I am well aware that a lawsuit cannot be brought based on the requirments of a Statute that a third party must report a crime. I think the Supremes have allowed a suit using a statute involving third parties but only in a limited sense.
However, the Berry case relied more heavily on the torts and as well as the statute. In the writ or Statement of Claim, the Berry's lawyers said what happened to the Berry ladies was considered a tort of "common negligence" for not reporting after the elders found out about the abuse.
Also the lawyers tried to use fiducary duty as a way of saying that WTS elders were a special group who the Berry girls had to rely on. Thus, when Paul Berry did his nasty business, the elders had a duty to report the abuse because they have a special relationship with the Berry girls (this would be similar to lawyers and doctors).
I think they also used other torts as well if memory serves.
The Supreme Court in Maine heard a similar case called Brian R. v. Watchtower. The "Tower" won on summary judgement because Brian R.'s lawyer failed to prove a fiducary duty existed between the elders (or agents of the Watchtower) and Brian. The court ruled that Brian R. can;t just say a fiducary duty existed. Brian R. actually had to provide examples to prove his case.
As for the Berry case, the Judge Groff ruled in summary judgement that a tort of common negligence" existed in the Berry v. Watchtower case based on certain state case law. He also ruled that it would take very little effort for the elders to report the abuse and should ought to have in this case.
Oddly, the Judge ruled that not enough proof was provided that a fiducary duty existed. I was kinda shocked especially after all the effort people like Bill Bowen and Barb put into the writ with counsel.
Where the case went south was for some god unknown reason to man kind, Judge Groff ruled that a rule in testifying in front of a court of law involving clerical privilige applied to the elders with respect to reporting the abuse. As such, Groff ruled in a second summary judgement for the Tower and the case went to the N.H. Supreme Court.
Here in Canada, in cases such as Regina v. C.T.C and Regina v. J.P.P., Judges have ruled that elders do not have clerical privilge. Maybe one day the USA Judges will wake up and smell the coffee.
For your information I have been in touch with the Clerk at the Supreme Court in N.H.. The court has a guideline for written decisions on cases to be finished within 6 months. Look for this Berry case out before April, 2005.
Also keep in mind that N.H. supreme court will be deciding the issue of statute of limitations in this case as the Tower lawyers believe that the Berry girls waited to long to launch a lawsuit. Groff ruled that the Berry girls did not know the elders were aware of the abuse until many years later when the Berry girls mother finally told Holly and Heather that she had went to the elders and the elders advice was to go home and be a good wife.
You can keep track of when the decision comes out by going to the following url link.
http://www.courts.state.nh.us/supreme/opinions/index.htm
Personnally I am not very confident about this case anymore. This tort of common law negligence that Groff found was shot down in flames in Minnesota both at the court and supreme court level and I have a sneaky feeling it is going to happen in N.H. as well.
Take care and lets hope for the best that this case makes it to the court house in front of a very sympathic jury..
hawk