Day 5 - Fessler vs. Watchtower – Ends: Plaintiff settles in Jehovah’s Witness Child Abuse Trial

by darkspilver 90 Replies latest watchtower child-abuse

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  OrphanCrow

  Fisherman: What I find incredible is how people only object to the setting. I suppose it would be ok for some people if a person confessed child abuse to a Catholic priest or a pastor or somebody else other than a jw elder. That is ok as long as that person remains secret about it. Say a couple of hail maries and hush is the word and that is ok vs the same man confessing the sin under a JC setting, that is not ok. Makes a lot of sense.

  What is truly incredible is that anybody thinks that a judicial process, where the JW elders seek out a potential offender and seek out evidence that will prove or disprove the offender's guilt or innocence - after a potential victim lays a complaint - is anywhere near the same as a penitent seeking out a priest for abolition of what they personally feel are their perceived sins. That is what is incredible.

  It is not the setting per se, Fisherman, it is the processes themselves, and the intent, which are entirely different.

  *to add - in the "setting" that you are describing (and I assume that to be a Catholic confessional after your reference to hail mary's), the clergy never goes out and tries to establish guilt of the one confessing, the priest never seeks out a confession for what they may perceive to be a sin, the clergy never investigates a person who confesses, they don't go out and gather witnesses and go to the victim to ask them to confront the one who "confessed". There is no accusation process in the setting that you are trying to compare the JWs investigation process to.
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  Richard Oliver

  McFarland v W Congregation of Jehovah's Witnesses Loraine, Ohio
  

  Holdings: The Court of Appeals, Whitmore, J., held that:

  1 correspondence of a secular nature between local congregation and service department of society's national headquarters was not protected by clergy-penitent privilege;

  2 correspondence regarding spiritual guidance was protected by clergy-penitent privilege; and

  3 documents were not protected by attorney-client privilege.

  
  

  Communication to anyone that holds privilege is not automatically revoked if that communication is shared to a third party. That would negate confidentiality between a doctor and patient, if the doctor has to share that confidential information to the rest of the patient's care team. Them repeating what they spoke with the patient about does not release the privilege.

  Also, the number of people in a room does not release privilege. If a client has hired a law firm to handle a case, depending on the complexity of the situation there maybe a number of lawyers and staff in a room to discuss the matter. Just because there maybe 5 people in the room, all 5 people in that room still has to be bound by the confidential nature of the discussion.

  
  

  Some will also say that the nature of the Judicial Committee also voids the confidential nature of the communication. Where yes that is true in some states such as Deleware, in Deleware v Laurel Congregation, the court ruled that because the elders said that the conversation was "seeking spiritual advice and counsel from us as elders in a private setting." The court ruled that this is not this conversation was not intended to be a repentant communication in a communication of sacrament. The court ruled that because the legislature did not spell out specifically what is considered a confession, they were to make the determination based on the standard reading of Black's Law Dictionary.

  
  

  But not all states view it this way. Many states in their clergy-penitent privilege include the term discipline in their statute. Washington State is one example. their priest-peninent privilege reads as:

  A member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional *785 character, in the course of discipline enjoined by the church to which he or she belongs.

  And in State v Martin the Washington State Supreme Court ruled:

  (1) requirement for applicability of statutory clergy member privilege that confession be received “in the course of discipline enjoined by the church to which he or she belongs” refers to clergy member, rather than penitent; (2) what constitutes a “confession” for purposes of statute is determined by church in question, rather than court, with term broadly construed; and (3) communications in question were protected by privilege.
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  Fisherman

  It is US law that protects confidential c/p conversations of child abusers not wt.

  It is US legislation that considers the conversation between elder and jw as C/p not wt. wt views it as elder/ jw.

  It is hypocritical and funny that you do not object to US law that protects all penitents including child abusers.

  You really don't care about children at all because if you did your beef would be about the law that protects penitents and not about wt not qualifying.

  As a wt hater, your only concern is that child abuser comunications with elders should not qualify, that is it. Let the abusers join another religion and confess to them the proper way and the he-- with the children.

  It does not mattter to you about the children as long as the abusers confess correctly to the clergy of babylonia.

  That is the real issue with you. That is what you have expressed, that jw elders in a jc setting do not qualify as clergy in a spiritual setting and not that all communications about child abuse in any setting or relationship should be disclosed regardless of qualifications.

  You target wt and not US law which protects child abuse communications in a c/p setting Your true motive being revealed by your expressions is to punish the wt regardless of justice. What hypocrisy and unfairness!
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  Richard Oliver

  Jane Doe v Corporation of Presidents of Church of Jesus Christ and of Latter Day Saints:

  Holdings: The Court of Appeals, Schindler, J., held that:

  1 participants in disciplinary proceeding were ordained clergy, and thus clergy-penitent privilege protected report from disclosure, and

  2 neither father's agreement to allow previous confession to be used in church disciplinary proceeding, nor confidential recording and transmission of report to church authorities effected waiver of father's right to assert privilege.

