Church sued

[Avatar4321]

https://amp.statesmanjournal.com/amp/2832368001?__twitter_impression=true

for reporting a man who confessed to child abuse to the police

[Calm]

Being discussed in another thread, but I have lost track of which one. Probably not bad idea to have its own thread due to legal issues involved. 

[Avatar4321]

I didn’t see anything. Sorry

[Calm]

http://www.mormondialogue.org/topic/72539-proposed-bill-in-utah-to-eliminate-priestpenitent-privelege-re-child-abuse/?do=findComment&comment=1209950716

 

[carbon dioxide]

The repentance process is more than just confession. If the law is violated and harm has been done, one needs to seek restitution not just with the victim but also the law.

[Avatar4321]

Agreed. I was under the impression that Church policy was to report such things 

[Meadowchik]

And then we have:

https://nbcmontana.com/news/local/court-reverses-35m-verdict-against-jehovahs-witnesses?fbclid=IwAR3OVgUoF3IuI1TPDaQiHw0HChiWQopRpqXzfn68vY9iwk9MpuHvc-OKuLU

Quote

 

HELENA, Mont. — The Montana Supreme Court has reversed a $35 million judgment against the Jehovah's Witnesses for not reporting a girl's sexual abuse to authorities.

The state's high court said in a 7-0 decision Wednesday that the church is not required to report because its doctrine requires that clergy keep reports of child abuse confidential.

 

 

[Robert F. Smith]

10 hours ago, Avatar4321 said:

https://amp.statesmanjournal.com/amp/2832368001?__twitter_impression=true

for reporting a man who confessed to child abuse to the police

" The man's confession was meant to be confidential, said the family's attorney Bill Brandt. He said local clergy's actions 'totally violated church policy.' "

[Calm]

59 minutes ago, Robert F. Smith said:

" The man's confession was meant to be confidential, said the family's attorney Bill Brandt. He said local clergy's actions 'totally violated church policy.' "

This seems to be the prime issue. He was promised confidentiality, perhaps before any awareness of what he would confess (more likely something non criminal) so there wasn’t the condition added “unless it involves ....” and didn’t get it. 

My understanding is lawyers, doctors, tradespeople may lose their license to practice because the organization providing the license has standards of behaviour, but it is not a criminal act (unless fraud is involved) so there would be no legal implication.

With churches, there is even less involvement with government as they don’t use an organization to determine who can or cannot work in religious jobs. 

So having said all that, could they claim fraud on any basis?  Maybe using tithing to set up a contractual relationship?

Seems unlikely.  Can contracts of association be taken to court even?  Like can someone be sued for not showing up on their wedding day, for example (a commitment made and then broken).

Edited January 9, 2020 by Calm

[smac97]

2 hours ago, Calm said:

This seems to be the prime issue. He was promised confidentiality, perhaps before any awareness of what he would confess (more likely something non criminal) so there wasn’t the condition added “unless it involves ....” and didn’t get it. 

Yes, that is the crux of the case.  Apparently a counselor in the bishopric has been specifically singled out and named in the suit.  See here:

Quote

The lawsuit filed in Oregon singled out a man who served as a counselor to Johnson's bishop, claiming the church failed to properly supervise him and train him of his obligations as a member of the clergy.

And here:

Quote

Further complicating matters, the lay clergy member who reported the abuse outlined in this lawsuit, Brian Saari, is a pharmacist, according to the plaintiff’s lawyer. Pharmacists also are listed as mandatory reporters of child abuse in Oregon -- whether they’re on the job or not when they learn about alleged abuse, according to state officials.

So it sounds like Bro. Saari learned of the confessed misconduct in his capacity as a counselor in the bishopric, either inadvertently or else as such information was disclosed to him during disciplinary proceedings.

The second quote above presents an interesting question.  Did Bro. Saari notify law enforcement in his capacity as a pharmacist?  Would a "mandatory reporting" law that compels pharmacists to report allegations of abuse "whether they're on the job or not when they learn about the alleged abuse" override the priest/penitent privilege?  I really doubt it.  If so, this would effectively gut the privilege in many circumstances.  I don't think the Oregon courts would go that way.

