Conti Appeal Preview - Oral Argument Jan 14

by Chaserious 111 Replies latest watchtower child-abuse

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  DATA-DOG

  NG, 

  Your question of whether or not the Elder's video specifically said," Don't go to the Doctor..", tells me that you are not understanding what "Special Relationship" means.  

  It's almost as if you think the WTBTS would be off the hook as long as they do not forbid going to a doctor, outright.

   Now, you are correct about the WTBTS not wanting to be responsible for giving out advice that fails. Sadly, that is exactly what they have done, time and time again. They just hide behind the idea that YOU failed to apply their counsel correctly. After all, THEY SPEAK FOR GOD, so that must be the case! 

  Can you put yourself in the shoes of a JW publisher for a moment? They believe that the GB represent GOD and speak for him. The imperfections of the GB is a mere footnote.

  Imagine the undue influence the WTBTS has over 8 million people. What the GB expressly forbid in word or print, isn't half as important as what they hint at, as far as advice and consequences for disobedience.

  Are you picking up what I'm laying down?? Not to beat a dead horse, but..."SPECIAL RELATIONSHIP."

  
  

  DD
• 

  Chaserious

  I am just looking at it from a point of view of common sense. Common sense tells me that; IF the elders believed in any way that Kendrick was going to re-offend, they would have put in place some other provisions where this would be minimized.  

  Putting the law aside, and just looking at this from a common-sense point of view, anyone who has been a JW knows that the elders will do whatever those higher up in the chain of command tell them to do, whether that's the CO, letters from the branch, WT legal, etc.  So whether or not they believed he was going to re-offend, I think that the most reasonable assumption is that they would do whatever they were directed to do. 

  Who in their right mind would WILLINGLY allow such a danger to exist? (same goes for the WTS) 

  People who are trying not to bring shame on their organization and are trying to minimize liability - that's who.  The Catholic Church willingly allowed dangers to exist when they transferred pedophile priests from parish to unsuspecting parish, didn't they?  What is the purpose of letters to the bodies of elders telling them to call Watchtower legal when child abuse occurs?  Is it really to protect anyone besides the Watchtower?  They don't have to call legal in cases of fornication or drug abuse, do they?  A reasonable conclusion (and I think the one that was arrived at in this case) is that this process was in place to attempt to protect the organization from bad publicity and legal liability, with any concern for protecting children a distant  afterthought, even though headquarters knew or should have known that its policy was not in the best interests of the children. 

  Also, while it is not contained in any official letter, there are numerous anecdotal accounts indicating that at least in the past, elders were told to discourage parents in such a situation from going to the authorities, without forbidding it or putting it in writing (out of fear of liability I'm sure).  Again, anyone who has been a part of this organization knows that people will follow what the elders recommend a majority of the time. 

  But you and I and any reasonable person can surely see that this was not deliberate. 

  I don't think that any elders or the WTS wanted any child to be molested, and I think everybody acknowledges that, even those posters who may be a little over the top with the pedophile rhetoric. But getting back to the law, what the jury found (and I think appropriately), is not that it was "deliberate" as you say, but that it disregarded a significant risk of harm, and put concern for its image above legitimate safety measures. 

  Just one question: when you said that the jury found that “the Watchtower was aware of the probable dangerous consequences of its actions, but deliberately and willfully failed to avoid those consequences”   can you explain what that means in practical terms? And what was the evidence of that if you can remember. 

  This is very close to the legal definition for recklessness.  It means that you aren't trying to cause harm, but you should know that what you are doing is dangerous, to the point that it would be fair for a jury to conclude that you don't care very much if someone is hurt. If you accidentally get into a collision while doing 70 MPH in a 65 MPH zone, that is not going to support punitive damages (absent some other factor).  If you are doing 110 MPH, on the other hand, there is a good chance you could be exposed to punitive damages, as even if you didn't want to hurt anyone, you deliberately ignored the risk.  Or firing a gun without looking where you are shooting.  These analogies don't exactly hold up because they deal with affirmatively causing harm, whereas the Conti case involved failing to prevent harm, which is unusual in the law.  The evidence is that when the elders informed Watchtower legal about Kendrick and his stepdaughter, it instructed the elders to keep the information about him secret, in accordance with its national policy. 

