Saturday, April 18, 2015

Watch The Back Church Pew

Again, California’s timid courts fail to show courage. In a case involving an accused church-going child molester the court coddles sexual miscreants.

In the 1990s a member of a California Congregation of Jehovah’s Witnesses began molesting a nine year old girl member when they were alone together, handing out church literature door-to-door. The victim says she was molested until she turned 11, when she told her mother about it.

Years later, as an adult, she sued her ex-congregation and the (much deeper pocket) parent church, Watchtower Bible & Tract Society of New York, Inc., which has 1.2 million members, claiming her congregation’s elders knew the man was a child molester before he molested her and should have protected her by informing the congregation and her parents.

A jury thought it was a reasonable assertion and awarded her $7 million in damages and an additional $21 million to punish the parent church. All damages were later reduced to a total of about $12 million.

The church appealed to the California court of appeal, which, while saying yes to the general damages, the three-judge court tossed out the punitive award. It essentially ruled that the elders did not have an obligation to warn either the congregation or the girl’s parents about a suspected child predator among them. (I hope your church has better sense.)

In its long-winded (aren’t they all?) opinion this month the judges said “misfeasance” and “nonfeasance” law states that a person cannot be civilly liable for failing to snitch off another for being a wrongdoer. In California law, the court said, “As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct,” saying, “this derives from the common law’s distinction between misfeasance and nonfeasance,” and, that the “basic idea is often referred to as the ‘no duty to aid’” rule in tort law. In a nutshell: one has no duty to come to the aid of another.

OK. I’ll buy into the argument up to a point.

For instance, say I know my brother once pilfered an ice cream bar from a store. From then on, obviously, the law cannot expect me to tell the guy behind the counter that my brother was once a thief when we walk into his store together. Alas, there is an exception to this “no duty to aid” rule, and it is precisely where the appellate court judges should have shelved their dusty law books and shown some courage to protect kids. This exception to the no-duty-to-aid rule is when a “special relationship” exists. Say, I have agreed to a “special relationship” to protect stores from my thieving brother. This means that I have a legal obligation to tell the guy behind the counter to keep an eye on my brother because he is prone to steal ice cream bars.

Here is my point: the appeals judges ruled that the church elders did not have a “special relationship” with members. Therefore elders had no legal obligation to inform the girl’s parents of the man’s prior molestation rap, even though they knew he was taking her proselytizing door-to-door; and even though members saw him “hug” and “sit” her “on his lap” in church. Maybe elders didn’t witness him molesting her but, come on, they knew his alleged proclivities with children. (Hell, an elder could have told her parents to check him on Megan’s Law.)

In giving the church elders a legal pass, the appeals judges showed timidity. They should have ruled there was a “special relationship” between elders and child members of the church; in other words, that elders have a legal obligation to protect kids. I mean, these are children for God’s sake. Who else are they going to depend on to protect them? It is not farfetched to say society’s first obligation – in front of protecting money in the bank and rights of criminals (sorry, ACLU) – is protecting children. To their credit, elders decided to watch the accused molester’s conduct in church. Guess what? He took her to his house.

In excusing the elders from having a legal obligation to inform the girl’s parents of what could be danger from a molester, the court shoehorned in the sacrosanct principle that a priest cannot be forced to disclose a penitent’s confession. It was a stretch but apparently the judges were worried more about the molester’s soul than the victim’s life. The only good result of this ruling is much of the money damages was upheld, basically because the court agreed the church was negligent in failing to restrict the man’s proselytizing so he couldn’t molest her. Still, these judges failed to even inch law towards enhancing civil protections for children from predators who sit in the back pew.
R.D. Byron-Smith's latest novel, American Jihadist, is now available at all online booksellers.


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