The Watchtower’s Chocolate Cake Defence.
I received my copy of Barbara Anderson’s CD “Paedophilia in an American Religion” a month or two ago, and I have been reading through it since.
What follows, although I have called this a review, is in no sense a scholarly consideration of the legal merits of the cases described, a task for which I am wholly unqualified. These are, rather, my subjective reflections on the material presented, the impressions I gathered while reading the legal filings, my untrained, common-man appraisal of the cases laid out in those documents. I’ll also admit to being swayed by tone of voice adopted, and to using my own common-sense yardstick in determining the reasonableness of the statements made, the responses given and the arguments put forward.
And I might as well jump straight in and say it: none of this material reflects well on the Watchtower organisation.
To be clear: I’m not talking about the fact that the Watchtower effectively “lost” the lawsuits, being ultimately forced into paying out an undisclosed but widely-suspected multi-million dollar settlement to the Plaintiffs. The result for them was bad enough, for sure, but what struck me is the process they followed, the journey they took, their attitude and conduct as the trial played out over nearly four years.
While reading through the many, many hundreds of pages of the Watchtower’s stonewalling, time-wasting strategies, and their idiotic arguments put forward in defending these lawsuits, I couldn’t help but be reminded of a newspaper column I had read, more than ten years ago, in The (London) Times. I think it was by The Times’s then parliamentary correspondent Matthew Parris. I have never forgotten it.
In that column he was describing the torment of some hapless government minister-or-other, who had been caught out in a particularly embarrassing, career-threatening scandal, appearing before the House and attempting to save his job. (This kind of thing happened a lot in the dying days of the Major Government.)
The writer said that the demeanour of the minister that day brought to mind a boy he remembered, back in his schooldays, who had been accused of stealing another boy’s chocolate cake. In his desperation to bluster his way out of the difficulty, the boy put up a spirited and aggressive defence:
“First of all, there NEVER WAS any chocolate cake !
…And in any case, there’s no evidence that the chocolate cake ever got stolen !
…And in any case, it wasn’t ME who stole it !
…And in any case, he TOLD me I could take it !”
At the risk of labouring the obvious, the point here is that any one of those lines of defence might work, and be perfectly reasonable to plead. Stick with one line of defence, and you might lose the case, but at least you’ll be left with some shred of dignity and honour.
But employing them all, jumbled together in a ludicrous self-contradictory heap simply invites suspicion, disbelief and ridicule. And rightly so.
And that’s why I have called this review the Watchtower’s Chocolate Cake Defence. Reading through the many, many different lines of defence the Watchtower put up in these lawsuits you can’t help but be reminded of that blustering schoolboy.
[For ease of reference the page number references in brackets are all from the “Charissa et al Co-ordinated Cases” pdf file on the CD – the largest single file on the CD, 3700 pages, which contained sufficient examples of the points I wanted to show.]
To start at the very beginning - “there never was any chocolate cake!” - throughout these lawsuits, in 5,000-odd pages of documents, the sexual abuse suffered by the victims is always, ALWAYS, relentlessly described as “the alleged abuse” - even, as far as I can tell, where there is no question about the fact of it. This is a “tone of voice” point, I’ll admit, it’s not substantive – it’s just Watchtower mood music, but it’s significant. They’re not giving an inch, they’re ready for a fight, right from the start.
Their very first response in the Charissa case is to try to quash the whole thing: “You can’t try us in California – we don’t exist in California” (p 2837) . Might be a surprise to some of you, but apparently the Jehovah’s Witness organisation simply does not exist in California – they have no office, no officers, no phone number, no bank account, pay no taxes, never held a meeting, never held a conference in California, and they supervise no congregations there. Seemingly, they have no contacts there whatsoever.
“And, in any case…” On top of the non-existence defence they add that (p 2687) the lawsuits are all “clergy malpractice claims” which are a violation of First Amendment rights i.e they entangle the courts with church affairs, and so must fail. Not only that, but the neither the Watchtower, nor its Clergy (the Elders) owed any duty of care to any church member (p 2694) , there was no “special relationship” between clergy and members (p 2693), no fiduciary duty, so they can’t have been negligent (p 2695) . And, in any event, the Watchtower can’t be held liable for the things an Elder or member does (p 2700).