  
  
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  Nitty-Gritty

  @ Chaserious

  Thank you or your reply and for the explaining the definition of legal “recklessness.”

  Putting the law aside, and just looking at this from a common-sense point of view, anyone who has been a JW knows that the elders will do whatever those higher up in the chain of command tell them to do, whether that's the CO, letters from the branch, WT legal, etc.  So whether or not they believed he was going to re-offend, I think that the most reasonable assumption is that they would do whatever they were directed to do

  
  

  Yes, I know the elders would do as they are directed by the WTS, but if the elders were worried, wouldn’t this have come across in their letter to the WTS?  I have not seen the correspondence between the Fremont cong and the WTS but it seems like the WTS had to base their decision on something (since they were not personally involved with the situation). Is it possible that the WTS also believed things were taken care of?

  People who are trying not to bring shame on their organization and are trying to minimize liability - that's who.

  That’s what I don’t get. How does one “minimize liability" by not reporting cases of child molestation? Please explain that to me in legal terms, as a lawyer.

    What is the purpose of letters to the bodies of elders telling them to call Watchtower legal when child abuse occurs?  Is it really to protect anyone besides the Watchtower?  They don't have to call legal in cases of fornication or drug abuse, do they?
  

  From reading the new instructions to the BOE (2012) I would say that the purpose of that would be to protect the congregation, so that if anything goes wrong, the WTS is liable and not the congregation because it had merely followed the directions of the WTS. So any responsibility of future cases of child molestation rests squarely with the WTS. My thoughts anyway.

   A reasonable conclusion (and I think the one that was arrived at in this case) is that this process was in place to attempt to protect the organization from bad publicity and legal liability, with any concern for protecting children a distant  afterthought, even though headquarters knew or should have known that its policy was not in the best interests of the children.
  

  .....it disregarded a significant risk of harm, and put concern for its image above legitimate safety measures.

  I know what you are saying here, but I don’t understand how telling others in the congregation about a pedophile in their midst (the safety measure) would have been bad for WTS image? I believe most members of the congregation are aware that there are some among them who bring reproach to the Witnesses (ranging from sins such as fornication and adultery to crimes such as theft and murder. There was a “brother” who ran a brothel in one European country).  Elders do not stop anyone from going to the police if that someone thinks a crime has been committed. For instance if a “brother” broke into my home I would call the police. It goes without saying. Then I would tell the elders. So I honestly do not understand why not informing that there is a pedophile in the congregation has anything to do with image and bad publicity. (Unless there is another reason).  Perhaps you can explain that to me.

  I apologize for asking all these questions, and I appreciate your patience in answering.
  

   

   
• 

  Teary Oberon

  and just looking at this from a common-sense point of view, anyone who has been a JW knows that the elders will do whatever those higher up in the chain of command tell them to do

  I believe that Elders and Ministerial Servants are considered employees of Watchtower by Law, so this isn't really something that is questioned. 
  

  A reasonable conclusion (and I think the one that was arrived at in this case) is that this process was in place to attempt to protect the organization from bad publicity and legal liability, with any concern for protecting children a distant afterthought

  A conclusion is not reasonable when there is no support for it. The most we could hope to reasonably support is the liability claim, but everything else is merely assumption and speculation based on no evidence. I would not say that they intended to protect children, but I would also not say that they didn't intend to protect children. I simply can't read minds or personal intentions.
  

  there are numerous anecdotal accounts

  What is 0 x 100? Still 0. Anecdotal accounts are not to be used when making general conclusions. Their value is next to nothing. But what we do know for a fact is that at least in this case, nobody was discouraged from reporting to police; and indeed, the parents of the first teenager did report to police after meeting with the elders, though they never told anybody about it. And if memory serves correct, the Boer case had similar accusations of Elders warning not to report to police, but the appeals judge threw those claims out and sided with Watchtower. 
  

  These analogies don't exactly hold up because they deal with affirmatively causing harm

  You acknowledge that your examples are irrelevant to the case at hand yet you go with them anyways. That is no bueno. Intentional causing of confusion in the mind of the lay reader. The more relevant Principle of Law (that you yourself even hint at) is:
  

  There exists no general duty to protect others from harm, absent a clear special relationship.
  

