Court Partially Reverses Judgment in Church Molestation Suit

Wednesday, April 15, 2015

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Court Partially Reverses Judgment in Church Molestation Suit

Panel Says Jehovah’s Witnesses Had No Duty to Warn Congregants, but Should Have Kept Known Molester Away From Children

By KENNETH OFGANG, Staff Writer

Church elders who knew that a member had molested his stepdaughter had no duty to warn the congregation, but did have a duty to supervise the member’s subsequent participation in the church’s field activities, the First District Court of Appeal has ruled.

Div. Three Monday upheld the award of nearly $2.9 million in compensatory damages against officials of Jehovah’s Witnesses, holding them responsible for Jonathan Kendrick’s abuse of Candace Conti from 1994 to 1996, when she was between the ages of nine and 11 years old.

The court said the congregation to which Kendrick and Conti’s family belonged, and its parent organization, were liable because the two were allowed to do “field service”—going door-to-door to spread the church’s beliefs—together even though the elders knew that Kendrick had previously molested his 14-year-old stepdaughter.

No Punitive Damages

The panel, however, overturned an award of more than $8.6 million in punitive damages against the parent organization, because it was based solely on the untenable theory that the church had a duty to warn Conti’s parents and other members that Kendrick was a child molester.

Conti, who left the church as an adult, testified that Kendrick abused her several times a month. In an interview with “ABC Nightline,” she said she told church elders of the abuse, but they refused to act because she did not have two witnesses to the molestation.

The television program reported that about two dozen others who claim to have been abused as children by fellow Jehovah’s Witnesses have brought suits since Conti won her verdict.

According to the trial evidence, Michael Clarke, an elder of the North Fremont congregation where Kendrick’s and Conti’s families belonged, was told in November 1993 of an incident four months earlier where Kendrick had touched his stepdaughter’s breast. He and another elder, Gary Abrahamson, went to the family home and discussed the matter with Kendrick, his then-wife, and the daughter.

The elders testified that Kendrick told them the touching was “inadvertent,” but that they didn’t believe him. They said they neither encouraged nor discouraged the victim and her mother with regard to whether to call police, contrary to the ex-wife’s testimony that she was told to keep the incident private.

Clarke said he wrote a letter to the parent organization, Watchtower Bible & Tract Society of New York, Inc., reporting on the meeting. A heavily redacted version of that letter was introduced at trial.

Removed From Position

In the unredacted portion, Clarke said the elders were going to remove Kendrick from the role of “ministerial servant,” meaning he would no longer be allowed to perform administrative functions such as distributing literature to members. Clarke testified that congregation members were told that Kendrick was no longer a ministerial servant, but were not told why he was removed.

The defense also presented testimony that under church policy, a known child molester may engage in field service, but not with a child.

Conti’s lawyers introduced a 1989 letter from the Watchtower society to all elders in the United States. It said that elders must “give special heed” to the biblical warning not to “reveal the confidential talk of another,” in order to avoid “serious legal problems for the individual, the congregation, and even the Society.”

It also warned that “[w]ordly persons are quick to resort to lawsuits if they feel their ‘rights’ have been violated” and that the church’s adversaries “readily take advantage of any legal provisions to interfere with it or impede its progress.” In cases of child abuse, elders were told to protect victims “from further danger” and to contact the society’s lawyers “immediately,” while “protecting” written material, avoiding “[u]nauthorized disclosure,” and maintaining confidentiality.

Friend of the Family

Conti testified that Kendrick befriended her father and became a regular visitor to their home. During that period, he repeatedly drove her to his home after meetings or during field service, and molested her, he testified.

Some congregants, however, said they never saw Kendrick and Conti doing field service together, or leaving church together for that purpose, and did not see Kendrick hugging Conti or having her sit on his lap at church. Conti and one other congregant testified otherwise.

Conti initially sued Kendrick, the congregation, and the society. Kendrick—who told “Nightline” that he was never alone with Conti and never behaved inappropriately with her—settled by agreeing not to defend himself at trial or harass Conti or her witnesses, in exchange for a covenant not to execute any judgment against him. Journalists were able to locate Kendrick because he is a registered sex offender, having been convicted of a misdemeanor in connection with the touching of his stepdaughter and then convicted in 2004 of molesting his current wife’s 7-year-old granddaughter, according to sources.

Jurors found Kendrick liable for molestation, and the congregation and society liable for both failure to warn and failure to supervise. They found Kendrick 60 percent responsible, and awarded $7 million in compensatory damages and $21 million in punitive damages, reportedly the largest verdict for a single plaintiff in a church sexual abuse case up to that time.

Of the compensatory damages, $130,000 were economic damages for which all defendants were responsible. Of the $6.87 million in non-economic damages, 60 percent were allocated to Kendrick, 27 percent to the society, and 13 percent to the congregation. The punitive damages were allocated entirely to the society, but Alameda Superior Court Judge Robert McGuiness reduced the award to $8.61 million.

Justice Peter Siggins, however, writing for the Court of Appeal, said there was no basis for a plaintiff’s verdict for failure to warn, and therefore no basis to assess punitive damages on that claim.

While neither the privilege for penitential communications nor the mandatory reporting laws applied in this case, the jurist explained, the public policy underlying those laws “militates strongly against imposition of the duty claimed here to inform congregations of such communications.”

When the “clergy-penitent” privilege was codified, the justice noted, the California Law Revision Commission commented that the decision to reveal or keep confidential such communications was “better left to the discretion of the individual clergyman involved and the discipline of the religious body of which he is a member” than become the subject of legislation.

“Courts should likewise be wary to intrude in this realm,” Siggins wrote.

With regard to failure to supervise Kendrick’s field service, however, the jury verdict must be sustained because there was substantial evidence that the elders failed to carry out the society’s stated policy of barring molesters from being with children.

“Conti described how Kendrick would separate her from field service groups, take her to his home, molest her, and then take her back to Kingdom Hall or the service group,” Siggins explained. “The jury could find from this evidence that the elders were negligent in failing to supervise Kendrick’s field service.”

Imposing a duty to supervise under circumstances like those of this case, he went on to write, is appropriate given the foreseeability of the molester reoffending, the heightened risk when the molester is alone with a child, the reasonableness of the burden imposed, and the policy in favor of imposing liability as a way of preventing future harm.

The case is Conti v Watchtower Bible & Tract Society of New York, Inc., 15 S.O.S. 1869.