Diogenesister:
With regards to US lawyers using the ARC as either common
law jurisdiction or persuasive authority. I am not sure but it does seem very
unlikely because well the ARC was not a court. There was no due process in the
same fashion as a court in either Australia or the US. That is why the ARC
cannot enforce anything it was strictly an advisory role, they duty was to make
recommendations to the Australian Federal Government and send things to local
police and prosecutors for further investigation or review. If there were
further prosecution or judicial action it would have to be with full due
process.
It might be possible for a US lawyer to use the ARC
testimony as a means to impeach a witness, because I do believe the witnesses
testifying before the ARC were put under oath which carries the full penalties
of perjury. But that I think would be up to the trial judge to determine if you
can use the testimony of another witness in another country to impeach the
testimony in an instant case.
I am not sure if the majority of the cases are settled out
of court since not all cases are reported in a public fashion by either party
nor are they required to do so. I think that because Watchtower settled the
famous 18 suits that Zalkin brought like 6 years ago that it is assumed that
they are all settled. Many of them are dismissed either because of statute of
limitations or failing to state claim, because Watchtower is found to have no
fiduciary duty nor a duty to warn or a duty to protect. The famous of those instances
include the Conti case where the awarded was shaved down and the court of
appeals ruled that there is no duty to warn or protect and that there is only a
duty to supervise when conducting congregation sponsored events. The other
cases include the Lewis, Berry a recent case in Louisiana and a number of
recent cases in Texas were again there is found to be no fiduciary duty. Other
courts have also found that there is no civil claim that can be made even if a
report is not made.
Courts have found that if there is a criminal statute, that
if a case of child abuse is not reported that does not automatically mean that
a civil case can be filed against the person who violated that law. Courts have
found that only if the statute gives a private claim of action can a civil case
be brought. Some have claimed that a civil action would force people to report
these instances. But courts have found that if the law doesn’t give the right
to a civil claim, that it is up to the legislatures to find a remedy to enforce
those laws it is not a right of a victim to enforce it through a civil claim.
Even the ARC recognized that not all 1800 cases that they
found would a payment have to be made nor would the victim qualify for a
payment. The ARC recommended that payment be made only if they meet certain
criteria including that the abuse took place by someone who was an agent of the
organization and that the organization had prior notice that previous instances
occurred and didn’t do anything not in general with agents but for a specific
agent.