  "There does not exist a general obligation to protect others from harm not created by the actor. The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.  In other words, the mere fact that one individual knows that a third party is or could be dangerous to others does not make that individual responsible for controlling the third party or protecting others from the danger. The creation of an amorphous common law duty on the part of a church or other voluntary organization requiring it to protect its members from each other would give rise to both unlimited liability and liability out of all proportion to culpability."

  I myself haven't been a Witness for years, and I still find the Conti ruling terrifying, as should you, being a Man of Law yourself. 
  
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  Chaserious

  I believe that Elders and Ministerial Servants are considered employees of Watchtower by Law.

  Absolutely not.  What makes you think that?  A volunteer does not equal an employee. 

  A conclusion is not reasonable when there is no support for it. The most we could hope to reasonably support is the liability claim, but everything else is merely assumption and speculation based on no evidence. I would not say that they intended to protect children, but I would also not say that they didn't intend to protect children. I simply can't read minds or personal intentions.
  

  Well, the trial judge believed there was enough evidence that they disregarded the risk of harm to send punitive damages to the jury, and the jury accepted Rick Simons' argument that the WTS was at least indifferent as to preventing abuse.  I think you have it backwards; you say the most we can reasonably hope to support is the liability claim.  I think that there is a good chance that the entire verdict is tossed because the appeals court finds no special relationship existed as a matter of law.  On the other hand, I would be surprised if the verdict is allowed to stand but punitive damages alone gets reversed.  I think if a duty is found to exist there is enough evidence to support the punitive damages award; regardless of whether or not the appeal court thinks the jury got it right. 

  Anecdotal accounts are not to be used when making general conclusions. Their value is next to nothing. But what we do know for a fact is that at least in this case, nobody was discouraged from reporting to police; and indeed, the parents of the first teenager did report to police after meeting with the elders, though they never told anybody about it. And if memory serves correct, the Boer case had similar accusations of Elders warning not to report to police, but the appeals judge threw those claims out and sided with Watchtower. 

  I realize that anecdotal evidence is not relevant to this or any other case.  However, I was responding to another poster who seemed to want to discuss moral culpability, rather than legal.  And based on what has been reported and my own experience in the organization, I don't doubt for a second that elders have been told by headquarters to discourage victim reporting without explicitly saying not to.  There is a reason that the instructions are to call legal on the phone, and not to write or email.  At least in the past, their fear of "bringing reproach on Jehovah's organization" practically rose to the level of being a fetish. 

  You acknowledge that your examples are irrelevant to the case at hand yet you go with them anyways. That is no bueno. Intentional causing of confusion in the mind of the lay reader. The more relevant Principle of Law (that you yourself even hint at) is:
  There exists no general duty to protect others from harm, absent a clear special relationship.

  I was asked to explain the standard for punitive damages and I did so, acknowledging (as I did in my OP) that damages for failure to act is unusual and has only been applied historically in limited circumstances.  If anyone is causing confusion, it is you.  A judge in a court of law found that in this case, there IS a duty to protect others from harm.  Unless and until that is overturned by an appeals court, that is the law.  There may well be examples of punitive damages being awarded in a failure to warn case, but I am not going to research that issue to answer a question on a forum.  My examples answered the question that someone raised and didn't mislead anyone. 

  I myself haven't been a Witness for years, and I still find the Conti ruling terrifying, as should you, being a Man of Law yourself. 

  I agree that it will be difficult to formulate a general rule upholding the verdict that will not have unintended and unfair consequences when applied to other situations.  If such a rule can be formulated, I will leave that to the appeals justices, who I am sure are smarter and more experienced than I am.  As I said, I wouldn't be surprised if the verdict is overturned on the basis of no special relationship.  But putting legal principles aside, I believe that the WTS deserves to eat this one.  It is unconscionable to teach that this is the one true religion, the congregation is the safest place there is, JWs are the most moral and trustworthy people and everyone else is bad association, and then to keep your lips sealed and eyes closed when you know there is a predator loose in the small group who God has allegedly declared to be the only good and approved association. 
  
  
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  Teary Oberon

  Absolutely not.  What makes you think that?  A volunteer does not equal an employee. 

  My apologies then -- sometimes I get my terminology mixed up. The correct term would probably be "agent." Historically the courts have held that Elders and Ministerial Servants count as "agents" of Watchtower, but not anyone lower. Many Plaintiffs have tried to argue that Pioneers and lay members are also agents in an attempt to stretch liability, but the argument hasn't really been well accepted. That was my point. 

