by DATA-DOG 11 Replies latest watchtower scandals
Hello everyone,
I am no Lawyer so bear with me. If california was not a mandatory reporting state when Candice was abused, then how was the WTBTS found legally guilty? Don't get me wrong, they deserve it. Any moral person would have reported child abuse. It just seems like they could use the fact that at the time of the abuse, they were not " legally " required to report as a loophole. Any lawyers out there? All comments are welcome. I am just curious. Thanks.
I believe "guilty" is not applicable to civil cases. "Liable for damages" is.
If you don't shovel your sidewalk in the winter and someone slips and gets hurt, you could still be sued and held liable even if your city doesn't have a law about shoveling your sidewalk.
The Watchtower Society caused harm because of their neglect and failure to take reasonable precautions. They were held liable depite the fact that they didn't break a specific law.
Their not reporting was only part of it.
They knew this man was a pedophile, and still failed to protect this and other children. They were found guilty of Malice. Deliberate and willful negligence. They deliberately failed to protect the children. That's what they were found guilty of. It was not just failure to report, it was the deliberate actions taken to protect the organization from lawsuit, instead of protecting the welfare of the children. Their actions of sweeping it under the carpet, was in part, the reason she was abused by this man. Their actions, put children at risk. This girl was one of them.
Internal letters were damaging, enough, but they also used WT literature, where they preached about pedophilia. How keeping it quiet leads to putting children at risk, while at the same time, the internal letters are saying to keep it quiet. Showing they knew what they were doing was putting the children at risk.
blond-moment aka Danmera
[ jw.org ]
Right, the issue wasn't failure to report, the issue was failure to protect against future abuse (e.g. the abuse of the plaintiff in this case) after learning of a previous molestation by the same perpetrator.
Third-party defendants have been exposed to liability for their own negligent failure to prevent sexual molestations by employees, volunteers, and family members, where the non-perpetrator defendant possessed actual knowledge of the employee or volunteer's history of sexual abuse and failed to warn or protect children exposed to the abuser.
Thanks everyone. That makes perfect sense. I know there will be someone I talk to, that will try to defend the WT. I want to be able to explain it to them, if I can. :)
I am not admitted in California. Further, I have not read the relevant statutes and cases in CA law. There are several issues that pop out for me. Law is supposed to give notice to those affected by it so they can conform their conduct. If I recall, CA is a mandatory reporting state for clergy. There may be an exception for communications during penance, confession. If the WT had no notice, a higher court may reverse. I feel there are First Amendment problems with defining how a religion may offer penance. Reading some of the pleadings, though, Kendrick's expectation of privacy was small. He met with two elders, not one. It is routine JW policy that elders must first call Bethel immediately to report the confession.
The case is not a slam dunk. I can imagine both outcomes. With the RC cases, though, this verdict is so large that it sends a signal to the CA legislature to narrow the priest/pentinent privilege in terms of all religions. There is no question of notice if the legislature imposes the duty to report.
The most important thing to me is the negative publicity. The jury branded them as very bad actors with the huge punitive damage award. It has been reported throughout the world. Those smug people at Bethel must be very worried now.
I can theoretically understand the "two witness" rule for determining malfaesance within the org. that must be eliminated. Children are dismissed in the calculation. What boggles my mind is that the WT is not Caesar. I know the culture so the pleas to keep it quiet and let Jehovah deal with it play a crucial role. Understanding the culture is important.
There are tremendous differences between a civil suit and criminal prosecutions. The standard of proof for civil actions is a preponderance of the evidence while criminal law exacts the much more burdensome proof requirement of beyond a reasonable doubt. Another important case under appeal is the Philadelphia conviction of a Roman Catholic monsignor who did not engage in pedophile behavior but only covered it up and sent priests to new parishes that had no notice. The larger Roman Catholic issue brings publicity to the issue. Growing up, I always heard there was no group as venal as RCs. Yet here the JWs are following the RC paradigm.
Mandatory reporting does not interfere with church discipline because the law and church discipline are two separate issues. The Witnesses cannot impose their two witness rule on the rest of society.
Band on the Run wrote:
"If I recall, CA is a mandatory reporting state for clergy."
It is now, but was not as of the time period covered in the lawsuit (prior to 1997).
"There may be an exception for communications during penance, confession."
There is, but it was held inapplicable because:
"If the WT had no notice, a higher court may reverse."
The issue of notice wasn't raised in the pleadings. The questions were:
(Disclaimer: I am not a lawyer, this all comes from reading the publicly available pleadings. I can provide citations if needed.)
I've read the pleadings. Without researching it, there may be First Amendment problems with restricting attorney-client privilege. There were several issues I wanted to ask Cont's lawyer but I could not get on the line. The classic case of clergy/penitent privilege is the Roman Catholic Church but society must permit all religions to have privilege. A court must distingush between penance and counseling. With so many people involved on the WT side, the pedophile had no expectation of privacy.
If mandatory reporting did not exist in CA at the time, the WT's case is much stronger. It may be unpopular but it is unfair to find a duty when there was no notice of the duty.
Most of the questions people have would have been answered if I were able to ask a few questions.
The bad publicity is certainly going to see the WT as an uncaring, callous org. People are too jubilant for this stage. This is happy time, not ecstatic. The WT has weapons in its arsenal.
I do agree that there are clearly issues that will be raised on appeal here. Correct me if I'm wrong, but my understanding is that the any of the decisions of law can be completely overturned by an appeals court; and the decisions of fact can be overturned if the court decides that the jury was instructed wrong, or was given evidence that should have been withheld (e.g. because of clergy-penitent privilege).
However, the only concept of 'notice' that was mentioned in the pleadings was whether the elders had notice of the risk that Kendrick presented to children. There was plenty of argument around whether or not the Witnesses owed a duty of protection to plaintiff, but I didn't see any claim that even if they did owe a duty, liability should be mitigated due to lack of notice. Can you point me to any precedent backing that claim?
