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Child Sex Abuse - Recent Case Law

Child Sex Abuse Cases - Recent Case Law

San Diego Clergy Abuse Attorney - Michael Rehm

Free Consultations - (800) 978-0754

One of the major recent cases to come before the Court of Appeals was that of Conti v. Watchtower Bible & Tract Society 235 Cal.App.4th 1214 (2015). This was a child molestation case and it essentially dealt with the duty to warn and supervise. The background to the case, per the facts discussed in the case, are as follows: Candace Conti was a member of the North Fremont Congregation of Jehovah's Witness's. Jonathan Kendrick was also a member of the congregation, and for a time, he was a “ministerial servant.” Conti was a minor, Kendrick was an adult. Part of the activities of the congregation was “field service,' “where small groups, usually consisting of two or three people, go door-to-door in neighborhoods to spread the church's spiritual teachings.” Conti at 1218. Per the case, Kendrick molested Conti, at his house, either during field service hours, or directly after. Conti was nine years old when the molestation started and it lasted for two-three years. Prior to the molestation occurring, the “Elders” of the congregation learned that Kendrick had been accused and convicted of molestation of his step-daughter. Kendrick had denied the accusation when the elders confronted him on this issue. The elders of the congregation contact Watchtower Bible & Tract Society, an organization that set all policies for the Jehovah's Witness organization, on guidance when they learned of the Kendrick molestation of his stepdaughter. How Watchtower responded is a point of dispute in the case. All agreed that Kendrick would no longer hold the role of a ministerial servant. An official from Watchtower testified that a known child molester would not be allowed to engage in field service either alone or with a child. Apparently, the policy of Watchtower was also to keep confidential the findings from other members of the congregation. So, in this situation, Kendrick remained n the congregation, and the fact that was a known child molester was not disclosed to other members of the congregation. He was no longer a ministerial servant, but could participate in the congregation and its activities. Conti was subsequently molested over a period of years during/after these field service activities.

Conti sued alleging that Watchtower and The Congregation had a duty to warn the other members of the congregation that Kendrick was a known child molester and that Watchtower and the Congregation had a duty limit and supervise Kendrick's field service. The court ruled that there was no duty to warn the other members of the congregation, but that Watchtower and the congregation are label for failing to limit and supervise the field service activities.

Duty to Warn:

The court had a thorough discussion of the duty to warn. They specifically focused on the need for a “special relationship,” between either Watchtower/Congregation and Kendrick, or Watchtower/Congregation and Conti, of which the court found none.

"Where, as here, a `complaint alleges injuries resulting from the criminal acts of third persons ... "the common law, reluctant to impose liability for nonfeasance, generally does not impose a duty upon a defendant to control the conduct of another [citations], or to warn of such conduct [citations], unless the defendant stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct."'" (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564 [50 Cal.Rptr.2d 399}, original italics (Roman Catholic Bishop)); see Rest.2d Torts, § 315; Nally v. Grace Community Church (1988) 47 Cal.3d 278, 293 [253 Cal.Rptr. 97, 763 P.2d 948] ["one is ordinarily not liable for the actions of another and is under no duty to protect another from harm, in the absence of a special relationship of custody or control"].) In Pamela L. v. Farmer, the wife of the child molester "assumed that special relationship" with his new victims when she invited them to her home and assured them they could safely play there. (Pamela L. v. Farmer, supra, 112 Cal.App.3d at pp. 211-212.)

The alleged duty to warn cannot be justified in this case on the basis of a special relationship. Fremont Congregation elders were required, as Conti's expert put it, to make Congregation members aware that "they had a sex offender in their midst" only if (1) members of a church have a special relationship with the church solely by virtue of that membership that requires the church to take affirmative steps to safeguard them against harm from other congregation members or (2) a church has a special relationship with any member it has reason to believe may perpetrate such harm. (See generally Roman Catholic Bishop, supra, 42 Cal.App.4th at p. 1564 [defendant must have a special relationship with the person whose conduct needs to be controlled, or the foreseeable victims of such conduct].) Conti makes neither assertion, and identifies no authority for any such broad duty on the part of a church to prevent its members from harming each other.”

This is the current law in place in regards to the duty to warn, whether the case deals with child molestation or another scenario, when analyzing whether a duty to warn exists, the personal injury attorney must analyze the relationships between all the parties to ta case to determine if there is a special relationship. So, if a religious organization finds out that a member of their congregation is a child molester, they have no duty to inform other members of the congregation. However, if a religious organization finds out that a member of the clergy or an employee of the religious organization is a child molester, the law laid out in this case seem to impose a duty to warned.  The court discussed the potential liability issues a religious organization could face if they imposed a duty to warn the other members of the congregation in this case. How long would the duty to warn last for? Would it be a continuous duty to warn? How far would the duty to warn stretch? Would the congregation also have a duty to warn about other criminal conduct? What about shoplifting and drug use? Whether you agree with the ruling or not, those are valid points.

