Candace Conti v Watchtower Society | September 2013 | Watchtower's Reply Brief | A136641

by jwleaks 25 Replies latest watchtower child-abuse

• 

  zound

  An interesting part from the VS Fremont Congregation brief.

  In the instant action, the court below took the unprecedented step of holding that the Appellants had a duty to protect the Plaintiff by warning the congregation members about Kendrick's molestation of his stepdaughter. However, that the court did not take the required next step and define how the Defendants must give that warning.

  Would it be weekly, monthly, semi-annually, annually? Would the Congregation have to post a notice in its meeting place? Does the Congregation have to take attendance to make sure that all members were present for the warning? When non-members attend, do they have to be warned, too? When people move into the area and begin attending meetings, do they have to be warned? If the allegation is denied, must the congregation still warn? Must the congregation warn members of neighboring congregations that the accused molester might visit? Does the Congregation have the duty to warn non-members who may visit Kendricks home? Does that duty to warn last until the death of the accused? These are vexing questions for which neither Plaintiff nor the lower court has any answers. Page 36.

  The answer of course is - Wait on Jehovah.

  Indeed the trial court allowed the jury to speculate that the Congregation and Watchtower had a duty to protect Plaintiff from sexual abuse by Kendrick 24 hours a day, 7 days a week, 365 days a year.

  Exaggerate much?

  The part directly after that is also interesting - they bring up the unprecedented ruling of the court that the organisation has a 'duty of care', that may affect other religious organisations, and say that this ruling would be a burden on 'society' (when have JW's ever given a damn about 'society'?)

  Doing so would also likely result in financial ruin for any organisation allowing children to participate in their activities, resulting in less participation by families in religious activities. This should not be a burden society should be forced to bear in an attempt to protect children when other reasonable and effective measures are available.
• 

  cognizant dissident

  I just finished readig the appellants brief.

  As a young girl I was often dropped at the hall by my parents or invited and picked up by other congregation members to go to meetings or out in service, coffee, social outings, etc. Often there was no pre-made plans, but everyone knew someone would take their kid out and bring them home. The degree of trust for that was as it is for close family and no one worried about child molesters anymore than they suspected child molestors in their own family.

  At times, someone would invite me to go in their car group. At other times, even as an adult, I have been specifically assigned by the service group elder, to go in a car group or work with specific people, including alone with brothers.

  So in my opinion, the crux of the case hinges on whether or not they can actually prove that an elder who knew of the child abuse history of Kendrick specifically assiged the girl to work in a group with him. If they cannot prove that, the defense could just as easily say that the parents and the girl and Kendric made their own arrrangements without any direction from the service group elder. As we all know, both of those scenarios were very commonplace depending upon the particular servant leading the group and how controlling they were.

  I'm not hopeful for this case, because the WTBTS brought up some very important points of law in their brief. For one, the onus was on the plaintiff to prove that she was assigned by an elder to work with Kendrick in the first trial, and while I did not read that transcript, according to the WTBTS's brief it was not even brought up in that first trial or it was not a key argument in their case. You are not allowed to bring up new arguments or introduce new evidence in an appeal. So if they did not prove she was specifically assigned to work with a child molester in the first trial, WTBTS may win on that point

  I also thought WTBTS had a good legal point about not being held retroactively to a "duty to report" law that did not exist at the time of the abuse. Even if there was a "duty to report" law in effect at the time, the duty to report is to legal authorities, not to the public, neighbours and fellow church goers. Even the legal authorites still struggle with the duty versus legality of warning neighbours of child molestors at this time and do not always do so, althought that situation is improving somewhat in Canada.

  Since appeals have to be based upon points of law that were not followed or interpreted correctly, WTBTS also had an interesting point about the punitive damages being excessive and not allowable by law, because the jurors or judge openly admittted that they were for other unknown victims who may have been harmed.

  It will be very interesting to see the outcome of this case. I think if the appeal is heard by a judge only and not allowed to be swayed by the emotional response of a jury sympathetic to victims, that the WTBTS may win purely on points of law.
• 

  AnnOMaly

  Hi Cog (good to see you around again, btw :-) ).

