Judge mulling whether Duggar confession falls under clergy exclusion

FILE - This undated photo provided by the Washington County (Ark.) Jail shows Joshua Duggar. (Washington County Arkansas Jail via AP, File)

FAYETTEVILLE -- A federal judge declined to rule Monday on whether he will allow testimony during Josh Duggar's child pornography trial that Duggar admitted to sexually assaulting four girls when he was a juvenile.

Duggar, 33, of Springdale is charged in federal court with two counts involving receiving and possessing child pornography. He faces up to 20 years of imprisonment and fines up to $250,000 on each count if convicted.

The issue in Monday's hearing was whether the government can use evidence of Duggar molesting his sisters and another girl when he was a minor. Duggar was never charged in connection with those allegations, but the government contends they are relevant to the current case.

Prosecutors told the judge earlier that Duggar confessed the assaults at the time to his father, former state Rep. Jim Bob Duggar; and a family friend, Bobye Holt, wife of former state Sen. Jim Holt of Springdale.

Bobye Holt testified Monday that Josh Duggar admitted to one of the incidents during a meeting of the families at the Duggar home attended by her, Jim Holt, Jim Bob Duggar and Michelle Duggar, Josh Duggar's mother. That incident of sexual assault came to light earlier this month.

Bobye Holt said Josh Duggar told her in more detail about the incident three years later while he was staying with her family in Little Rock.

Bobye Holt described the meeting at the Duggar home as two families talking about issues involving their children. She said there were no confidentiality ground rules.

Jim Bob Duggar testified Monday the meeting with the Holts was a meeting with elders of his church, who the defense contends are members of the clergy, and was supposed to remain confidential. The defense attorneys contend testimony should not be allowed at trial because of a clergy exclusion. They argue anything said by the Duggars to the Holts, or to other elders at the church they all attended, amounted to seeking religious or spiritual guidance.

U.S. District Judge Timothy L. Brooks asked lawyers for both sides to their arguments in writing by noon today .

The government contends the allegations are admissible because Duggar is charged with a child molestation crime and that makes evidence of his prior child molestation conduct admissible. Prosecutors argue his previous acts show Duggar's propensity to commit such crimes and his motive and intent to commit the crimes to which he has been charged.

The government argues evidence Duggar molested minor girls -- in the approximate age range of the victims depicted in material he is charged with downloading from the internet -- is relevant and highly predictive that he might later knowingly receive and possess child pornography.

They maintain Josh Duggar admitted inappropriately touching minor girls to numerous people over several years, including his parents, the Holts and an Arkansas state trooper.

Brooks asked several questions Monday about what exactly constitutes privileged conversation under clergy exceptions.

"If I call my best friend who's a member of my church, is anything we say privileged?" Brooks asked.

Brooks, noting Jim Bob Duggar's testimony seemed to corroborate Bobye Holt's testimony, also asked whether Jim Bob Duggar could ever have a conversation that is not privileged if he sees every aspect of life in a religious context.

The judge also asked whether clergy exclusion would trump a person's mandatory responsibility to report child sexual abuse.

Defense attorney Justin Gilfand of St. Louis argued the 18 year-old allegation never resulted in charges and has no relevance to the charges Duggar faces now.

Duggar was 12 years old at the time the behavior began, according to testimony Monday.

Duggar, best known for being part of his family's cable television reality show, is accused of using the internet in May 2019 to download and possess the material, some of which depicts the sexual abuse of children younger than 12, according to court documents.

Jury selection is to begin today. If a jury is seated today, the evidentiary portion of the trial will begin Wednesday, Brooks said. If jury selection runs into Wednesday, the sides will begin calling witnesses Thursday.

In the name of religion

In U.S. law, confessional privilege, or clergy exclusion, is a rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and church members. All fifty states, the District of Columbia and the federal government have enacted statutory privileges providing that at least some communications between clergymen and parishioners are privileged. Those laws vary in ways such as who qualifies as a member of the clergy, what communications are covered by the privilege and who holds the privilege.

Source: Staff reports