Did Bro. Saari "go rogue?"  It seems highly unlikely that the Church would instruct or authorize on a counselor in the bishopric to notify law enforcement.  The bishop would do it or, more likely, the attorneys who man the bishop's helpline would do it (assuming, or course, that the notification of law enforcement was compliant with the law and the privilege).  This irregularity has really piqued my interest.

Quote

My understanding is lawyers, doctors, tradespeople may lose their license to practice because the organization providing the license has standards of behaviour, but it is not a criminal act (unless fraud is involved) so there would be no legal implication.

With churches, there is even less involvement with government as they don’t use an organization to determine who can or cannot work in religious jobs. 

So having said all that, could they claim fraud on any basis?  Maybe using tithing to set up a contractual relationship?

The "fraud" theory would be something like this: "The Church has a longstanding policy of honoring the clergy/penitent privilege.  Mr. Johnson relied on that policy and was induced into confessing his misconduct to his bishop.  But for that policy, he would not have confessed, and hence his confession would not have been reported to law enforcement, and he would not have been prosecuted and imprisoned."

Has the wife presented a fraud claim in her lawsuit?  If so, will it succeed?  Dunno.  My initial thought is "probably not."  As I noted previously, plenty of legal hurdles come to mind:

• Lack of legal standing (the wife and kids did not hold the privilege, so they can't sue because it was breached). 
• Lack of proximate cause (was there a causal bridge between the Church reporting allegations of abuse and the woman and her children being "injured"?).  
• Lack of claim upon which relief can be granted (do Oregon state courts recognize a claim for money damages based on "breach of priest/penitent privilege"?). 
• Public policy (do we really want to punish clergy for reporting allegations of abuse?).  
• Are the claims barred by the Ecclesiastical Abstention doctrine?  Can the Courts entertain a lawsuit based on a religious group not following its own policies?  

Probably more.

Quote

Seems unlikely.  Can contracts of association be taken to court even?  Like can someone be sued for not showing up on their wedding day, for example (a commitment made and then broken).

The lawsuit isn't a contract case.  It's a tort case (a "tort" is a non-contractual, non-criminal wrongful act, for which the law provides a remedy).

Thanks,

-Smac

Edited January 9, 2020 by smac97

[smac97]

.

Edited January 9, 2020 by smac97

[bluebell]

An article that I read says that the lawsuit claims "Church leaders' actions deprived Johnson's wife and children of his companionship, society, love and income."  What is wrong with people?!  Her husband's actions are what caused all of that, not the church's.  

This lady and her lawyer are deluded.

[smac97]

Here is an interesting remark from the attorney representing the wife:

Quote

“The Mormon Church is, for lack of a better word, a unique institution,” Bill Brandt, the attorney representing Kristine Johnson, told The Washington Post on Wednesday night. “They firmly believe that they can deal with their parishioners better than law enforcement.”

Um, no, that's not even close to correct.  The Church provides religious instruction and pastoral care.  It has no interest in intruding into the purview of "law enforcement."

The article goes on:

Quote

Timothy Johnson, now 47, went before a council of lay clergy and confessed to the abuse so he could begin the process of working toward absolution through “fairly intensive” spiritual counseling, Brandt said. But one member of the panel notified the authorities. In 2017, Johnson was arrested on charges of first-degree sodomy, sexual abuse and unlawful sexual penetration for sexually abusing a child under the age of 16. He pleaded guilty to four counts of second-degree sexual abuse the following year.

Hmm.  It sounds like "one member of the panel," the bishopric counselor, received the information about the confessed misconduct in his formal capacity, as a participant in a disciplinary council (the "panel").  

Does the priest/penitent privilege extend to counselors in a bishopric in such circumstances?  I would think so.

Did the counselor therefore breach the privilege?  It looks that way.

Did the counselor seek or obtain authorization from the Church to notify law enforcement?  I really doubt it.

Did the counselor have the legal obligation (he's a pharmacist) to notify law enforcement?  This is not immediately clear, but again, I doubt it.

Did the counselor "go rogue"?  It looks that way.

