BY STEPHEN HUNT
SALT LAKE TRIBUNE
The Utah Supreme
Court on Friday banned lawsuits over allegations
of clergy malpractice, a landmark ruling that grants broad protections to
church leaders when they counsel members of their flocks.
Citing First Amendment safeguards against government intrusion into
the practice of religion, the high court unanimously upheld a trial judge's
decision to dismiss a child rape victim's lawsuit against The Church of
Jesus Christ of Latter-day Saints.
The alleged victim, Lynette Franco, claimed her LDS bishop and stake
president were negligent by mishand- ling her plea for help after she
claimed to have been sexually abused by a teen-age church member.
But the high court shied away from defining a standard of care for
That, wrote Justice Leonard Russon, would "embroil the courts in
establishing the training, skill and standards applicable for members of the
clergy in this state in a diversity of religions professing widely varying beliefs.
"This is as impossible as it is unconstitutional."
In a concurring opinion, Justice Michael Wilkins wrote: "The courts
would be put in a position of overseeing, assessing and passing judgment
on a core activity of churches -- the provision of ecclesiastical counseling."
LDS Church spokesman Dale Bills said in a news release the church
was satisfied with the ruling.
"The decision preserves religious liberty and freedom for all and
confirms that lawsuits like these have no merit," Bills said. "We regret that
Lynette Earl Franco and her family are unhappy with the Church and
hope that they can find peace."
Franco's attorney, Ed Montgomery, said the ruling by the five justices
-- all of whom are Mormon -- means the LDS Church is "completely
immune from anything they do behind closed doors.
"It's chilling, is what it is," Montgomery said. "You have the most
powerful organization in this state doing what it will, without any
government regulation at all, and without any redress being available."
Montgomery said his clients are considering an appeal to the U.S.
Salt Lake City attorney Brian Barnard, whose attempt to sue for
clergy malpractice in an unrelated case was rejected by the Utah Court of
Appeals in 1990, said the ruling has dramatic implications in a state
dominated by the LDS Church and its lay clergy.
"There are an awful lot of people put into ecclesiastical leadership
positions in Utah who rely on divine guidance, as opposed to training and
expertise in providing . . . counseling for people," Barnard said.
The events at the heart of the Franco case allegedly occurred in 1986,
when the girl was 7 years old. Franco claims she was sexually assaulted
by Jason Strong, a 14-year-old neighbor boy and fellow LDS ward
member. The abuse was "so extreme" that Franco repressed the memory
for eight years, the justices wrote.
By the time Franco reported the abuse, Strong was preparing to serve
a church mission.
Montgomery claims church leaders decided to defend the young male
member of the priesthood at the girl's expense. "They used my client to
help them protect the very person who molested her," Montgomery said.
Franco claims her bishop, Dennis Casaday, and stake president David
Christensen counseled her to "forgive, forget and seek atonement."
Later, the two clergymen referred the girl to a purportedly qualified
counselor at a Bountiful mental health center, who, it turned out, was not
licensed to practice in Utah. The counselor, Paul Browning, also advised
the girl to forgive her attacker and forget the incident, rather than inform
police, the girl claims.
Franco's parents finally took the girl to another counselor, who
reported the sexual abuse to police. Investigators, however, said too
much time had passed to pursue charges.
Instead, Franco sued the LDS Church, Casaday, Christensen and
Strong's parents, as well as Browning and his employer, Bountiful Health
Center. After 3rd District Judge J. Dennis Frederick dismissed all claims,
Franco appealed only regarding the LDS Church defendants.
Despite $70,000 worth of counseling, Montgomery said Franco, now
in her early 20s, may never completely recover from being sexually
"But she's worked very hard and she's well adjusted," he said. "Going
through this process and bringing awareness, standing up for herself and
doing what's right, has been good for her."
In the years since Franco allegedly was abused, Utah enacted a law
that requires anyone with knowledge of child abuse, child sexual abuse,
neglect, fetal alcohol syndrome or fetal drug dependance to report it to
police or child-welfare authorities. The clergy are not exempt from
reporting unless the sole source of their information is the perpetrator.
It is unclear how Friday's ruling may affect the mandatory reporting
Tribune correspondent Elizabeth Neff contributed to this report.