  Well, the trial judge believed there was enough evidence that they disregarded the risk of harm to send punitive damages to the jury, and the jury accepted Rick Simons' argument that the WTS was at least indifferent as to preventing abuse. 

  I think you have it confused. If there is no special relationship between Watchtower and Conti, then that means there is no duty of care. Without a duty of care, and without any direct harm caused to Plaintiff, there are no grounds for any other claims against Watchtower period, and the entire case must be scrapped. It would be chocked up to Judge's error more than Jury's, because the Jury was given bad instructions (and I also believe that the Judge is the one who determines whether a duty of care exists, so it would be even more on his shoulders). I quote this following case a lot, because it is so similar to Conti: 

  "When the plaintiff Bryan R. was an adolescent he was molested by an adult member of his Jehovah’s Witness congregation, the defendant Baker. Some years before Baker had molested another child in the community. At the time, he was disciplined by the elders for his misdeeds, but later was permitted to resume his activities as an ordinary member within the congegation. Bryan alleged that the church and its elders were liable to him for negligence and breach of fiduciary duty, arguing that manner in which the elders dealt with Baker’s earlier transgressions and the elders’ failure to warn him about Baker made it possible for Baker to obtain the plaintiff’s trust and to have the opportunity to assault him. The plaintiff’s claims against the church and the elders were dismissed. The court held there was no duty to protect members of the congregation from the wrongdoing of others."  Bryan R. v. Watch Tower Bible and Tract Society of New York (1999) at para 27-28

  And based on what has been reported and my own experience in the organization, I don't doubt for a second that elders have been told by headquarters to discourage victim reporting without explicitly saying not to.

  That is all a lovely opinion, but you have no evidence for it, and so I do not give it any weight, just as a court would give it no weight. 

  There is a reason that the instructions are to call legal on the phone, and not to write or email.

  Yes, and those reasons can still include protecting children while simultaneously making smart decisions in a volatile and dangerous legal situation, as child abuse cases always are. As a Man of Law, you of all people should understand and appreciate Watchtower instructing Elders, who have little to no legal knowledge whatsoever, to call people experienced in Law before acting. In any case, your assumptions are unwarranted.

  A judge in a court of law found that in this case, there IS a duty to protect others from harm.

  A trial level Judge in an isolated, non-precedent setting case cannot overrule legal principles that are hundreds of years old and that have been affirmed by numerous Appellate and Supreme Court cases. That is the entire reason for the appeal, and that is why the ruling will likely be overturned. The trial Judge was wrong, period. Even you yourself seem to admit it grudgingly, calling such a ruling "unusual," meaning against the norm, meaning contradictory to other rulings. 

  But putting legal principles aside, I believe that the WTS deserves to eat this one.

  That is well and good, but remember that Law should always be objective and blind. Even if you have some sort of serious grudge against Watchtower, justified or not, that should have no bearing whatsoever on the correct application of Law in this particular and specific case. Work on separating your very sharp legal mind from your emotions. 

  
  

  
  

  
  
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  Trailer Park Pioneer

  Splash:   We had five to seven (Five one year and two the next year) people kill themselves even when the Elders knew they were in a very bad way, very unstable!.  Our Narcissistic Personality Disorder Elder was happy when the man he helped push of the edge died!  He said "He's got a chance at living now, before he was going to be destroyed and his parents are better off without some crazy bipolar screwing up their lives!   He had this kid disfellowshiped while trying to protect his pedophile friend, that's how sick these godless men are!  Elder Paedophile had a friend and Narcissistic-Personality-Disorder Elder was his name.  Elder N.P.D. thought this mentally ill kid was a worse threat than a child molester. The kid, what were his sins? He was smoking a cigar and pulling a slot machine lever at the local Indian Casino while Elder Paedophile

   I know my friend Dave complained of three people who killed themselves in his Congo, three or four my way and none of the Elders had the JW "Suicidal Publishers" get any real help! Nobody called the police or got any psychiatric help out of fear of hurting "Jehovah's Name!".  People come to JWN and lie, when they first brought out their magazines on Depression and Sexual Abuse, the Watchtower opened Pandora's Box wishing they had never talked about this subject because it made the Kingdom Halls less perfect by claiming we had problems in our Spiritual Paradise.  
  