  There was testimony apart from Candace's where Kendrick was seen with Candace out in FS on several occasions. The court was also told by witnesses how FS was routinely arranged. If an elder normally presides over a FS group and if one elder (Service Overseer) presides over all the FS arrangements, then they are responsible for who teams up with whom - especially since they already knew that Kendrick had molested another girl, they claimed to have told him not to have close contact with the congregation's children, and that they had been keeping a close eye on him.

  The 'duty to report' issue is a red herring. If memory serves, the jury was asked to disregard it. There had been some confusion over whether clergy were mandated to report to authorities in 1993 (brought up by an expert witness). This didn't apply here anyway. The molested step-daughter and her mother reported to the authorities themselves prior to Candace's abuse. The issue is (again relying on memory), once the elders and Watchtower had been notified that a child molester was in their midst, what did they do to ensure the congregation's children would be protected during congregation activities? It was shown that they did next-to-nothing.

  I think the Conti side is on firmer ground than the WTS's side IMHO. But we'll see.

  ----

  Thanks for providing the documents, jwleaks.
• 

  AnnOMaly

  If memory serves, the jury was asked to disregard it.

  Found it. The Respondent's Opening Brief (June 3, 2013) already dealt with the 'duty to report' contention. It pointed out that, if there was an error, it was Freemont Congregation's fault because they didn't object to the (confusing) testimony being allowed to remain in evidence at the time.

  Furthermore, the Congregation waived the error. Failure to timely object to evidence bars a party from challenging its admissibility on appeal. (Evid. Code, § 353; Fry v. Pro-Line Boats, Inc. (2008) 163 Cal.App.4th 970, 974.) Indeed, during colloquy concerning the defendants’ proffered instruction, the trial judge commented, “[I]f somebody had objected to the discussion about what the law was at that time, I would have granted it….” (9 RT 1022, italics added.) - p. 51.

  The Respondent sums up as follows:

  In any event, any error in admitting this testimony was rendered harmless by the instruction the judge ultimately gave. It charged that the mandatory reporting statute was irrelevant to the jurors’ determination of the case and they were not to consider it:

  Whether there was a statutory duty to report to lawful authorities a purported incident of child abuse…is a matter of law for determination by the trial Court. Your deliberations are to be based solely upon the evidence presented and instructions given without any consideration whatsoever as to whether there was any statutory duty to report ….” (9 RT 1057, 1058.)

  In effect, this instruction was a belated admonishment to the jury not to consider expert testimony (including Dr. Salter’s) on the mandatory reporting statute—and it was belated only because defendants failed to request it sooner. It effectively placed defendants in the same position they would have been in had they requested an admonishment at the time the testimony was given. They were entitled to no more. - p. 51-2.

  So it looks to me that the Freemont Congregation attorneys have ignored the Respondent's answer and are just repeating themselves, hoping their objection will stick. No precedent cases are cited at all in that section to counter the Respondent's argument.
• 

  DNCall

  Although the misfeasance argument raised in Rick Simon's Respondent's Brief was very strong in my opinion, I did wonder why he was raising it (for the first time as far as I can see) on appeal. I had read the trial transcripts and could only detect indirect testimony that would support misfeasance (i.e., elders assigning Candace to work with Kendrick in FS).

  It is possible that no elder ever assigned the two to work together. So often the person conducting field service meetings (elder or not) will ask if the publishers have made arrangements to work with other publishers. It was always my experience that chldren were not assigned partners, but it was left up to the adult publishers to determine which pairing of adults the children would work with. Most of the assigning that was done by the conductor involved those who didn't have pre-arrangements.

  On the other hand, perhaps one of the elders other than the three that testified at trial had assigned Candace to work with Kendrick. We don't know because it was not brought up at trial.

  Little wonder then, that Watchtower attacks the misfeasance argument in its Reply Brief.

