued that if the court follows those guidelines it will find itself subject to the meaning of confession as defined by each individual religion. For example, he said, the Islamic religion considers all conversations between Islams to be confessional.

Oscar McConkie, general counsel for the LDS Church, said what is deemed to be confessional depends on the religion. If a person is seeking spiritual guidance from a clergy, then the conversation should be considered confessional. If both parties consider the conversation to be confidential, then it should be protected under Utah law, he said.

"The statute demands that you look at the religion," McConkie said. "A confession means different things to different people in different religions."

Justice Michael Zimmerman told McConkie that the church is basically asking the court to find that the law is broader than it reads. If the court rules in favor of Scott, he asked McConkie if he would attempt to have the law changed.

"I have no control over the Legislature," McConkie replied.

Durham said another Utah law that requires clergy to disclose information about criminal activity received from third parties may show that the Legislature did not intend for the clergy-penitent law to be interpreted broadly.

By finding in favor of Scott, McConkie said the court would be jeopardizing the confidentiality of future conversations between clergy and church members.

"This is the center of the Christian doctrine," he said.

By finding in favor of Hammock, Anderson said the court would be depriving future plaintiffs of important evidence and would place the courts in the position of having to determine the genuineness of a religion.

Hall said the court will consider the arguments of both sides and will issue an opinion later. U.S. District Judge David Sam has stayed Scott's case pending the Supreme Court's ruling.

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