Should he have "gone rogue"?  Honestly, I think the hard answer is "no."  The privilege exists for a reason (several reasons, actually).  This story is getting quite a bit of press attention.  How many members of the Church now know about it?   If and when one of these members engages in serious misconduct, will he now be less likely to trust the local leaders and the Church to keep the privilege?  Will he therefore be less likely to confess the misconduct?  Will he, no longer trusting that his confession will be kept confident, instead continue the misconduct, or regress into worse stuff?  

This seems like a parade of horribles.  And in this case, the counselor's apparent breach of the privilege had a fortuitous result.  I'm just concerned that he may have also substantively undermined trust in the repentance process the Church has put in place for those who need it most.

Back to the article:

Quote

“The impact has been devastating, emotionally and financially,” Brandt told The Post, noting Johnson had five children and was the main breadwinner for his family. Though the couple has remained devout Mormons, he said, they consider the decision to involve the police a “breach of trust.”

I'm actually glad to hear she's still in the Church.  I think her lawsuit is legally/morally problematic, that is neither here nor there.  I hope she can navigate the choppy waters ahead.

Quote

If the court doesn’t agree that Johnson’s confession to church leaders was a privileged communication, Brandt says, he plans to argue that clergy members erred by not warning him that they were obligated to report him to the authorities.

“The fellow had no history of this,” he told The Post. “There were no other victims. It was just a horrible thing.”

See also here: "‘{The leaders should have said} "Look, before you come in here and say this, we need to tell you ...we’re going to report you,"' Brandt said to the Oregonian."

Well, apparently he did have a "history," since he admitted to the misconduct (described here as "repeated sexual contact with a minor").

Moreover, this argument seems odd.  Is Mr. Brandt seriously suggesting that clergy have a duty to, in essence, give a Miranda warning to anyone who meets with a bishop?  "Good morning, Brother Jones.  I appreciate you scheduling an appointment with me.  Let's start with a prayer.  But before that, I need to tell you that if you tell me about sexually abusing children, I will report you to law enforcement.  Clear enough?  Okay, let's pray..."

My understanding of the state laws, and the facts of this story, is that the privilege should have been in place, but that the counselor in the bishopric violated it.  If that's Mr. Brandt's theory, then his argument " that clergy members erred by not warning him that they were obligated to report him to the authorities" doesn't work.

Quote

But some experts worry that the lawsuit could have a chilling effect, and that church leaders will be less likely to report suspected abuse if they fear getting hit with a pricey lawsuit.

“If successful, this litigation would push courts and these religious organizations toward less transparency than more,” Christine Bartholomew, an associate professor at the University at Buffalo School of Law, told the Oregonian. “And you have to wonder if that would create the environment where abuse can really fester.”

That's a legitimate concern.

Thanks,

-Smac

[smac97]

6 minutes ago, bluebell said:

An article that I read says that the lawsuit claims "Church leaders' actions deprived Johnson's wife and children of his companionship, society, love and income."  What is wrong with people?!  Her husband's actions are what caused all of that, not the church's.  

This lady and her lawyer are deluded.

Don't judge her too harshly on that language.  It's legalese.  Her lawyer is saying it.  It's a hoop he has to jump through.

Thanks,

-Smac

[smac97]

So here is an interesting wrinkle...

Look at this statement from this article:

Quote

Kristine Johnson, for her part, said she’d never considered going to the police because her strong religious faith compelled her to protect her pedophile spouse.

“It never occurred to me to go the police,” she told KUER in 2018. “It never entered my mind because of being raised Mormon. These bishops and leaders are like God—they speak for God.”

Except that Kristine Johnson never said any such thing to KUER in 2018.  That was Kristy Johnson talking about abuse by her father int he 80s (see here).

That's a pretty significant mistake in reporting.

-Smac

Edited January 9, 2020 by smac97

[Calm]

“The Mormon Church is, for lack of a better word, a unique institution,” Bill Brandt, the attorney representing Kristine Johnson, told The Washington Post on Wednesday night. “They firmly believe that they can deal with their parishioners better than law enforcement.””