Now, that’s a whole ton of information that might be news to regular Witnesses - I know, I was one for twenty years. I would have been shocked at the suggestion that we even HAD any clergy. But just suppose I got over that and rationalised it “ - well, that’s just what the courts call Elders in legal language.” The next thing to hit me would be digesting the Watchtower’s claim that those Elders have no special relationship to me, and they owe no duty of care towards me. They have, apparently, absolutely no “duty to warn” me of any sexual abusers they know about in my congregation (p 1506). As for children, the Watchtower is clear, the ONLY people to owe them a duty of care are their parents (p 135).
And, of course, I would notice that, despite the Watchtower requiring Elders to obey slavishly every directive from HQ, they will accept zero liability for anything their Elders do.
They repeat this point over and over, the fact that there’s no “Special Relationship” between Elders and members (p 1498). In fact, the Watchtower even goes so far as to remind the court (p 1499) that in California there exists no legal duty to aid/protect another from harm EXCEPT in the case of a special relationship. Helpfully, the Watchtower lists some examples ( p 1499-1500) of where a Special Relationship DOES exist:
- Landowner and person coming on to the land
- Manufacturer of goods and buyer
- Vendor and Purchaser
- Carrier and Passenger
- Innkeeper and Guest
But, definitely NOT JW Elder and abuse victim – no duty there, no sir.
Continuing on, Watchtower Pennsylvania (plaintiffs had cited both the NY and PA corporations in the suit, on the not-unreasonable grounds that they were, to all intents and purposes, one common organisation) after reminding the court yet again of their complete non-existence in California (p 1358) draws the court’s attention (p 1351, 1352) to how independent and unrelated they are to Watchtower NY. They appoint no Elders, organise no assemblies, and supervise no one. They’re completely different ! In fact, who ARE these Watchtower NY people? They’re nothing to do with us, - we should be dismissed from the case.
And so it goes on, at every turn they try to slow up the process and frustrate the progress of the case. At one point, Watchtower is asked to provide information to help with the “discovery” process. They are asked (p554) in document form 74 questions (“interrogatories”) about the organisation and its processes for dealing with alleged sex abuse cases.
For every single case, every one, they employ the same stock answer - to each request, they say over and over again, that it is “overly broad, vague and ambiguous”; the information requested is “irrelevant” and will not “lead to the discovery of admissible evidence”. They don’t even bother to vary the wording, it’s just what lawyers call “boilerplate” language, there’s no attempt to argue each point, it’s simply stonewalling. They even use this formulated answer on completely innocuous, commonplace requests – lists of past and present board directors, for example.
They are in absolutely no hurry to see this case get to trial – at one point, in response to the plaintiffs trying to get a trial date set, they even argue to the court ( p3202) that setting a trial date would slow the process up!
Nine months into the suit, the Watchtower lawyers made a definitive statement of 15 reasons why the case should fail (p 1318).
1. Case is barred by the First Amendment (Infringement of Religion)
2. Case is unconstitutional
3. Plaintiffs haven’t stated sufficient facts
4. It’s barred by statute of limitations
5. There’s been unreasonable delay in bringing this suit
6. Plaintiffs didn’t mitigate their losses
7. Plaintiffs have failed to plead fraud with Particularity (Need more names, dates)
8. Insufficient facts to justify punitive damages
9. Plaintiffs have failed to provide adequate notice
10. Estoppel - Plaintiffs own conduct bars them pursuing this case
11. There were other, third parties involved
12. Superseding Acts (whatever we did, others did worse, later)
13. No duty of care
14. Lack of Jurisdiction (We can’t be tried in California)
15. Punitive damages re unconstitutional - violation of First, Fifth, Sixth, Eighth, Fourteenth Amendments.
So, let’s reflect on that for a moment, turn to our on-line translator software and render all that legalese into Chocolate-Cake Defense:
“First of all, this is all just alleged stuff,
And in any case, it was all a long time ago,
And in any case, they should have thought of suing sooner,
And in any case, they didn’t do enough to help themselves
And, in any case, they haven’t constructed their case right,
And, in any case, it wasn’t just us,
And, in any case, we’ve got nothing to do with it,
And in any case, however badly we handled it – that’s our religion, that is, and you can’t touch us,
And, in any case, we don’t exist [in California].
