I've given this recent lawsuit quite a bit of thought and come to sound conclusions. After examining other organization's child-protection policies (namely churches), what I've come to realize is there's a one-size fits all solution that's socially acceptable; all information obtained through witnesses and confessions by organizational personnel is be used to aid and abet law-enforcement. There's no in-between or anything short of this objective that's socially acceptable. Pedophilia is believed to be a sexual orientation like homosexuality, in that it's hardwired into a person's biological makeup and thus incurable. Pedophiles should thus be locked up and the key thrown away or shot.
I'm half a JW or maybe a fourth, but I know Jehovah's Witnesses believe a person can change. What I am confused about, is what about Jehovah's Witnesses child protection policy needs to change?
http://www.jw-media.org/aboutjw/article23.htm
In addition to making a report to the branch office, the elders may be required by law to report even uncorroborated or unsubstantiated allegations to the authorities. If so, the elders receive proper legal direction to ensure that they comply with the law. Additionally, the victim or anyone else who has knowledge of the allegation may wish to report the matter to the authorities, and it is his or her absolute right to do so.
If, when confronted, the accused confesses that he is guilty of child abuse, the elders take appropriate congregational action. If he is not repentant, he will not be permitted to remain a member of the congregation. Even if he is repentant—is cut to the heart and is thus resolutely determined to avoid such conduct in the future—what was stated in the January 1, 1997, issue of The Watchtower applies. The article said: “For the protection of our children, a man known to have been a child molester does not qualify for a responsible position in the congregation.
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In view of the above statements, congregation elders can do little next to nothing to aid and abet law-enforcement by collecting information from their congregants. At best, they can route information to the respective authorities, but ultimately, an eyewitness has to cooperate with the authorities and corroborate their observations in a court of law. In all practicality, it shows initiative on the part of an eyewitness to contact the authorities from the onset.
The only other way an elder would know anything is if a molester voluntarily confesses something to an elder.
The circumstances in this recent lawsuit falls somewhere in-between these two sources as a means to gather information. I looked up the laws relative to mandatory reporting in the state of California in 1993 and came up with the following:
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=evid
Article 8. Clergy Penitent Privileges ......................... 1030-1034
1030. As used in this article, a "member of the clergy" means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization.
1031. As used in this article, "penitent" means a person who has made a penitential communication to a member of the clergy.
1032. As used in this article, "penitential communication" means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.
1033. Subject to Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege.
1034. Subject to Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege.
I could be wrong, but section 1033 and 1034 seem to allow for a third or fourth member to the "party" if relevant to "penitential communication."
Excerpts from court documents:
Filed April 27, 2012
WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION TO ALLEGE PUNITIVE DAMAGES
“She also ignores California's statutorily-imposed obligation of a clergyman to preserve the confidentiality of information provided by a penitent. Clearly, Dr. Salter's biased and factually unsupported declaration is no justification for allowing Plaintiff to claim punitive damages in this case.”
“That statutory provision, often referred to as the "Clergy-Penitent Privilege," creates an obligation on the part of clergymen to keep penitential communications confidential. While there are obvious exceptions to the Clergy-Penitent Privilege, it is the clergyman's duty to maintain the privilege of the penitent, unless and until the privilege is waived by the penitent.”
“Plaintiff criticizes Watchtower's letter for instructing elders to call Watchtower's Legal Department immediately upon learning of the abuse of a child. Plaintiff is apparently unaware that the Clergy-Penitent Privilege differs widely across the nation, making a standard that can be articulated to all elders across the nation impossible. For example, in Texas, the Texas Family Code section 261.101, mandates that clergy report all suspected child abuse regardless of the existence of a claim of clergy-penitent communication. Thus, Texas elders would be instructed by Watchtower's Legal Department to report all suspected abuse of children to the police no matter how they gained their information. In California, the duty of elders to report to the police depends upon the source of the information and the applicability of the Clergy-Penitent Privilege. Thus, the law of California recognizes and respects the clergy-penitent privilege. Plaintiffs criticism of the letter attached as Plaintiffs Ex. 1 ignores this law as she seeks to paint Plaintiffs Ex. 1 as a mere attempt to avoid civil liability. Plaintiffs critique is both contrary to law and out of sync with the true intent of the letter, which intent is obvious from its content.”
“The Problems with Dr. Salter”
“Dr. Salter's opinion invades the province of the Court. Without citing to a single statute, court decision, promulgated rule, or other source of standards, she opines that a duty existed in 1993-1995 to notify various persons and entities about a confirmed abuser in a congregation's midst.”
“The opinion of Plaintiffs is invalid for another reason. Her opinion fails to meet the California standards for acceptance of expert opinions. Cal. Evid. Code section 801. The foundation of her opinion is inadequate as a matter of law.”
“However, it remains the province of the legislature and the courts, not psychologists, to determine whether a duty arises.”
