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Divining Liability
Mark Donald
Texas Lawyer
05-05-2004
Talking about it seemed easier with Kimberlee Norris -- a woman, a lawyer, someone with whom they could entrust their deepest confidences, their fragile psyches.
Norris recounts that the two prospective clients told her strikingly similar stories of betrayal: Both women alleged that, as minors, they were members of the same Jehovah's Witnesses (JW) church when each was sexually assaulted by a different male congregant. After each reported the incident to church elders, as members are instructed to do to help cleanse the church of "sin," these lay ministers initiated an investigation. But these investigations, which applied an Old Testament burden of proof, enabled the same result -- the alleged perpetrator was protected, and the victim not believed. In fact, the women said elders told them that if they repeated the allegations to church members or secular authorities, they risked possible "disfellowshipping" -- excommunication from the church and God.
Norris found these allegations so "outrageous" she searched the Web site www.silentlambs.org, a group that assists the survivors of alleged JW abuse. She then contacted silentlambs' founder, Bill Bowen, a former church elder. Bowen says that the religion's organizational structure is so intricate, its apocalyptic vision so unconventional, "it takes up to six months to get a lawyer up to speed." In Norris, a self-described "preacher's kid" who had briefly attended Bible study sessions with Jehovah's Witnesses as a teenager, Bowen found someone ahead of the curve.
A partner in the Fort Worth, Texas, firm of Love & Norris, she had some success suing institutions for their negligent supervision of sexually abusive employees. After Bowen began referring prospective clients to her from silentlambs and she enhanced her "Internet presence," Norris was staggered by the number of calls she received from would-be plaintiffs -- so many that her practice now is exclusively dedicated to molestation litigation.
"I began evaluating these cases in July 2002 and talked to my 1,500th alleged victim on March 28, 2003," she says. "After I reached 2,000, I stopped counting."
Culling these numbers meant coming up with a rigid profile of what kind of case to take and where.
With a plethora of cases to choose from, Norris and partner Gregory S. Love could afford to be picky. Immediately they "tossed out 80 to 90 percent" of the JW cases, she says, because they did not fall within the "numerical statute of limitations."
In Texas, when conduct involves the sexual assault of a child, § 16.0045 of the Civil Practice and Remedies Code requires that a person must bring a suit for personal injuries no later than five years after the victim's 18th birthday, the date of majority.
Love & Norris also decided only to take cases where they could prove the church knew its member was a perpetrator and placed him in a position of authority anyway. "Sexual molestation cases are like dog bite cases," Norris says. "Every dog gets one bite, every perpetrator gets one kid. We only take extreme cases where molestation has been reported to the congregation and the organization gives him its blessing by giving him authority."
The firm has filed 57 suits across the country, including two in Texas, joint venturing the litigation with Houston's Fibich, Hampton & Leebron. One petition often reflects another, alleging that the church structure is so strictly hierarchical, its control over its elders and members so absolute, that each level of the JW organization, from top to bottom, should be treated as the "alter ego of the other."
Pleading causes of action that include vicarious liability and negligence, Love & Norris hopes to prove that the Watchtower Bible and Tract Society, the official name of the New York-based Jehovah's Witnesses organization, negligently performed the duty it had undertaken to investigate reports of child sexual abuse and discipline offenders.
Although Love & Norris filed cases in other states first, a case in Amarillo, Texas, has progressed the fastest. On March 29, Judge Patrick A. Pirtle of the 251st District Court in Potter County allowed Norris & Love's client to partially survive a motion for summary judgment in Amy B. v. Watchtower Bible and Tract Society of New York Inc., et al. (Amy B.'s last name has been protected by the court from disclosure.)
Marvin W. Jones, a shareholder in Amarillo's Sprouse Shrader Smith who represents the Jehovah's Witnesses organization at the congregational (Amarillo-Southwest and Dumas) and national (New York and Pennsylvania) levels, has offered a spirited defense against Amy B.'s suit. Collectively representing all the "Watchtower defendants," he wrote in a motion for summary judgment that his clients owed no duty to protect Amy B. from the crime of a congregant. Besides, he argued, the First Amendment also bars the suit.
Ronald T. Spriggs, an Amarillo solo, represents defendant Larry Kelley, who pleaded guilty to a charge of indecency with a child (Amy B.). In answering Amy B.'s petition, Spriggs filed a general denial on his client's behalf. But before Spriggs began his representation, Kelley filed a pro se answer to Amy B.'s civil suit in which he wrote "there were only two (2) instances of sexual contact" with the plaintiff.
