Judge: Sisters may pursue church case

The Telegraph, Feb. 26, 2003
http://www.nashuatelegraph.com/
By ANDREW WOLFE, Telegraph Staff

NASHUA – Two sisters can pursue their claims that elders from their Jehovah’s Witness congregation in Wilton ignored their mother’s complaints of sexual abuse, a judge has ruled.

The sisters say that church elders failed to report their father’s abuse or do anything to stop it. They also claim that church policy and practices shield abusers from prosecution.

The church disputes that the elders were made aware of the abuse at the time.

Hillsborough County Superior Court Judge William Groff rejected the church’s arguments that the suit should be dismissed on constitutional and other legal grounds in a series of rulings earlier this month.

Groff ruled, however, that the state’s three-year statute of limitation for lawsuits prevents the sisters from suing their father for the abuse.

One of the sisters’ lawyers, Cynthia Waldt of St. Paul, Minn., declined to comment on Groff’s rulings Tuesday.

The church’s lawyer said he will ask Groff to reconsider.

“Obviously, we feel badly for the two plaintiffs, but neither Watchtower (the church’s national governing body) nor the congregation are responsible for what happened,” Donald Gardner of Manchester said.

“We’re confident that when Watchtower and the elders present their evidence, the facts will clearly show that neither (the church nor its elders) . . . knew of any child abuse until years after it had stopped, by which time the authorities already were involved.”

The sisters’ suit stems from the case of Paul Berry, 46, formerly of Greenville, who was convicted of 17 counts of aggravated felonious sexual assault after a trial in 2000 in Hillsborough County Superior Court.

Berry was sentenced to serve 56 to 112 years in prison, one of the stiffest sentences ever imposed for a sexual assault case in New Hampshire. The state Supreme Court upheld his convictions in a ruling last year.

Berry was convicted of repeatedly assaulting his stepdaughter, Holly Berry, 24, of Berkeley, Calif., while she was between 4 and 10.

Berry also had been charged with assaulting his biological daughter, Heather Berry, 20, of Charlestown on several occasions while she was between 3 and 6. Prosecutors and Heather Berry dropped those charges after the conviction and sentence in her sister’s case.

The Telegraph ordinarily doesn’t identify victims of sexual abuse, but the Berry sisters chose to go public when they filed the suit in 2001.

Their suit names Berry, the Wilton congregation of Jehovah’s Witnesses and the national organization, the Watchtower Bible and Tract Society of Brooklyn, N.Y.

Around the time of Berry’s trial, the sisters claim they learned their mother had told church elders of the abuse while it was happening, and asked for their help.

Their mother testified that the elders told her to keep quiet, pray more and strive to be a better wife.

Groff ruled that the girls can’t sue the church for allegedly violating a state law that requires people to report suspected child abuse, because the law doesn’t allow such claims. However, he ruled that the elders’ alleged failure to report the abuse or take other action on their mother’s concerns can be used as evidence of negligence.

Groff ruled that “any reasonable person” would have understood “the overwhelming risk of harm” from sexual abuse, and “the magnitude of that potential harm.”

“This rendered the elders’ conduct unreasonably dangerous in view of the horrific consequences to the plaintiff by not taking steps to report the abuse or properly counsel the plaintiff’s mother,” Groff wrote, assuming for argument’s sake that the elders did conceal the abuse.

“The prevention of sexual abuse of children is one of society’s greatest duties,” he continued. “Clearly the social importance of protecting the plaintiff from her father’s continued brutal sexual abuse outweighs the importance of immunizing the defendants from extended liability.”

The Watchtower Society had argued the church couldn’t be held responsible for a failure to protect children from a parent’s abuse. The society also argued that allowing the suit to proceed would violate the constitutional protection of freedom of worship.

Groff disagreed, finding that religious beliefs don’t excuse people from obeying state laws, including the law requiring people to report suspected child abuse.

The Jehovah’s Witnesses also claimed the elders to whom Berry’s mother reported the abuse were ministers of the church, and that state law protects the confidentiality of communications between the elders and members of the church – just as a priest can’t be forced to testify about matters disclosed during confession.

Groff found that issue requires further hearing, to decide whether elders were, in fact, ministers and whether their conversations with Berry’s mother should be considered confidential. A hearing on that matter is scheduled for March 17, but is expected to be postponed, Gardner said.

Groff ruled in the church’s favor on a similar issue in a criminal sexual abuse case involving a Hollis man convicted of sexually assaulting several girls. In that case, Groff found that elders in the man’s congregation couldn’t be forced to testify about disclosures the man made while the elders were investigating abuse charges.

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