This guy is full of it.  Got to wonder why he is trying to position the case this way.  Make it appear a reasonable assumption of Johnson’s that even if he confessed, he could remain in good standing in the Church without confessing to law enforcement as well...thus creating the illusion he believed he would never have to deal with the law?  If so, again full of it.  A crime like that would get him exed if there was less than full repentance and refusing to submit to the law seems like he is willing to suffer the minor penalties the Church can require but avoid anything of real inconvenience or hardship.

“If the court doesn’t agree that Johnson’s confession to church leaders was a privileged communication”

If it did agree, then how could he have been prosecuted if the confession was the proximate cause?

Edited January 9, 2020 by Calm

[Calm]

38 minutes ago, smac97 said:

So here is an interesting wrinkle...

Look at this statement from this article:

Wow.

Except that Kristine Johnson never said any such thing to KUER in 2018.  That was Kristy Johnson (see here).

That's a pretty significant mistake in reporting.

-Smac

If she said the first part of the quote...she should put protecting her pedophile husband first....she has some serious misconceptions about what the church teaches.  I suppose she may be rationalizing it because of the treatment her husband may get in prison from other inmates. 
 

The husband was a sculptor, probably even if he had work to sell, it wouldn’t. 
 

Took two years after his conviction for her to file. Maybe that is how long it took to use up savings, etc or maybe to find a lawyer willing to take the case. 

Raising 5 kids on her own, maybe she is hoping for a settlement. I can’t imagine she is thinking long term as employment may be harder for her to get if they hear how she wanted to hide her husband’s crimes, putting more children/youth at risk, even her own. They may even assume she knew it was going on and didn’t care as there is no outrage expressed and the legalese makes it sound like she doesn’t even see it as something he deserves. 

Edited January 9, 2020 by Calm

[Calm]

“However, one member of the panel went off-script: instead of covering up Timothy Johnson’s self-confessed crimes against children, the clergyman told real-world authorities.”

Is this a slam by the reporter?  SOP is coverup? Or is the lawyer pushing this narrative to make the Church into a villain for covering up past crimes and his client will benefit from the need to punish such a practice?

[Calm]

What is known about the lawyer and the types of cases he usually takes or his reputation?  
 

could he be doing it to create a challenge for mandatory reporting?

Edited January 9, 2020 by Calm

[bluebell]

1 hour ago, smac97 said:

Don't judge her too harshly on that language.  It's legalese.  Her lawyer is saying it.  It's a hoop he has to jump through.

Thanks,

-Smac

I have a lot of compassion for her and her kids.  She is suffering, and probably a lot, because of the choices of someone else.  That is a very difficult thing to deal with.  I get that the lawyer has a job to do but if the crux of the case is that it's the church's fault that the man is in prison, that argument shows some real mental gymnastics in my opinion.

[smac97]

42 minutes ago, Calm said:

If she said the first part of the quote...she should put protecting her pedophile husband first....she has some serious misconceptions about what the church teaches.  

Please read what I wrote again.  I don't think she said any part of the quote.  The journalist got sloppy and attributed a quote from Kristy Johnson in 2018 to the wife (Kristine Johnson).

42 minutes ago, Calm said:

Raising 5 kids on her own, maybe she is hoping for a settlement. I can’t imagine she is thinking long term as employment may be harder for her to get if they hear how she wanted to hide her husband’s crimes, putting more children/youth at risk, even her own. They may even assume she knew it was going on and didn’t care as there is no outrage expressed and the legalese makes it sound like she doesn’t even see it as something he deserves. 

The legalese can be misleading.  But to be honest, I don't think her attorney is doing a very good job of characterizing his case.  

Thanks,

-Smac

[Calm]

7 minutes ago, smac97 said:

The journalist got sloppy and attributed a quote from Kristy Johnson in 2018 to the wife (Kristine Johnson).

That depends on if the reporter not only paraphrased, but extrapolated and added to the quote though.  There is nothing in the quote below from Kristy Johnson specific to intentionally protecting the predator (not quoting Kristy Johnson, but the article’s first part which is a paraphrase)

“It never occurred to me to go to the police,” she told the station. “It never entered my mind because of being raised Mormon. These bishops and leaders are like God — they speak for God.””

——

There is enough of a difference I am wondering if Kristine Johnson said something about how she should put her husband first.  Maybe later I will read other articles to see if the possibility is there. 