  
  

  
  

  
  

  Now looking back I see we never had a Paradise, it was a mental vice-grip keeping us from learning real information, making depressed souls worse while empowering wicked men and giving them total access over weak men and women.  The Kingdom Hall is filled with Bullies, there are bullies everywhere in this Organization and I hope Candace is the David of the Bible and Watchtower is Goliath and get's clobbered!

  
  

  
  

  Chase, my friend who is involved in the biggest trial our way said pretty much what you said, they will look for errors and see if her judge made a mistake. Why can't Jehovah punish them by putting it in to the hearts of the Appellate Court to really slam them by adding another $50 Million, Jehovah needs to punish these wicked Psychopaths at Bethel to stop the insanity!
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  Chaserious

  That is well and good, but remember that Law should always be objective and blind. Even if you have some sort of serious grudge against Watchtower, justified or not, that should have no bearing whatsoever on the correct application of Law in this particular and specific case. Work on separating your very sharp legal mind from your emotions. 

  Oh please. Thanks for the lesson about established legal principles and what I should work on. Get over yourself with the justice is blind shtick and I should know better. This is an internet forum, and I'm free to express my opinion on both the legal merits of the case and the moral culpability of the Watchtower organization. You are responding to my view on the latter. There are all kinds of reprehensible behavior that the law does not usually punish. It doesn't mean that just because I'm an attorney I can't hope for an outcome that I believe to be just from a normative perspective, regardless of established law.

  
  My opinion is based on what happened in this case, not a general grievance with the Watchtower organization or my "emotions."  I have commented numerous times on this forum that I think plaintiffs who sue for shunning should lose, so I am certainly not forming my opinion just because Watchtower is a defendant.

  
  To illustrate my point about reprehensible behavior, I point to the story of David Cash, Jr.  Google his name if you don't know the story. He did nothing while his friend raped and murdered a little girl in a casino bathroom.  There was no law under which he could be charged under the "established legal principles" that you refer to. Just because someone is an attorney doesn't mean they can't recognize that something bad was done and support a novel theory to charge him if one existed, does it?  Or do attorneys have to get on a soapbox and say you can't do anything to this guy, because there has never been a duty to act ever since the English common law, and so on.
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  Splash

  Trailer Park Pioneer. What turns my stomach the most, is the WT recognised the mental health issues years ago, but have never done anything about it.

  *** g04 3/8 p. 29 Watching the World ***
  Some reasons suggested for the rise in workplace stress, anxiety, and depression include an older work force that finds it more difficult to keep up, heavier work loads, and modern technology that keeps employees connected to their work, resulting in a “never-ending workday.” According to Dr. Richard Earle, of Toronto’s Canadian Institute of Stress, employers can help “by educating managers on how to identify and deal with psychological illnesses and by providing employer-assistance programs and other services.”

  This describes WT perfectly. The older ones still go out in all weathers, are bombarded with "do more" and given examples of one legged cripples scooting their wheelchairs across a desert for three days to attend an assembly.

  
  There is absolutely no practical help or assistance for such older ones. Their promised dreams are shattered, their lives all but gone, their daily living is hard.
  WT is 'Psychological Illnesses R Us'.

  
  

  Splash
  
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  Chaserious

  NG: I neglected to respond to this

  
  

  That’s what I don’t get. How does one “minimize liability" by not reporting cases of child molestation? Please explain that to me in legal terms, as a lawyer.

  If you look at the 1989 letter introduced at trial, it is obviously about protecting the organization from legal liability. It goes on and on about how litigious our society is and how opposers will want to enforce what they perceive as their "rights" - with "rights" always in scare quotes, to dismiss the idea that they actually exist.  And then it went on to say that this is why elders have to keep judicial proceedings and related matters confidential. They were concerned about being sued for defamation and the like by people who were disgrunted over judicial matters.

  In retrospect, that was not the best strategy in terms of shielding the organization and congregations from liability, but there was certainly enough there for Simons to argue that minimizing liability was a motive in forming their policy. He used the letter -effectively, I think - to rebut the argument that the confidentiality policy served a doctrinal purpose, and instead to argue that it served a financial one.