from: http://writ.news.findlaw.com/hamilton/20070125.html
Clergy Abuse Developments, in Denmark and California, Regarding the Jehovah's Witnesses, the Catholic Church, and an Oscar-Nominated Documentary
By MARCI HAMILTON
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Thursday, Jan. 25, 2007
The Jehovah's Witnesses religious organization is rightly credited with establishing important free speech precedent in the United States. Among other landmark cases, the organization secured decisions recognizing the right to avoid having the government force one to say the Pledge of Allegiance, in West Virginia Board of Ed. v. Barnette, and recognizing the right to peaceably proselytize in Cantwell v. Connecticut. The recent documentary "Knocking" focuses on their contributions in this arena.
It is extraordinarily ironic, then, that the Jehovah's Witnesses have recently, in Denmark, taken the position that speech, including speech by the press, should be punished and suppressed. It appears that when the topic is alleged clergy abuse within the organization, its position on freedom of speech makes a 180-degree turn. Apparently, the Jehovah's Witnesses support free speech for themselves, but not for their critics.
The Facts, Allegations, and Outcome in the Denmark Case
The case began when, in Fall 2004, one of Denmark's largest newspapers, Ekstra Bladet, ran a series of newspaper articles regarding credible allegations of sexual molestation within the Jehovah's Witnesses, and of a cover-up. The articles' titles (as translated) included "Jehovah-Leader Hides Child Molesting," "Keep Quiet About Sexual Molesting," and "Jehovah-Order: Keep Quiet About Child Molesting," as well as others.
The newspaper reported that those who very credibly claimed they were victims of childhood sexual abuse within the organization were compelled to keep their claims secret. Like the Boston Globe's series on the Boston Archdiocese's cover-up of clergy abuse within the Roman Catholic Church, which ran five years ago, this series focused not only on the actions of individuals, but on the organization-wide policies that led to institutional secrecy about child abuse allegations. The series focused, as well, on the impact of the policies, and the underlying alleged abuse, on victims and their families.
The local Jehovah's Witnesses Branch Office Committee, composed of seven members who govern the organization, sued the newspaper, Ekstra Bladet, and its Chief Editor, Bent Falbert, for slander. They demanded 350,000 kroner and that the Chief Editor be criminally charged with slander. Last December, Judge Anne Grethe Stockholm rejected all of their claims, and ordered them to pay the other side's legal fees, which amounted to 50,000 kroner.
The court reasoned that the topics addressed were newsworthy, and a matter of public interest, and that the stories discussing these topics contained legitimate legal analysis.
Rulings in the Proceedings Against the Witnesses and Others in California
Meanwhile, in California, the Jehovah's Witnesses there are facing lawsuits brought by alleged child sexual abuse victims, as well - and also losing on key issues. In an October 2006 ruling, for example, a Napa court ruled that the clergy-penitent privilege does not cover communications within the organization regarding alleged childhood sexual abuse.
Meanwhile, the Catholic Church in California has made the same argument, and has also lost. Rightly so: Discussions of crimes allegedly committed by organization members are hardly the kind of religious communications the priest-penitent privilege is meant to protect.
A Well-Deserved Oscar Nomination Emphasizes the Role of Free Speech in Ending Clergy Abuse and Gaining Justice for the Victims
Meanwhile, California is currently important in the fight against clergy abuse in another way, as well: In Los Angeles, recently-announced Oscar nominations included a richly-deserved one for the stark and disturbing documentary, "Deliver Us from Evil." As I discussed in a previous column, the film features troubling interviews with a priest child-abuse perpetrator, one Fr. O'Grady -- who was under the watch of L.A.'s Cardinal Mahony. This film has so much power, it truly deserves to win the Award.
Free speech and a free press - as well as open civil discovery - are key to vanquishing clergy abuse and giving justice to victims. When the Boston Globe broke the Catholic Church scandal in the U.S. five years ago, very few even knew about clergy abuse outside the Church. Thus, it's unclear whether a shocking film like "Deliver Us from Evil" more likely would have been treated as an exception, rather than evidence of a deep, appalling institutional problem.
Now, not only has the Church proved to be incapable of keeping its ugliest secrets, but its public relations campaign has utterly failed. The long era when no one would have dared portray the Church in the light that "Deliver Us from Evil" casts upon it, is gone for good.
The Jehovah's Witness lawsuit in Denmark shows the same internal dynamic as in the Catholic Church, and based on the allegations, the institutions have adopted matching strategies: hide as much as possible and when exposed, go on the offensive. Somehow, these institutions came to believe that they have a right to an internal, secret sphere where they cannot be held accountable for their culpability in the suffering of children. Fortunately, both Danish and California courts, and the Academy of Motion Picture Arts and Sciences, are proving them to be very wrong.
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Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton's most recent book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).