Duty To Supervise:

For those disheartened by the decision so far, it is not all bad news. The court did hold Watchtower/Congregation liable for their failure to limit and supervise Kendrick's field service. There was some dispute in the case as to this issue, with Watchtower arguing that it did have a policy of not allowing known child molesters to participate in field service alone or with children. The court discussed how whether this was true, even if it were true, just because they had a policy of such, they also had a duty to implement this policy, and there was no evidence they did anything to implement the alleged policy. The court also discussed that there was not only a threat to children in the congregation when Kendrick performed field service, but also a threat to other children in the community. The court stated in dicta that there very well could an issue that the entire policy was negligent in that not allowing a child molester to perform field service alone or with children did not go far enough. They simply should not be allowed to do field service. The court did not rule on that issue however since it was not argued by Conti's lawyers. The court discusses the failure to implement policy here:

“In this respect, Conti's case is similar to Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377 [97 Cal.Rptr.2d 12] (Juarez). In Juarez, the plaintiff was repeatedly molested by a scoutmaster "during officially sanctioned scouting events, such as overnight camping trips ...." (Id. at p. 385.) Before the molestations occurred, the Boy Scouts had identified child sexual abuse as a serious problem, and had developed "a comprehensive `Youth Protection Program'" designed to prevent it. (Id. at p. 398.) The program included guidelines prohibiting an adult from sleeping in a tent with an unrelated scout, and requiring that two adults be present at any scouting activity. (Id. at p. 400.) The offending scoutmaster broke these rules, and the other scoutmaster of the troop said that he was never informed of them. (Ibid.) The plaintiff argued that the Boy Scouts had a duty to take reasonable measures to protect him from the molestations, and that they breached this duty because, among other things, they failed to implement their child protection policies in his case. (Id. at pp. 385, 400.) The court reversed a summary judgment for the Boy Scouts, finding that a duty was owed under the special relationship doctrine and the Rowland factors, and that there were triable issues of fact as to whether the duty was breached. (Id. at pp. 400-413.)”

In other words, you cannot simply hide behind a policy. You must take steps to ensure the policy is implemented. This is a big factor to consider in child sex abuse cases when the organization in charge attempts to assert that they had a policy that was designed to avoid child abuse. That is not a complete defense. The court not only found Watchtower/Conti liable for failing to supervise based on the failure to implement the policy, but also discussed ho win the context of church related activities, a special relationship was created, hence triggering a duty to protect Conti.

“Here, Conti was harmed during a church-sponsored activity, and defendants' control over that activity placed them in special relationships with Kendrick and Conti thus requiring them to take reasonable steps to prevent the harm from occurring.”

Once again, the issue of a special relationship becomes the crucial part of the analysis. Therefore, in any child sex abuse case against a religious, or other organization, the child sex abuse lawyer must also look to the relationships between the parties involved. Does the organization have a special relationship with the child molester? Does the organization have a special relationship with the victim? If the answer is no to both questions, the organization is in good shape, legally speaking. If the answer is yes to both, or one, the victim will have a much better chance of recovery against the organization.

Other interesting aspects to this case:

  • The court had an interesting discussion in regards to the penitential privilege:

”The law generally protects the confidentiality of communications with clergy like those of Kendrick to the elders here. Under the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.) clergy members such as a minister or similar functionary of a church or recognized denomination must report suspected child sexual abuse to law enforcement or a specified county agency. (Pen. Code, §§ 11165, 11165.6, 11165.7, subd. (a)(32), 11165.9, 11166, subd. (a).) However, this obligation does not arise when the clergy member is informed of the abuse during a "penitential communication," which is defined to mean "a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret." (Pen. Code, § 11166, subds. (a), (d)(1).)

Similarly, clergy and penitents each have a privilege not to testify about penitential communications. (Evid. Code, §§ 1032, 1033, 1034.) "`The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.'" (Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 443 [32 Cal.Rptr.3d 209].) It has been argued that "the humanistic case for this privilege is stronger than the corresponding case for any other privilege. A person's religious beliefs lie at the core of the decisional autonomy needed to develop his or her life plan. In a philosophic sense, the person's chosen religious beliefs are arguably his or her most important life preferences." (Imwinkelried, The New Wigmore: Evidentiary Privileges (2d ed. 2010) § 6.2.3.b, p. 529.) The treatise observes that the United States Supreme Court has recognized "a constitutional `right to believe ... whatever religious doctrine one desires,' `according to the dictates of his own conscience'" (fn. omitted), and continues: "If the person has a constitutional right to independence in making religious choices, the recognition of an evidentiary privilege is an apt means of protecting that autonomy. If any type of relationship deserves the protection of an enclave shored up with an evidentiary privilege, it is a consultative relationship dealing with this kind of choice." (Id. at p. 531.)”

This will often go the root of the knowledge that a child molester is in the midst. It provides a potential defense to the religious organization in regards to the duty to warn, however, it certainly would not provide a defense to the duty to supervise.

  • The use of experts was discussed. The child abuse experts testified about how Conti suffered from Child Sex Abuse Accommodation Syndrome, a condition that describes the behavior of victims of child molestation. The experts also testified that Conti suffered from Posttraumatic Street Disorder (PTSD), depression and anxiety. She would require a lifetime of therapy.

The use of child abuse experts is crucial in any child abuse case to properly explain why there can be a delay in reporting molestation, and how the abuse impacts the rest of the victim's life financially, as discussed in this case, Conti would need therapy for the rest of her life. If you have a been a victim of child sexual abuse or know a victim of child sexual abuse, and desire justice, contact San Diego Clergy Abuse Lawyer Michael Rehm for more information on the current state of the law in this area. Michael Rehm represents victims throughout California.

San Diego Clergy Abuse Attorney - Michael Rehm

Free Consultations - (800) 978-0754

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