Because Amy B. presents compelling factual, procedural and constitutional questions, its resolution likely will have repercussions in JW molestation litigation across the country. But the Watchtower defendants claim they should not be held liable for doing more than most churches would do under similar circumstances: making good-faith efforts to discipline congregants who succumbed to sin. With so much at stake, each side has, in essence, declared war on the other.
"It's going to be a long, bloody battle," Bowen says.
THE APOSTASY OF AMY B.
The facts alleged in the case of Amy B. appeared to fit within the parameters Norris and her litigation team wished to pursue. The plaintiff alleges the following in her Third Amended Petition: Kelley held the position of elder in the Jehovah's Witnesses congregation in Dumas until 1985 when he exploited that position by sexually abusing children in the congregation. When the Watchtower defendants learned what Kelley was doing, the Dumas congregation disciplined him, although the defendants "concealed the crime from law enforcement." Kelley later moved to an Amarillo congregation, which knew about his past, but kept the information confidential.
Spriggs denies his client held any church authority in Amarillo, but the plaintiff contends that Amarillo elders appointed Kelley to the position of "leading out for service," the door-to-door proselytizing for which Jehovah's Witnesses are most visible. An 8-year-old Amy B. did her "service" with Kelley, and was instructed to help his disabled wife at their home, as alleged in the petition. While there and in service, Amy B. testified in her deposition, Larry Kelley "sexually molested me ... on numerous occasions."
Amy B. "told the church elders about the abuse," says Hartley Hampton, a partner in Fibich, Hampton & Leebron who leads the plaintiff's Amarillo trial team. "She also reported it to the Amarillo Police Department." In 1992, police filed a case of indecency with a child related to Amy B. to which Kelley pleaded guilty. He was sentenced to "shock probation," getting a "taste of prison," Spriggs says, and then received a 10-year probated sentence.
In his pro se answer, Kelley also wrote, "When I committed my only offense in Dumas, indecency with a child, it was not with a young girl from the Dumas Congregation." He wrote that the day after the incident, he felt such "disgust for my behavior that I went to the Elders of the Dumas congregation ... and confessed what I had done."
Internal church documents that reflect the discipline taken against Kelley have become the subject of a hotly contested discovery battle in Amy B.'s civil suit. Norris believes these will support her client's claim of negligence against the congregations and vicarious liability against the higher church authority.
If church practice is any indication, she may have her proof.
After a Jehovah's Witness is accused of child abuse, "a judicial committee of three elders meets to consider the accusation," says Watchtower Society associate general counsel Mario F. Moreno who also is an elder. "According to scripture [Deuteronomy 19:15], for a person to be disciplined, there needs to be at least two witnesses to substantiate the charge or an admission of sin."
"I don't know many perpetrators who come with their own witness in tow," deadpans Norris. "And if they don't have a second witness and the perpetrator denies the accusation, from a disciplinary standpoint, that's the end of it." They are allowed unsupervised access to children, she contends, and are free to molest again.
If the perpetrator admits the sin and claims he is repentant, he will be "reproofed" -- placed on religious restriction during which he is prevented from taking a lead role in church matters, Moreno says. Although the congregation may announce that someone has been reproofed, he adds, "it won't tell who, and it won't tell why."
Again, an abuser is allowed to remain in the church, claims Norris, while the rest of the laity remains ignorant and unprotected.
Despite the two-witness rule, Moreno says, the Watchtower legal department instructs elders to report child abuse to law enforcement in states where clergy are legally obliged to do so. "Victims and their families also have the absolute right to report abuse to the authorities."
Norris counters that church practice is just the opposite. In each of the JW suits, her clients allege that Watchtower defendants enforce an "organization-wide policy preventing the reporting of child sexual abuse to law enforcement."
Section 261.101 of the Texas Family Code puts all persons including clergy under a legal duty to report child abuse to the authorities, and the failure to do so is a Class B misdemeanor under § 261.109. But in the case of Amy B., Hampton, her attorney, claims church elders made no such report. "They can say they report all they want to, but in this case, they didn't." Their silence, alleges Amy B. in a pre-trial motion, "allowed Kelley to abuse at least two children, including the Plaintiff."
The Watchtower defendants withheld, among other items, their judicial committee files, claiming in their Motion for a Protective Order that the First Amendment and the clergy-penitent privilege shield their disclosure. "If the court is required to look at scripture to see if a certain church procedure falls within the clergy privilege," says Watchtower attorney Jones, "the very act of looking into scripture to make that determination is a violation of the First Amendment."