“The cases offered by Plaintiff to support her claim that Defendants are liable to Plaintiff because they failed to warn or report their "knowledge of the employee or volunteer's history of sexual abuse and failed to warn or protect children exposed to the . abuser" (Plaintiffs Memorandum of Law, p. 6, part II A) are inapplicable to the facts of this case. They impose liability on a principal whose employee (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828), spouse (Pamela L . v. Farmer (1980) 112 Cal.App.3d 206), or appointed volunteer agent-Boy S court leader (Juarez v. Boy Scouts of America (2000) 8 1 Cal . App.4th 6 377) were known to the defendants in those cases to have abused children in the past. None involved a mere congregation member. None involved a person about whom an allegation was unconfirmed or involved a confession by the perpetrator, given in the presence of the accuser and the accuser 's mother, that he had "briefly and inadvertently" touched her breast over her clothing.”
“None involved a mere congregation member.”
“For Plaintiffs expert to be allowed to provide her opinion that churches must report "confirmed" child abuse to parents, other adults, and public officials, the Court must rule that her opinion is now the law in California, and the California Clergy-Penitent Privilege is no longer good law.”
“Dr. Salter's opinion is further objectionable since she failed to qualify to provide an expert opinion about the status of the law concerning reporting alleged child abuse to authorities or to others in 1993. Further, she did not provide an expert opinion on the propriety of clergy violating the clergy-penitent privilege in order to disseminate information about what the penitent confessed to the elders.”
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I haven't completely read all of the court documents, but an item of interest is this: “Were the elders protected from litigation under California Clergy-Penitent Privilege? Was a clear explanation of the California statute delivered to the jury?”
Clergy-Penitent Privilege can be abused. In a lawsuit involving the Church of Jesus Christ of Latter-day Saints and the American Boy Scouts, Timur Dykes acknowledged in early 1983 that he had abused 17 Boy Scouts. That's a far cry in terms of severity from the lawsuit currently underway attacking Jehovah's Witnesses.
In this incident, the Clergy-Penitent Privilege exercised by elders in 1993 was principled even if any legal technicalities conflict with their actions.
http://usnews.msnbc.msn.com/_news/2012/06/15/12225753-jehovahs-witnesses-ordered-to-pay-more-than-20-million-to-woman-who-said-she-was-sexually-abused?lite
"The ultimate goal of the lawsuit was to have a change in policy, to be able to ID these people, child molesters, to the congregation to protect children," Conti told msnbc.com . "Secondarily, to have silent ones come forward and tell their stories and to bring to light that overall issue of violence and the hush-hush policy."
If the Clergy-Penitent Privilege is destroyed on behalf of Jehovah's Witnesses, they'll have no means to “ID these people” through the process of confession.
Mandatory reporting where Clergy-Penitent Privilege has no application: If a suspected abuser has confessed in counseling to the pastor about abusing a minor, the pastor is obligated under as a “mandated reporter” to contact the proper civil authorities. The pastor should state that he/she is a “mandated reporter” to the person seeking counseling or confession prior to the start of the initial session. Pastoral privilege may or may not exist in the event of prosecution; that is, the pastor cannot legally be compelled to testify, but this doesn't mean he won't.
In other words, “Everything you say can and will be used against you in a court of law.”
It's highly unlikely anyone will confess to wrongdoing if an initial session is tantamount to a police interview. Any strangulation on a perpetrator's right to confess in confidence won't aid and abet Jehovah's Witnesses or the legal system because the arrangement won't exist.
This is what happened in the case of Candace Conti,
The legal system doesn't always step in to efficiently protect society. Johnathan Kendrick was convicted of a misdemeanor 1994 and he wasn't even placed on the California sex-offender registry let alone imprisoned. All the authorities did was slap him with a small fine.
California has had a sex-offender registry since 1947. The government did absolutely nothing to inform anyone of anything. Law enforcement did absolutely nothing to monitor this man's whereabouts, let alone restrict his activities.
The bottom line, is the government didn't consider him to be a dangerous sex-offender. Why should the elders be implicated and condemned in a lawsuit if the elder's opinion was synchronous with that of law enforcement?
All things considered, Jehovah's Witnesses seem to have an effective child protection policy. An internal policy, a Christian arrangement that's tolerant to these individuals rights to constitutional religious freedom while depending on the secular authorities to act when needed.
As for the current policy, it seems that a premise exists to address any and all associated individuals involved child-protection in a fair and balanced standpoint.
http://www.jw-media.org/gbl/20071121.htm
We do not condone or protect child molesters. Our elders expel unrepentant sinners who commit this crime.
Congregation elders comply with child abuse reporting laws. (Mark 12:17; Romans 13:1) We do not silence victims. Our members have an absolute right to report this horrible crime to the authorities.
From many perspectives, congregation elders gave Jonathan Kendrick the benefit of the doubt, by not reporting the activities of his family confessed in good-faith only to get stabbed in back.
It appears the Watchtower Society's “secrecy policy” was rendered obsolete in many states prior to it's scathing criticism.