Deciding Between Organizational Confidentiality and Criminal Reporting

In October of 2019, the United States Supreme Court refused to review a case involving the sexual abuse of a minor that alleged a religious organization protected the known pedophile, leaving in place a decision against the organization. The case involved child molestation and religious secrecy. This post will review the basics of the case, then review lessons learned for religious organizations.

J.W. v. Watchtower Bible and Tract Society of New York

A nine-year-old girl, called J.W. in the case, was invited to a slumber party at the home of Gilbert Simental, who had a daughter about her age. Two other girls, sisters, were also at the party. The families were Jehovah’s Witnesses, and knew and trusted Simental since he had formerly been an elder in the church.

During the party, everyone got into the pool in the backyard, where Simental proceeded to molest J.W. and the two sisters. He repeated his actions later that night. The two sisters eventually told their parents, who reported Simental to local church elders (rather than law enforcement, because that is what the church taught them to do). Simental confessed to some of the allegations, and the elders gave him a reprimand.

When the sisters’ school principal learned what had happened, he immediately reported the abuse to local law enforcement. During the investigation, police contacted J.W.’s family asking for their story, but under the recommendation of the Witnesses’ elders, her father declined to speak with the police. A year later, J.W. told her parents what Simental did to her in the pool and, infuriated, they told the Witnesses’ elders they wanted a restraining order against Simental. Since the Witnesses preferred to keep Simental’s actions private, they advised against getting a restraining order, which would require informing the police.

Herein lies the bigger problem. There was reason to believe the Witnesses knew that Simental was a child molester and kept it from the families. Simental was allowed to be a respected religious leader, even though it is alleged that the other religious leaders knew he shouldn’t be around children. That raised the question in the case—were the Witnesses legally liable for what happened at the pool party?

A criminal case was filed against Simental for sexual assault. Gilbert Simental was found guilty of three counts of “lewd and lascivious” acts against a child under age 14 and sentenced to 45 years to life.

J.W.’s family filed a separate civil suit against the Witnesses’ governing organization, the Watchtower Society, for failing to warn congregation members about Simental and allowing him continued access to children. J.W.’s family demanded documents be produced that would reveal what the Watchtower Society knew about child molesters within the church. The Witnesses had already admitted to keeping lists of problematic leaders and their “crimes.” If Simental was on that list, it would prove the Witnesses knew he was a threat to kids but didn’t do anything about it. However, the Witnesses argued that, like Catholic confession, the lists were private information, and to reveal what was said within the church would violate the clergy privilege. 

Despite repeated orders from the state trial court to produce the documents, the Witnesses refused to produce the documents, and eventually sanctions and a default judgment of over $4 million was entered against Watchtower by the court. The Watchtower Society appealed the case to the California 4th District Court of Appeal, where the judgment was affirmed. The Watchtower Society then appealed that decision to California Supreme Court in March of 2019. The California Supreme Court refused to review the case. Finally, the Watchtower Society appealed the case to the United States Supreme Court. In October of 2019, the Supreme Court also declined to hear the case, so the sanctions and default judgment against the Watchtower Society will stand.

Organizational Perspective

There are a handful of lessons to be learned from this case.

First, religious organizations need to have child protection policies in place that clearly address the organization’s responsibility to protect children, including policies that clarify how a situation involving church members and/or leaders will be investigated.

Second, the organization should clarify with legal counsel whether and under what circumstances a clergy privilege would apply.

Third, the organization’s child protection policy should also clarify when and how members of the congregation would be notified of a possible danger. Organizational leaders should consult with legal counsel, as there are legal considerations that should be examined.

Fourth, religious organizations must respond to reported child abuse and if warranted report it to local authorities. Organization leaders should consult legal counsel to determine whether they should report. Failure to report could be a crime for church leaders and it could put children at risk.

Finally, claiming the clergy privilege regarding the discovery of specific church documents is not guaranteed to protect the organization from liability. In fact, refusing to produce court-ordered discovery documents may open the organization up to even more financial liability. Clergy privilege should be evaluated in light of the organization’s doctrine and state law.

If there are allegations, organizational officials should contact legal counsel to determine the organization’s legal and ethical obligations in response. Better yet, consult legal counsel in advance to make sure the organization’s policies and practices are consistent with best practices and legal requirements.

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Featured Image by Rebecca Sidebotham.