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Article published Jul 16, 2005
Church not liable in abuse Victims lose Jehovah's Witness sex assault case
By ANNMARIE TIMMINS
Monitor staff

http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20050716/REPOSITORY/507160317/1013/NEWS03

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n a split decision, the state Supreme Court has rejected an appeal by two sisters trying to sue their Jehovah's Witness congregation for not reporting abuse by their father even though church elders were told of it a dozen times. Dividing the court was the question of how much responsibility church leaders have toward their parishioners.

The majority of judges concluded that people can be criminally charged but not sued for failing to report child abuse unless they have a heightened level of responsibility to the abused. Leaders of the Jehovah's Witnesses, even though they counseled the girls' parents about the abuse, did not meet that threshold, according to three of four judges who heard the case.

The one person in this case with that "common law"responsibility, the majority ruled, was the girls' mother, who knew her husband was abusing their children.

Justice Linda Dalianis dissented, saying church leaders did have a special obligation because they told the girls' mother to pray about the abuse and "be a better wife" but not to report it to the police. Also, Dalianis found the church had been told often enough about the physical and sexual assaults to expect them to continue.

"In this case, elders of . . . (the) Wilton Congregation not only created an opportunity for Paul Berry (the girls' father) to continue abusing the plaintiffs precisely because of their inaction, but actively facilitated the continuing abuse by their instruction to (the girls' mother) not to act," Dalianis wrote. (The emphasis is hers.) "It is not unreasonable to infer that Berry continued abusing . . . his daughters, safe in the knowledge that (their mother) was not going to report him to secular authorities."

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The sisters' attorneys said yesterday they are considering asking the state Supreme Court to reconsider.
The state attorney general's office weighed similar questions of church responsibility when it brought child endangerment charges against the Catholic Church in 2002 for repeatedly moving abusive priests to unsuspecting congregations. But legal experts said yesterday there are significant differences between that case and this one.

For starters, the state brought a criminal case alleging child endangerment against the Catholic Church; this is a civil lawsuit.

But more importantly, the Catholic abusers and their supervisors were paid church employees while the elders of the Jehovah's Witness churches are not. The Catholic victims had a different relationships with that church because they were often altar boys or members of church youth groups or camps, not merely members of the church. Also, they were often abused on church property or on church outings.

The sisters, by contrast, were only members of the church and were abused by their father off church grounds. And he was not a church official.

Paul Berry began physically and sexually abusing his daughter and stepdaughter in the 1980s, when they were 3 and 10, according to court records. At the time, the family attended the Jehovah's Witness church in Wilton. In once case, Berry hung one daughter by her wrists from hooks on a barn wall.

Their mother, Sara Poissson, reported the abuse to church officials many times. The Jehovah's Witness church requires two witnesses before it levels sanctions against a molester, and a child cannot be his or her own witness. The elders met with Poisson and her husband to talk about the abuse but did not report it. And they told her not to report it, according to court records.

The police learned of the abuse after another of Poisson's children arrived at school with the imprint of a fly swatter on her leg, according to the court file. While investigating that incident, a state child care worker learned of the other abuse and reported it.

Berry was convicted in 2000 of abusing one of the girls and is serving 56 to 112 years in prison. Authorities dropped the charges involving the other daughter. A year after sentencing, the girls brought their civil lawsuit against Berry and the church.

A superior court judge concluded the lawsuit against the church had been filed within the required amount of time, over the objections of the church's attorneys. But he dismissed the lawsuit after concluding that the Poisson had disclosed the abuse in private conversations with church elders that were protected by a state law.

In New Hampshire, everyone is obligated to report suspected child abuse. But church leaders are exempted from reporting the abuse to the authorities if they learn of it during a confession or other confidential conversation.

The sisters appealed the judge's ruling to the state Supreme Court on several grounds. The church filed its own appeal, arguing that the trial judge had erred in letting the sisters' lawsuit be filed at all because it was initiated more than three years after the abuse occurred. (The judge found the sisters had met the three-year mark because they had brought the case within three years of discovering the church's alleged violations.)

The high court heard oral arguments on the appeal in October. In its ruling yesterday, the majority avoided some of the bigger questions by deciding the case on the more narrow issue of responsibility.

For example, the sisters' attorneys had asked the high court to decide whether the obligation to report abuse trumps the exemption clergy enjoy when they are in private conversations with parishioners. None of the justices, even Dalianis in her dissent, responded to this issue.

The sisters also asked whether they could bring their lawsuits without violating the First Amendment protection of freedom of religion. The majority of justices did not address this issue, but Dalianis did. She noted that while courts around the country are split on this issue, she did not find a religious doctrine that would be burdened by requiring the church to protect the sisters from abuse.

Her minority opinion, however, is not binding.

