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Freedom of Religion Does Not Allow the Freedom to Harm: Jehovah’s Witnesses, Child Sexual Abuse and the First Amendment

By February 18, 2015June 19th, 2020No Comments

Recently, NPR released a report on the Jehovah’s Witnesses’ handling of child sexual abuse allegations. In the past, the Jehovah’s Witnesses have been criticized for the organization’s “two-witness rule” (which requires that a child who tells an elder that s/he has been molested by someone within the congregation must produce another witness to the crime before the elders will even investigate the allegation), and the fact that even if a perpetrator confesses the crime to the elders, the elders would often allow the individual to remain in the congregation.

Now, documents previously kept secret have begun to shed light on the true extent and scope of the organization’s concealment of child sexual abuse.

The Watchtower Bible and Tract Society and/or the Christian Congregation of Jehovah’s Witnesses has issued at least 10 memoranda (all approved by the Governing Body) dating back to 1989, wherein leaders of the Jehovah’s Witnesses instructed the religion’s elders to keep child sexual abuse secret from members of their congregations and from law enforcement.

One confidential document from 1989 states that “worldly persons are quick to resort to lawsuits if they feel their ‘rights’ have been violated [,]” and goes on to warn elders that breaches of “confidentiality” (i.e., reporting of child sexual abuse) could result in costly damages awards against the congregation and may lead to criminal prosecutions.

These internal documents reveal that although the religious organization collects detailed information on congregants who prey upon children, the policies nonetheless permit predators to remain actively engaged in the congregation and around children. A document from 2012 provides that “not every individual who has sexually abused a child in the past is considered a ‘predator[,]’” and goes on to state that the organization’s “branch office, not the local body of elders, determines whether an individual who has sexually abused children in the past will be considered a ‘predator.’” Only after that designation is made, and “only after receiving direction and instructions from the Service Department,” may two elders be assigned “to meet with the parents of minor children” and “discreetly inform[]” them of the danger so that the parents can “tak[e] precautions in this regard.”

Further, as recently as November 2014, the governing body instructed church elders to form internal committees to handle “violation[s] of criminal law (e.g., murder, rape, child abuse, fraud, theft, assault [,]” and that “strict confidentiality must be maintained to avoid unnecessary entanglement with secular authorities who may be conducting a criminal investigation of the matter.”

Notwithstanding the instructions contained in these “confidential” memoranda, in the last several years, numerous plaintiffs have filed civil suits against the Jehovah’s Witnesses for the organization’s concealment and complicity in child sexual abuse. For instance:

  • In September of 2014, a pair of sisters in Vermont filed a claim against their congregation after a member sexually abused them when they were as young as four; when the girls reported the abuse to the congregation, they were called “liars.”
  • In October of 2014, five women and one man filed suit against a congregation in Dallas for sexual abuse suffered at the hands of a congregation elder.
  • In Oregon in December 2014, two former Witnesses sued the Watchtower and a local congregation for staying silent after learning that an elder sexually abused them when they were in elementary school.

Although some plaintiffs, such as Candace Conti, have successfully held the Jehovah’s Witnesses responsible for these acts, many others have not. The primary reason that the Jehovah’s Witnesses and the Watchtower have been able to avoid liability is due to the success of their “First Amendment” defense.  However, the First Amendment should not confer immunity from tort and criminal law when the religious organization is involved in hiding criminal activity from the authorities and its own members, whose children are at risk.

Generally speaking, there are constitutional limits on judicial involvement in religious doctrine cases, in that courts are prohibited from resolving controversies which require adjudication of intra-religious disputes. Many religious organizations, such as the Jehovah’s Witnesses and the Catholic Church, have thus tried to use the First Amendment’s Religious Clauses as shield against state-enacted legislation conferring liability for certain behaviors (i.e., failing to report child sexual abuse to authorities), and have argued that such laws encroach upon the religion’s internal policies and practices.

The Supreme Court’s Religious Clause jurisprudence has consistently held that the First Amendment “embraces to concepts – freedom to believe and freedom to act,” with the first (“belief”) being absolute, and the second (“act”) being governable. Thus, the state may not legislate an individual’s religious beliefs, but the state may prohibit certain practices (religious or otherwise) that are detrimental to the best interests of society.

There are plenty of behaviors that religious (and secular) organizations should be deterred from pursuing, even if such behaviors are the natural product of the organization’s most dearly held beliefs. Ondrisek v. Hoffman provides an illustrative example. That case involved a religious sect which identified physical discipline (i.e. beatings) as a central tenant of its belief system. Two members of the religious sect sued the sect leader, Tony Alamo, for battery (among other claims). The jury awarded damages to the two members, and Alamo appealed to the Eighth Circuit, stating that he could not be held liable because he was exercising his First Amendment right. The Eighth Circuit disagreed and upheld the jury’s award, noting that “the First Amendment allows freedom of religious belief, but not injuries to the ‘equal rights of others.’…If a religious practice physically injures others, the state has the power to prevent or punish the acts.”

Intentional and criminally offensive conduct is not insulated from prosecution under the First Amendment. Religious entities and actors must be held accountable for their actions, “even if that conduct is carried out as part of the church’s religious practices.” In light of this, it is reasonable to presume that religious institutions are not exempt from federal and state child sexual abuse laws, especially when one considers the role of the religious institution in placing a known child predator in a position with access to children.

It is true that religious institutions often receive exemptions from generally applicable laws. These exemptions are seen as a means to protect the guarantee of religious freedom provided by the First Amendment to the United States Constitution. Exemptions from the law are not, however, unbridled: Courts are free to decide such disputes if they can do so without resolving the underlying controversies of religious doctrine.

The central issue in child sex abuse cases always involves children, and it is neither difficult nor an intrusion into religious doctrine to inquire whether the person considered or retained is appropriate for a job or position involving access to children. Neutral criteria may be established to determine such an assessment, just as neutral criteria may be established in assessing whether a religious institution acted negligently in refusing to remove, warn of, or otherwise report pedophiles in their employ.

If an institution – religious or secular – takes care and control over children, and selects whom to place near children, it must act in ways that do not negligently, recklessly, or intentionally put those children at risk. This does not secularize the institution, or attempt to adjudicate religious doctrine – it simply makes the institution less dangerous.

Here, the Jehovah’s Witnesses’ internal documents reveal that their child sexual abuse policies revolve around the theory that any legal inquiry into the organization’s failure to protect children would cause “unnecessary entanglement with secular authorities.” The Witnesses even assert authority over when a person who sexually abuses a child becomes enough of a “predator” to justify warning fellow congregation members of his predatory behavior. The confidential documents indicate that the institution felt it had the right to handle repeated crimes in private and place its public image above the interests of vulnerable children.

In a child sexual abuse case, the imposition of secular law would not intrude upon the Jehovah’s Witnesses’ religious doctrine; however, even if it did, there is no First Amendment protection for concealing and abetting child sexual abuse. It hardly seems rational to allow a religious organization that orchestrates worldwide concealment of child sexual abuse to hide behind the guise of the First Amendment’s Religious Clauses – such would effectively convey the message that covering up child sexual abuse is a constitutionally protected religious activity. The First Amendment should not be used as a shield against accountability for egregious behavior. Such a result cannot be in the best interest of society, children, or the religious organization itself.

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