  Facts of the case in part:

  John Roe's disciplinary council was held on Sunday January 10, 1999. Roe attended and apparently confessed in the course of the proceeding. The disciplinary council decided the appropriate discipline for Roe was disfellowshipment. LDS Church procedures require that an RCDA be prepared and sent to the Church headquarters in Utah when the discipline is disfellowshipment or excommunication. An RCDA is a summary of the disciplinary proceedings and describes the decision of the council. The LDS Church did not report Jane Doe's allegations that her stepfather sexually abused her to the civil authorities.

  
  

  State v Archilbeque:

  Holdings: The Court of Appeals, Gemmill, J., held that:

  1 defendant's alleged confession was protected by the clergy-penitent privilege unless the privilege was waived;

  2 defendant did not waive the clergy-penitent privilege by having his wife present during the alleged confession;

  3 defendant did not impliedly waive the clergy-penitent privilege; and

  4 defendant's statements to his wife in advance of allegedly confessing to the bishop did not constitute a waiver of the clergy-penitent privilege.

  
  

  People v Bragg:

  
  

  Holdings: The Court of Appeals, Gleicher, P.J., held that:

  1 cleric-congregant privilege is not limited to “confessions”;

  2 defendant's statements to his Baptist pastor, admitting to having sexually assaulted his minor cousin, fell within scope of cleric-congregant privilege;

  3 privilege applied regardless of whether cleric or congregant initiated the conversation; and

  4 presence of defendant's mother at time of defendant's communication did not waive privilege.

  
  

  
  
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  Fisherman

  Would it please you if wt did things like Babylonia? or your way? Child abuse non-disclosure is good for you then. As it is good for you now - except for wt way of doing things.

  To you: "Abortions should be done in secret, this clinic that I hate is not doing abortions the way I like it. Everybody else that I like qualifies except the clinic that I hate"
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  steve2

  "Would it please you if wt did things like Babylonia? or your way? Child abuse non-disclosure is good for you then. As it is good for you now - except for wt way of doing things."

  We speak to our immediate experience - even if there are instances elsewhere. Because we do not single out other religious groups who make use of c-p privilege does not mean we are "okay" about their use of it.

  One aspect that has consistently stood out - and the Australian Royal Commission has highlighted it - is that secular law requires reporting to authorities in cases on current risk and compromise of safety. There is no c-p privilege under those circumstances.

  Moreover, those legal arguments aside, it would not be unusual to expect that a religious group - any religious group - that claims exclusivity of standing with God - would lead the way in protecting children or at least show a robust willingness to learn how to do so, not fob off child safety as the concern of parents. Some here have noted that the vigilance with which JW organization pursues the threat of apostasy needs to be replicated regarding its response to allegations of child sexual abuse.
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  OrphanCrow

  steve: Moreover, those legal arguments aside, it would not be unusual to expect that a religious group - any religious group - that claims exclusivity of standing with God - would lead the way in protecting children or at least show a robust willingness to learn how to do so, not fob off child safety as the concern of parents.

  Exactly. The WT relies on the argument that the sanctity of the family is paramount. They have fought numerous court battles over the blood transfusion ban for minor children using this position and are now using the same umbrella to avoid responsibility for not reporting child sex abuse.

  When an issue arise that concerns child sex abuse, the WT attempts to hold the parents accountable and blame them for not protecting their children. Yet, the WT will turn around and claim, in their response to the ARC, that the child sex abuse problems that they are experiencing within their group are mainly "familial" cases and because of that, the WT is not responsible for fostering child sex abuse.

  The first key submission made on behalf of the Watchtower & Ors was that:
  • familial child sexual abuse is not institutional sexual abuse, as has been acknowledged by the Royal Commission. Similarly it is self-evident that, when child sexual abuse occurs outside ‘institutional’ contexts as defined, the response to it does not fall within the Terms of Reference of this Royal Commission
  • the Royal Commission proceeds on the basis that, when an allegation of familial sexual abuse becomes known to an elder and is subsequently scripturally investigated by congregation elders, it ceases to be familial abuse and becomes institutional abuse. This conflation of familial and institutional sexual abuse does not accord with the Terms of Reference.

  Apparently, according to the WT, child sex abuse is a "family issue". They claim that the parents are supposed to protect the children yet the WT claims that the majority of the child sex abuse cases occur within JW families. How does that work? The same ones who are supposed to report the abuse are the same ones that are likely doing the abuse to begin with?

  
  
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  John Redwood

  darkspilver,

  Just for clarification, the trial was actually 4 days, and I was in court for every minute of this trial. The trial began on a Tuesday, then Wednesday, but we were snowed in on Thursday. Trial resumed on Friday, then Monday. By lunch on Monday Watchtower had folded its case and decided to settle. I will be providing further details, some of which you may have already read.

  JR
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  steve2

  Thanks for the further details John Redwood. Your reports, comments and insights are extremely useful,
  
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  zeb

  " no clue how to come into a court room and tell the truth"... just as they did at the Royal Commission.

  Fisherman suggest you view the footage/videos of the royal commission fully spend the time necessary to see how elders fronted up to the court with no preparation and nil understanding of procedure. They were criticized by the justice for this.

  Truth? the lawyer here for wt said he knew nothing of the term 'theological warfare' which is permission to lie when it suits. I strongly suggest you get on a plane and come to Australia and attend the hearing of the ARC and give them of your knowledge and see how long you last.