J.R. Brown, spokesman for the Jehovah's Witnesses, could not be reached yesterday.

Jared O'Connor, who represents the sisters, said he thought the high court ruled as it did to avoid "a slippery slope" where anyone could be sued for not reporting child abuse. But he didn't buy the conclusion, given the culture of the Jehovah's Witness church.

"The mother had no place else to turn," O'Connor said. "The majority opinion makes it sound like any other situation where people are free to go out and seek help from the secular authorities. There is much less opportunity in this church, especially for women, to seek help elsewhere."

O'Connor was also disappointed with what the ruling didn't say. He was hoping the judges would clarify the difference between mandatory reporting and religious exemption. He said it may now be up to the Legislature to do that.

Marcus Hurn, a professor at Franklin Pierce Law Center, liked the distinction the high court made between criminal and civil liability. While everyone should report abuse, he doesn't believe people should be sued for not doing so.

"We are in a denial of responsibility era," he said, "where we have people saying they are not responsible for what they eat and smoke."

He continued. "This is a hard case, and a lot of reasonable people could say these elders went too far," he said. "But I don't think the majority should be criticized for sticking to the traditional principles. A sane adult parent has the primary responsibility for the protection of their child."

Peter Hutchins, a Manchester attorney who represented several victims of clergy abuse in lawsuits against priests, said victims at least have something to celebrate in Dalianis's ruling because she concluded the three-year window for bringing lawsuits is somewhat flexible. While her decision isn't binding, Hutchins said lawyers will be able to cite it. And, he now knows were at least one Supreme Court justice stands on that issue.

(Annmarie Timmins can be reached at 224-5301, ext. 323, or by e-mail at atimmins@cmonitor.com.)

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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 moni tori ng 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.”

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Article published Jul 23, 2005
State’s child abuse law needs improvement

http://www.nashuatelegraph.com/apps/pbcs.dll/article?AID=/20050723/OPINION01/107230001/-1/ENTERTAINMENT


New Hampshire law requires any person with reason to suspect a child has been abused or neglected to report those suspicions to law enforcement authorities.

But the law is unclear about when exceptions apply, and a split decision issued last week by the state Supreme Court did little to clarify matters.

It is imperative that the Legislature, which has been a leader in the fight to end child sex abuse and domestic violence, act quickly to answer some key questions.

The case involved two children whose family belonged to a Jehovah’s Witness congregation in Wilton. Paul Berry began abusing his daughter and stepdaughter when one child was 10 and the other 3, according to court records.

Berry was convicted of abuse and is serving a 56- to 112-year prison sentence. The children, now adults, sued the church for damages.

The story is all the more tragic because their mother claims she reported her suspicions to church elders on a dozen occasions, including several meetings when her husband was present.

She was told, she said, “to be silent about the abuse and be a better wife.”

The elders – who are elected and unpaid – never reported the alleged abuse to authorities and, according to the mother, reminded her that such matters should be handled by the church and not secular authorities.

The case raised a host of issues that the three-judge majority – Chief Justice John Broderick and Justices James Duggan and Joseph Nadeau -declined to address. (Justice Richard Galway did not sit, and Justice Linda Dalianis dissented from a major portion of the decision.)

The reporting law requires all citizens to report suspected abuse, though clergy who learn of the abuse during a confession or similar privileged conversation are exempt.

The case did not clarify whether elders in the Jehovah’s church or other religious leaders who have no special training enjoy the religious exemption accorded to clergy. Nor did it clarify what constitutes a privileged conversation.

High courts attempt to avoid deciding constitutional issues and rule first on matters of statutory and common law. So the majority held that since the reporting law made provision only for criminal penalties, not civil ones, the elders could not be held liable.

Dalianis disagreed. The church, she wrote, enjoyed a “special relationship” with the children that imposed a common-law duty on the elders to report the abuse or to at least advise the mother to report it.

The elders, Dalianis said, facilitated the continuing abuse by counseling the mother to be silent. If that’s true, the question becomes why aren’t the church’s leaders facing criminal charges?

There are no easy answers to the questions the case raises. But the next session of the Legislature needs to spell out when church leaders must live up to the reporting law and when they are exempt. It should also clarify when it is appropriate to sue for civil damages caused by a failure to report abuse.

Peter Hutchins, a lawyer who settled 200 cases against the Roman Catholic Diocese of Manchester, believes that had those suits been filed after the Berry ruling, many victims who were not altar boys, at church camps or in some other direct relationship with the church would not have been able to seek damages.

Hutchins estimates that as many as 15 percent of his clients would have been left with no recourse.

That possibility is certainly not in the interest of society. The Legislature should use the court ruling as a starting point for debate and act quickly to strengthen this important law. – The Concord Monitor