The New Hampshire newspapers have published their follow up, as expected.
Court: Church elders not liable
http://www.nashuatelegraph.com/apps/pbcs.dll/article?AID=/20050716/NEWS01/107160016/-1/columnists
By ALBERT McKEON, Telegraph Staff
[email protected]
Published: Saturday, Jul. 16, 2005
In a decision that examined secular obligations for those with religious commitments, the state Supreme Court ruled that a church cannot be sued for failing to protect children from parental abuse.
Two sisters had sought damages from the Jehovah’s Witnesses congregation in Wilton and the national Watchtower Bible & Tract Society, charging local church elders did not notify civil authorities about the abuse Paul Berry had inflicted on them as youths.
But the state’s highest court on Friday sided with a lower court in dismissing their suit. The Supreme Court ruled that although the elders had a moral obligation to intervene, they had no common law duty.
“Unfortunately the church has been told it is not responsible,” attorney Marci Hamilton, who represented the sisters, said in a telephone interview from Pennsylvania.
Paul Berry received one of the toughest sentences ever in the state for sexually abusing his stepdaughter Holly Brewer: 56 to 112 years in prison. Charges that he had abused his biological daughter, Heather Berry, were dropped after his conviction in the first case.
The sisters’ mother, Sara Poisson, revealed during the trial that she had confided numerous times to church elders that Paul Berry was physically and emotionally abusing the girls; she did not suspect sexual abuse. Poisson testified church elders told her to remain quiet, pray more and try to be a better spouse.
Last year, Hillsborough County Superior Court Judge William Groff dismissed the sisters’ lawsuit. The Supreme Court backed Groff’s decision, despite citing different legal precedent in its finding.
In essence, the Supreme Court echoed Groff’s ruling that even if someone violates the state law requiring an individual – regardless of profession or clerical duty – to report suspected child abuse, the violation does not allow a civil remedy.
The court did not specifically decide if the Wilton elders violated RSA 169-C:29 – a key charge of the sisters. Even if the court had ruled on the point, the statute of limitations has expired.
Because the court decided a civil suit is impermissible, it declined to review whether Jehovah Witnesses’ elders qualified as clergy, another aspect of the sisters’ suit. Their attorney had argued that because Jehovah elders are not trained as clergy, they are not covered by religious protection.
Supreme Court Chief Justice John Broderick and Justices Joseph Nadeau and James Duggan supported the lower court; Justice Linda Dalianis concurred in part but dissented on one core matter in the suit.
Her dissent focused on the legal principle that private citizens cannot be held responsible for the unanticipated criminal acts of third parties. Unlike her colleagues, Dalianis found the Wilton congregation did fall under a special circumstances exception: By not acting it had helped facilitate Paul Berry’s criminal misconduct.
“The elders instructed Poisson not to report the abuse. . . . It is not unreasonable to infer that Berry continued abusing the plaintiffs, his daughters, safe in the knowledge that Poisson was not going to report him to secular authorities,” Dalianis wrote in her dissent.
The sisters claimed they had a special relationship with the Wilton congregation and the Watchtower body, and thus the church had a duty to protect them. But the court majority ruled that no such relationship existed because church attendance is not compulsory, the sisters were not under the custody of the church, and the abuse did not occur on church property.
“Although their positions in the Wilton Congregation invested them with a strong moral obligation to do all reasonably possible to stop the abuse, it would be inappropriate to transform a moral obligation into a common law duty,” Broderick wrote for the majority.
The majority, though, placed fault on Poisson. She had “her own independent and overarching duty to protect her children from abuse perpetrated by her husband and had a common law obligation to intervene regardless of any advice she received,” Broderick wrote.
Brewer, now 26, was abused while she was 4 to 10 years old. She lived with her family in Greenville. The state had initially sought charges against Paul Berry for sexually assaulting Heather Berry, now 23, when she no older than 3. The Telegraph typically does not identify victims of sexual abuse, but the sisters opted to go public.
Hamilton said New Hampshire should consider extending the statute of limitations on the abuse reporting law, or having a window of time in which the statute is suspended. Other states have taken such measures, and once legislators discover the degree of harm tight statutes can cause, they are willing to change the law, she said.
Albert McKeon can be reached at 594-5832 or [email protected].
http://www.theunionleader.com/articles_showfast.html?article=57804
High court rejects claim against Wilton church
By NANCY MEERSMAN
Union Leader Staff
CONCORD — The state Supreme Court ruled, 3-1, yesterday that two girls who were molested by their father cannot sue the Wilton Jehovah’s Witness congregation and the church’s governing body for allegedly concealing the abuse from authorities.
The high court said although the criminal statutes require the Jehovah’s Witnesses to report to police any sex abuse against children, they cannot be held liable in civil court if they do not report it.
Justice Linda S. Dalianis, in a dissenting opinion, concluded that the church did have a common law duty to the victims.
She pointed out that the children’s mother made approximately a dozen complaints to church elders and they instructed her not to report it to authorities and advised her to “be silent about the abuse and to be a better wife.”
Paul Berry was convicted in 2001 of molesting one of the two accusers and is serving a 56-year prison sentence on 24 sexual assault counts.
Holly Berry and her sister, Heather, sued the church in Hillsborough County Superior Court-Southern District in 2001, alleging it was the church’s practice to conceal abuse accusations from secular authorities. They said members of the congregation risked “disfellowship” if they did go to police.
The defendants were the Wilton congregation and the Watchtower Bible and Tract Society of New York.
Superior Court Judge William J. Groff dismissed the case, but on the ground that church elders were protected by religious privilege. The high court did not take up that issue.
Dalianis said the elders by muzzling the mother, in effect, became facilitators of the criminal acts and therefore could be held civilly liable for not doing anything to prevent the assaults.
Brian Cullen, a lawyer for the Jehovah’s Witnesses, said if the civil case had gone to trial, the church would have put on evidence showing that church elders did not, in fact, know about the abuse.
Cullen, an attorney with Devine, Millimet and Branch, said majority opinion steered clear of holding everyone liable for protecting everyone else under all circumstances.
“Nobody disputes this was a tragedy for the kids involved and that they went through things that should happen to nobody. But the question is, who’s responsible?,” Cullen said. “The congregation disputes it had any knowledge of the crimes.”
He explained that the court assumed solely for the purpose of deciding the legal issues that the church knew about the abuse. The high court makes no determination of the facts; that is the role of the lower courts.
“Everyone has the duty to report suspected child abuse, but it doesn’t give rise to civil liability if you fail,” Cullen said.
Jared O’Connor, the Nashua attorney for the plaintiffs, said he was disappointed in the decision but he understood the court’s reluctance expand common law liability.
“It means clergy abuse victims in New Hampshire are going to have to turn to the Legislature if justice is to be done,” he said.
He said the victims, now 23 and 26, felt they were wronged by the church and were “quite brave in coming forward.”
O’Connor said although it was the “end of the road” for the lawsuit, he hopes the reasoning in the dissent will “give other courts food for thought.”
The Survivors Network of those Abused by Priests (SNAP) had been monitoring the case.
“It’s terribly disappointing; our hearts ache for these brave young women,” said SNAPS national director David Clohessy.
“I think the ball is now squarely in the legislators’ court. They have to reform the statute of limitations and other laws to protect kids and to expose predators and those who enable them, transfer them and shield them.”