But to be privileged under Rule 505 of the Texas Rules of Civil Evidence, disclosures must be made to clergy in their capacity as spiritual advisers. Since the Dumas and Amarillo judicial committees that adjudicated Kelley's sins would be "investigatory" and "confrontational," contends Amy B. in her Omnibus Motion to Compel, the committees were not acting as Kelley's spiritual adviser. More importantly, any privileged communication is trumped by § 261.202 of the Texas Family Code, which eliminates all privileges, other than attorney-client, in matters of child abuse.
After listening to arguments on Jan. 30, Judge Pirtle took the plaintiff's Omnibus Motion to Compel under advisement. But much of the motion was pre-empted by the defendant's subsequent Motion for Summary Judgment.
In it, the Watchtower defendants again raised the First Amendment as a bar to the litigation, but more to the point, claimed that under Texas law, they owed no duty to protect the plaintiff from the crimes of a fellow congregant.
Fact is, "this is a pretty conservative area of the law," Hampton says. "Several [JW] cases have been lost where one church member abuses another and there is no church action putting victim and perpetrator together. In those cases, there was no duty of care assumed by the church toward the victim. But they are different from our cases, hopefully."
The defendants' summary judgment motion cut to the core of the case: Did each of the Watchtower defendants owe a legal duty to protect the plaintiff? If there was no duty, there was no cause of action. If there was a duty, the Norris team would be one step closer to a jury, as well as a precedent it could argue throughout the country.
JUDGMENT DAY
It would be difficult enough imposing a duty on the Dumas and Amarillo congregations, where each allegedly had notice of Kelley's conduct and, through its actions, had put Kelley and Amy B. together. But the plaintiff's deep-pockets strategy seeks to hold the entire JW hierarchy liable under a theory of vicarious liability. To prove this, even for purposes of surviving summary judgment, meant offering facts that would show that the JW Governing Body in New York owed a duty to protect the plaintiff from the harm of a fellow congregant. The Governing Body exercises "absolute authority over every person and all matters in the organization," alleges Amy B. in her petition, "Through its hierarchical structure, the Watchtower Defendants assume responsibility for the protection and discipline of its membership."
"To question the Governing Body or even its appointed elders means possible disfellowshipping," says Bowen, who was himself disfellowshipped after he began criticizing the church. "And that means spiritual murder to believers, which will keep you out of earthly paradise when Armageddon comes." If excommunicated in this fashion, says Bowen, not only will you be shunned by church members, but church doctrine also decrees that for those who are "not baptized door-knocking Jehovah's Witnesses, your salvation is toast."
Because the Governing Body exercises a degree of control over its congregations not seen "anywhere except the military," Hampton adds, "that control creates an agency relationship that makes the corporate church vicariously liable for the negligence of its congregations."
But with more than 6 million active Jehovah's Witnesses worldwide, argues Watchtower Society associate GC Moreno, "the idea that we are robots who do whatever the elders say is not correct."
In the Watchtower defendants' Motion for Summary Judgment, they allege that the First Amendment precluded the court from finding a duty to protect because that would entail assessing the "reasonableness of the Church Defendants religious beliefs."
However, in matters of child sex abuse, the trend in the courts is toward finding a compelling state interest to protect the welfare of children, says University of Texas School of Law professor Douglas Laycock, who teaches constitutional law. But, he cautions, "the farther you get away from the abuser, the less likely the courts will find a duty and the more likely they are to find a First Amendment defense."
Closer to the alleged abuser, however, were the Dumas and Amarillo congregations, close enough that Judge Pirtle didn't trifle with First Amendment concerns and disposed of the pretrial issues under Texas law. In his two March 29 letter rulings, the judge offered something for -- and against -- everyone. While he found that a duty exists "between the Plaintiff and the congregations," he granted summary judgment for the more remote Watchtower defendants in New York and Pennsylvania, ruling they had no such duty. The judge also overruled the claims of clergy-penitent privilege, which allows much of the discovery to proceed against the remaining defendants.
Although the judge articulated the law, he did not detail its application to the facts, and Amy B. filed a motion for clarification, which the court is entertaining. The remaining defendants also say they plan to appeal. What seems clear, however, is that a Texas court has ruled that two Texas Jehovah's Witnesses congregations assumed a duty to protect the plaintiff from the alleged sexual abuse of another congregant. Whether a jury decides it breached that duty is a matter for another day.
"We are just at the front end of these cases," Norris says. "And both sides are loaded for bear."