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What Is the Clergy-Penitent Privilege?
The clergy-penitent privilege is a legal rule, recognized in all 50 states, that protects confidential communications between a person and their religious leader during spiritual counseling. Originally designed to protect the sanctity of religious confession — particularly in the Catholic tradition — the privilege has been extended in many states to cover a wide range of communications between clergy and church members.
How the LDS Church Uses the Privilege
The LDS Church's abuse help line relies heavily on the clergy-penitent privilege in states where it exempts clergy from mandatory reporting. When a bishop calls the help line after learning of abuse, Church attorneys assess whether the information was received in a "penitential" context. In states with broad privilege laws, they advise that the bishop is not required to report — even when the abuse is actively ongoing. Critics argue this is a cynical abuse of a privilege designed for religious protection, not child harm concealment.
The Legislative Landscape
Multiple states have moved to limit clergy privilege exemptions from mandatory reporting. Delaware requires clergy to report all abuse regardless of privilege. Oregon eliminated the privilege exemption for mandatory reporters. Several other states are considering similar legislation following the LDS and Catholic Church abuse scandals. However, in many states — including Utah, Arizona, Idaho, and Nevada, where LDS populations are concentrated — broad clergy exemptions remain in law.
Legal Challenges to the Privilege Defense
Plaintiffs' attorneys in LDS abuse cases have developed several strategies to overcome the privilege defense: arguing that information received outside of formal confession is not privileged, arguing that the Church waived the privilege by using the information for non-religious (legal risk management) purposes, arguing that the privilege cannot protect ongoing criminal conduct, and arguing that the privilege belongs to the penitent, not the institution. These arguments have achieved mixed results across jurisdictions.
Research & evidence
Scientific Evidence
Institutional Betrayal and Clergy Sexual Abuse: Impact on Disclosure, Reporting, and Psychological Outcomes
Smith CP, Freyd JJ, Thomas MR (2023). Journal of Interpersonal Violence
Key findings
- Survivors who experienced institutional betrayal (e.g., Church concealment of abuse, victim-blaming by leaders) had PTSD symptom severity scores 2.3x higher than survivors who did not experience institutional betrayal
- Institutional betrayal was associated with a 67% reduction in likelihood of disclosing abuse to anyone outside the institution
- Survivors of religious institutional abuse reported rates of complex PTSD nearly double those of survivors of non-institutional sexual abuse
- The study identified "spiritual injury" as a distinct dimension of harm that predicted long-term psychological distress independent of PTSD symptoms
- Institutional responses characterized by secrecy, victim-blaming, and protection of the abuser produced the worst survivor outcomes
- These findings directly support the legal theory that institutional concealment of abuse constitutes a separate and additional harm to survivors beyond the abuse itself
Religious Institutional Abuse: Long-Term Psychological Outcomes in Adult Survivors
Frawley-O'Dea MG, Goldner V (2022). Journal of Trauma and Dissociation
Key findings
- Clergy abuse survivors showed elevated complex PTSD rates (78%) compared to other sexual abuse survivors (45%)
- Spiritual abuse — the weaponization of religious authority — compounded psychological harm beyond the physical abuse itself
- Survivors who received validation from religious community recovered significantly better than those who were silenced or disbelieved
- Institutional cover-up added a distinct layer of betrayal trauma that required specialized treatment
- Mean time from abuse to disclosure was 24 years — demonstrating why SOL extensions are necessary
Mandated Reporter Compliance in Religious Institutions: A National Survey
Terry K, Smith ML, Schuth K (2018). Child Abuse & Neglect
Key findings
- 41% of surveyed religious leaders were unaware of their mandatory reporting obligations in their state
- Religious leaders who received abuse reports through "internal channels" were 3x less likely to report to authorities
- Leaders who consulted legal counsel before reporting were less likely to report than those who did not
- The presence of an internal reporting hotline or helpline correlated with decreased external reporting rates
- Authors recommended eliminating clergy-penitent privilege from mandatory reporting exemptions
FAQ
Frequently Asked Questions
Dive deeper
Related Guides
- The LDS Help Line Cover-UpThe LDS Church's internal abuse hotline — staffed by attorneys rather than child protection professionals — has been at the center of allegations that the Church prioritized legal exposure management over protecting children.
- Bishop Interview AbuseFor decades, LDS Church policy allowed — and in some cases required — one-on-one private interviews between male bishops and minor children, often including sexually explicit questions. Many survivors identify these interviews as their first experience of abuse.
- Mission Abuse ClaimsLDS missions place young adults — many under 20 — under the near-total authority of mission presidents in foreign countries, creating conditions where abuse can occur with minimal oversight or accountability.
- Bishop Interviews and Youth: A Documented RiskOne-on-one “worthiness interviews” between adult bishops and minors were standard practice for decades. The church changed the policy on June 20, 2018 — an adjoining-room requirement — and directed sex-offender database screening in May 2025.
- The Deadline Passed — That May Not Be the EndA statute of limitations is a defense against lawsuits — it does not stop an institution from choosing to resolve a claim. LDS abuse claims have been resolved confidentially even where a lawsuit would have been time-barred, particularly where the survivor can clearly identify the person responsible.
- Identifying Your Abuser: What "Definitive Identification" MeansYou do not need a perfect memory — you need identification: a name, or photographs, records, or a detailed description tied to a ward, stake, or mission and a time period. The church’s own centralized records often make decades-old identification feasible.
- LDS Troops and the Boy Scouts Bankruptcy: Two PathsThe church was the BSA’s largest charter organization until exiting Scouting on December 31, 2019. The bankruptcy judge rejected the church’s attempt to buy a release of non-Scouting claims — so survivors of abuse in LDS troops may still pursue the church directly.
- The Helpline: How Abuse Reports Reached Lawyers Instead of PoliceChurch policy routes bishops’ abuse reports to a helpline that refers legally risky cases to Kirton McConkie, the church’s law firm — which asserts privilege over the records. The system is the heart of cover-up claims in current litigation.
- Utah LDS Abuse Claims: What Mitchell v. Roberts Really MeansUtah’s Supreme Court barred reviving lapsed lawsuits (Mitchell v. Roberts, 2020) — so most firms turn Utah survivors away. But deadlines limit lawsuits, not direct resolution, and Utah eliminated the SOL against perpetrators for abuse on or after January 1, 2024.
The full investigation