Wednesday, December 12, 2018
Says Liability Is Properly Affixed on Organizational Head of Church Where Known Pedophile Was Placed in Position of Authority, Though Conduct Occurred at Private Get-Together
By a MetNews Staff Writer
The Fourth District Court of Appeal has affirmed a $4 million judgment against the Jehovah’s Witnesses’ governing corporation which a judge awarded after he struck its answer to a complaint alleging negligent hiring and supervision of the plaintiff’s abuser.
Thomas A. Peterson, a retired Los Angeles Superior Court judge, sitting on assignment to the Riverside Superior Court (now deceased), struck the answer based on the defendant’s refusal to produce 1997 documents concerning known molesters in the church.
Affirmance came Monday in an opinion by Justice Douglas P. Miller of Div. Two. It rejects the contention by the Watchtower Bible and Tract Society of New York—described in the complaint as the “organizational head of the Religion”—that the plaintiff failed to allege that her sexual molestation at the hands of church elder Gilbert Simental at a non-church-sponsored slumber party at his home had been proximately caused by the defendant’s negligence in hiring him.
The plaintiff, identified as J.W., was born in 1997.
Miller also rejected the Watchtower’s claim that the terminating sanctions were excessive, noting that the church repeatedly refused to turn over the response letters it received following a 1997 request to its constituent congregations to report any instances of child abuse in their jurisdictions.
J.W. tried for nearly a year to obtain the documents following an order by Peterson to produce them.
Simental’s daughter was a friend of the plaintiff. He sexually abused J.W. and another girl, “Doe 1,” in his backyard swimming pool on July 15, 2006. A year earlier, he had molested Doe 1’s sister, “Doe 2,” at a slumber party.
The two sisters reported the incidents to their mother, which prompted an inquest by the church’s elders.
The plaintiff contended that the 1997 documents were needed both tgo0 show negligence and basis for punitive damages. Under Code of Civil Procedure §425.14, a claim against a religious corporation for punitive damages requires leave from the trial court, and such leave may be granted only upon an affidavit showing clear and convincing evidence establishing such damages.
Miller found unavailing Watchtower’s argument that it would take 19 years to sort through them, and also rejected the notion that they were covered by the clergy-penitent privilege. Despite the court’s order, Watchtower continuously ignored meet-and-confer requests by the plaintiff.
J.W. asked the court for terminating sanctions, which Riverside Superior Court Judge Raquel A. Marquez granted after giving the church another four days to produce the documents, which it declined to do.
Miller credited the plaintiff’s allegation in her operative complaint that even though the church hadn’t sponsored the sleepovers at Simental’s house, it was still responsible for his access to her.
“In the [first amended complaint], J.W. has alleged that it was Simental’s position of authority within the church that created the opportunity for him to molest her. A reasonable inference from this allegation is that J.W. met Simental due to his position within the church, and her parents felt J.W. was safe in Simental’s care because he held a position of authority in the church. Thus, Simental’s position as an elder in the church was a necessary antecedent of the molestation.”
“J.W. alleged that Watchtower knew of the threat of pedophilia posed by Simental, yet Watchtower permitted Simental to hold a position of authority that placed him in the company of children. Because J.W. has alleged that Watchtower had knowledge of the threat posed by Simental, she has sufficiently pled facts from which Watchtower could be held legally responsible for the molestation.”
Severity of Sanctions
Watchtower insisted that terminating sanctions were an excessive response to its non-production of documents. Miller responded:
“The trial court said its tentative opinion was to grant terminating sanctions, but it gave Watchtower four days to start producing the 1997 Documents. Watchtower did not produce the 1997 Documents. Given that the prospect of terminating sanctions did not motivate Watchtower to comply with the court’s discovery order, it is logical to conclude that lesser sanctions would have been ineffective in motivating Watchtower to comply.”
The opinion also rejects the church’s argument that it didn’t know it was required to produce the documents, and upholds the trial court’s denial of its motion to set aside the order granting terminating sanctions.
The case is J.W. v. Watchtower Bible and Tract Society of New York, Inc., 2018 S.O.S. 5863.
Simental’s Criminal Case
Simental was convicted by a jury of three counts of lewd and lascivious acts on a child under the age of 14, based on his conduct toward Does 1 and 2, as well as J.W., denominated in that case “Doe 3.” He was sentenced by Riverside Superior Court Judge F. Paul Dickerson III to an aggregate sentence of 45 years to life.
The conviction spawned an unpublished 2009 Court of Appeal opinion from the Fourth District’s Div. Two. The abuser’s sole contention on appeal was similar to one brought by the Watchtower in contesting the order to produce the 1997 documents; he claimed his admissions of the abuse to church elders was covered by the clergy-penitent privilege.
Now-retired Justice Betty A. Richli focused her opinion on the confidentiality aspect of the privilege. She wrote:
“Here, there was no evidence that the communication was in the form of a confession seeking absolution or that defendant intended that the communication be kept confidential. As the evidence shows, defendant did not seek out the elders to confess his sins and seek absolution, rather, the elders approached defendant as a fact-finding entity after they had received information that defendant had molested children….Therefore, as the trial court noted, defendant’s primary concern was not whether the communication would be kept confidential, but rather that he displayed a sufficient level of remorse to avoid being disfellowed.”
The Jehovah’s Witnesses’s website declares:
“We do not condone or protect child molesters....During the last 100 years, only eleven elders have been sued for child abuse in thirteen lawsuits filed in the United States.”
Copyright 2018, Metropolitan News Company