Edited January 9, 2020 by Calm

[smac97]

23 minutes ago, bluebell said:

I have a lot of compassion for her and her kids.  She is suffering, and probably a lot, because of the choices of someone else.  That is a very difficult thing to deal with.  I get that the lawyer has a job to do but if the crux of the case is that it's the church's fault that the man is in prison, that argument shows some real mental gymnastics in my opinion.

I feel for her, too.  I have a friend in similar circumstances (mother to young children when, her husband sent to prison).

The issue at hand ("the crux of the case" as you put it) is legal "causation."  The legal relationship between, and significance of, the act (the bishopric counselor breaching the privilege) and the effect (the police getting involved and investigating and finding evidence, the prosecutor doing his job, the court doing its job, etc., all culminating the husband being sent to prison).

The "act" must be "wrongful" in some legal sense (which is possible here, given the breach of the privilege).  But then the attorney also has to establish, through argument and evidence, that there exists between the "act" and the "effect" (husband going to prison) a "bridge," such that the trier of fact (the judge/jury in the wife's lawsuit) can link the two together (such that the act caused the effect).  However, there are all sorts of ways this can (and I think likely will) fail.  I don't think the attorney will be able to build that bridge.  But he has to start with something, and that something is "legalese" that can sound pretty strange, even offputting.

Thanks,

-Smac

Edited January 9, 2020 by smac97

[smac97]

3 minutes ago, Calm said:

That depends on if the reporter not only paraphrased, but extrapolated and added to the quote though.  There is nothing in the quote from Kristy Johnson specific to intentionally protecting the predator. 

“It never occurred to me to go to the police,” she told the station. “It never entered my mind because of being raised Mormon. These bishops and leaders are like God — they speak for God.””

——

There is enough of a difference I am wondering if Kristine Johnson said something about how she should put her husband first.  Maybe later I will read other articles to see if the possibility is there. 

I think the misattribution is sloppy, but understandable given the similarity in the names and subject matter (and that the quote had been used by other outlets).

Several of the other news outlets that have covered this story have specifically provided the above quote, but have properly attributed it to Kristy Johnson.

See, e.g., here (Washington Post):

Quote

In recent years, the Mormon Church has been hit with lawsuits accusing lay leaders of sexual abuse, as well as accusations that it helped protect the perpetrators from facing justice. One activist, Kristy Johnson, told KUER in 2018 that her father had molested her and her sisters when they were children, but church leaders saw it as a sin necessitating religious guidance, rather than the involvement of law enforcement.

“It never occurred to me to go to the police,” she told the station. “It never entered my mind because of being raised Mormon. These bishops and leaders are like God — they speak for God.”

And here (Daily Mail):

Quote

The Mormon church has been subjected to a number of lawsuits in recent years, accusing leaders of sexual abuse, as well as accusations they actively helped to prevent perpetrators from facing justice. 

Speaking to KUER in 2018, Kristy Johnson said that her father had molested her and her two sisters for years when they were children, however church leaders saw the heinous crimes as a sin that warranted religious guidance, rather than legal intervention.

'It never occurred to me to go to the police,' the activist told the station. 'It never entered my mind because of being raised Mormon. These bishops and leaders are like God — they speak for God.'

Thanks,

-Smac

 

Edited January 9, 2020 by smac97

[Calm]

1 minute ago, smac97 said:

Several of the other news outlets that have covered this story have specifically provided the above quote, but have properly attributed it to Kristy Johnson.

See, e.g., here (Washington Post):

And here (Daily Mail):

Thanks,

-Smac

 

I know that. I see what is said above as different from a specific claim she was taught to protect her husband no matter what by her faith.  That the first part has the “never considered going to the police” does make it appear to be a confusion with Kristy Johnson, but “compelled her to protect her pedophile spouse”...that seems an extrapolation as letting the Church rather than LE handle discipline is not automatically about protecting the predator, its purpose could be viewed in other ways.  Makes me wonder therefore if something else was said about protecting her husband and those comments of both Kristine and Kristy Johnson got combined into the paraphrase below.

”Kristine Johnson, for her part, said she’d never considered going to the police because her strong religious faith compelled her to protect her pedophile spouse.”