Throughout the case the Watchtower seeks to prevent the court from seeing any of their records to do with the abuse cases. They try to argue that all the notes the Elders make in Judicial Committees, the reports they make back to Branch Office – all this information is covered by “penitent-clergy” privilege (p 3241); i.e. it’s the same kind of thing as a priest hearing a confession –absolutely private, to be kept secret and never usable in a court of law. The court saw through this in double-quick time and threw it out, but Watchtower appealed and kept the issue going for almost a year.
The other wheeze they have dreamt up is that the Legal Department is the attorney for all the other Watchtower departments so all the communications between them (which would have cast light on how the abusers were dealt with) are all privileged communications as well, so they can’t be used in court either (p 3069). And that one DID stand up – sneaky, eh?
In addition, they argued that J R Brown - Watchtower Head of Public Relations - should not be deposed as a witness on 2 grounds: (a) because he had no special knowledge (p 3069) of Watchtower procedures on sex abuse - this is the guy who wrote the detailed 3-page letter to the BBC about this very issue; and (b) because he is such a busy corporate bigshot - “an official at the highest level of corporate management” (p 3071) - that it would be “annoying and embarrassing” for him to have to appear.
One particularly striking example of the Watchtower’s fancy legal footwork is with regard to the issue of Agency. One of the points raised in the original complaint by the Plaintiffs was that there was a “conspiracy” on the part of defendants to cover up the sexual abuse. On a common-sense reading of the facts that are known, it’s hard to deny that just such a conspiracy took place. But, as a point of California law, Agents/employees cannot be held to conspire with their Principals; by definition, between those parties there can be no “conspiracy” - it’s called the “Agent’s Immunity” rule. Accordingly, when dealing with this point the Watchtower argues fervently that because of the Agency relationship the conspiracy allegations must be struck (p 123, p1122). But, elsewhere in the case, where the issue of Principals being liable for the actions of their Agents/employees is raised, the Watchtower with no less passion argues that the Elders/abusers were NOT acting as their Agents (p 2700).
Well done, Watchtower. This is Chocolate-Cake Defence of a very high order.
So, having read through all this stuff, I honestly believe any reasonable and unbiased observer would reach the same conclusionas me: that there’s no argument too ridiculous, no proposition too bizarre, no untruth too flagrant, no lie too barefaced, that the Watchtower won’t stoop to use it in defending its interests.
In closing this, let me make one thing clear: though being no lawyer, I am not so naïve that I don’t realise that these kind of tricks are commonplace. I realise that all these tactics, these delays, the stonewalling, the time-consuming nonsense arguments, are just how things are in the Courts of Law of any developed country. This is how corporations defend themselves.
But my sense of outrage (somewhat mock and for-show, I admit) arises only because I am paying the Watchtower the courtesy of taking them at their own estimation of themselves: God’s sole channel of communication on earth today.
Wouldn’t you rather imagine that God’s organisation would reflect some, well, Godly qualities in its conduct? Especially in sensitive cases like this where the victims have had a lifetime of trauma arising from the Watchtower’s actions?
Do we detect any hint of remorse? Concern? Regret? Any hint of that famous loving-kindness?
Or do we see an organisation being dragged before the courts kicking and screaming; obstructive, defiant, obstinate, and spitting and snarling at its opponents?
Do you imagine that God in Heaven, Jehovah himself, looks down on the proceedings, observing every sneaky trick, every ridiculous red-herring argument, every evasion, every lie, every resort to Chocolate-Cake tactics and applauds his representatives?
If Jehovah read Barbara Anderson’s CD would he be proud of what the Watchtower does?
Is Bob Schnack – Watchtower’s lead counsel – proud of what he does?
I only ask.
Duncan.
p.s. Bonus Feature!
Your Cut-out-and-keep Guide!
That Watchtower Chocolate Cake Defence in Full!!
First of all, none of this stuff happened,
In any case, it all happened a long time ago,
In any case, it’s nothing to do with us,
In any case, it wasn’t just us,
In any case, this is our religion – law can’t touch us,
In any case, they were our agents,
In any case, they weren’t our agents,
In any case, they’re all clergy, so you can’t even ask them about it,
In any case, we don’t exist.
http://www.jehovahs-witness.com/6/145224/1.ashx