  The larger issue, in my opinion, is that Watchtower's insistence that the responsibility of care rests primarily with the parents actually works against them. Such a position makes it all the more necessary for the parents to know about any child molester (convicted or not, repentant or not, one time or not) in their midst. Otherwise parents' care of their children is dangerously limited. A policy that withholds this vital information from them is willful and malicious. To say that this policy is scripturally-based is to grossly misrepresent Scripture.

  Here's hoping the appellate panel will discern what this case is really about (as the jury did) and, even without considering misfeasance, rule in Candace's favor.
• 

  Oubliette

  DNCall: The larger issue, in my opinion, is that Watchtower's insistence that the responsibility of care rests primarily with the parents actually works against them.

  Exactly, because as we all know, JWs believe they are in a "Spiritual Paradise" and have the expectation that they are completely safe among the "Brotherhood TM ."

  Bad things, like having a child molester among us, only happen in "False Religion" like that bad, bad, bad Catholic Church.

  To put it bluntly, the elders--having knowledge of Kendrick's past molestation--failed in their fiduciary responsibility to protect Candace. Even if they did NOT in fact assign her to work with Kendricks, they should have forbidden it when they became aware of it. From what I've read, at least one of the elders admitted they knew the two were going to "go out in service" together. That makes them culpable.

  Bad shepherd; bad, bad shepherd!
• 

  mind blown

  1994 - Candace Conti's molestation
  
  "Unknown to me, nine-year-old Candace Conti, began to be molested in 1994, the abuse continuing for two years. Her molester, Jonathan Kendrick, was a known child molester because he had been convicted by the authorities for the sexual abuse of another child two years earlier.
  
  Kendrick's sex offender record was also known by the elders of the Fremont California Congregation of Jehovah's Witnesses, but they did nothing to protect the congregation's children, including young Candace because they kept what they knew about him secret.
  
  They did remove Kendrick from his unpaid assistant-minister's position but no one in the congregation knew why. Here then was an example of elders following the church's national policy to keep sex abuse allegations secret. It was this silence that allowed Kendrick to abuse Candace. Because of the policy of secrecy that the church followed, information was withheld from the very people who could have prevented the abuse of Candace, and why her parents didn't know their friend and fellow congregant, Jonathan Kendrick, was a sexual predator".

  http://www.watchtowerdocuments.com/stories/megancandace.html
• 

  Vidiot

  DNCall - "...the Watchtower's insistence that the responsibility of care rests primarily with the parents actually works against them. Such a position makes it all the more necessary for the parents to know about any child molester (convicted or not, repentant or not, one time or not) in their midst. Otherwise parents' care of their children is dangerously limited..."

  If they try and argue that it's the parents' responsibility to keep their kids safe, they make themselves look bad by withholding vital information that would enable those parents to do so.

  If they try and argue that they weren't required to report at the time (early 90s), they make themselves look bad by seeming to only care about the letter of the law, rather than the well-being of their membership.

  If they try and argue that the perpetrator's previous actions were unknown, they make themselves look bad because their own carefully-kept records reveal this to be false.

  If they try and argue that once an offender has "repented", he is therefore no longer a danger of reoffending, they make themselves look bad by simply appearing woefully ill-informed about the sexual victimization of young people (and thusly stoopid).

  No matter how they try to spin this problem or what angle of approach they take, they can't make themselves not look bad.
• 

  besty

  No matter how they try to spin this problem or what angle of approach they take, they can't make themselves not look bad.

  I suspect they'd rather not shell out the damages and spin the 'victory', whatsover they have to say in the process - the alternative is to shell the damages and spin the loss.

  What would you prefer if you were the Watchtower?
• 

  Vidiot

  besty - "I suspect they'd rather not shell out the damages and spin the 'victory', whatsover they have to say in the process; the alternative is to shell the damages and spin the loss."

  Oh, yeah, I get that; the case was too public and high-profile to swallow their pride, accept the verdict, and cut a check; the apostate-thrown egg on their faces would have been completely intolerable.

  besty - "What would you prefer if you were the Watchtower?"

  Damned if they do and damned of they don't, huh?