Every five to 10 years or so, the New Hampshire Supreme Court comes down with a decision which, while perhaps based on existing law, is so wrong-headed as to violate common sense.  My mentor, Emile Bussiere, taught me a phrase that I have applied in such situations.  “You could line up a thousand people on the street and ask them if this outcome was fair, and not one of them would agree that it was.”  Over the years, I have used that phrase many times. Here, I use it with respect to the recent decision of Holly Berry v. Watchtower Bible and Tract Society of New York, 152 N.H. 407 (2005). 

In that case, the plaintiffs brought suit against their father, Paul Berry, for injuries from sexual and other abuse committed by Berry when they were minors.  Suit was also brought against the Bible Society (Watchtower) and the Wilton Congregation of Jehovah Witnesses (Wilton).  The facts, based on allegations by the children’s mother, were that the mother sought spiritual advice from the elders of the Wilton Congregation because she and her husband were experiencing marital problems, which included verbal, mental and physical abuse.  She also reported to the elders on 10-12 occasions that her husband had sexually abused the children. The elders told her to “keep the matter within the organization of Jehovah’s Witnesses.”  The plaintiffs complained that the elders failed to report it to law enforcement authorities and further, improperly counseled the mother about how she should handle the abuse.  The plaintiffs alleged that Watchtower and Wilton were negligent in failing to report the suspected abuse, that they breached their fiduciary duties by failing to report it, that they breached common law duties by failing to report, and engaged in willful concealment of the abuse. 

The facts as recited in the Supreme Court opinion indicate that the church elders were responsible for meeting with individual members of the congregation when requested to do so and working with them to identify problems, and to provide spiritual counsel.  The children’s mother approached the elders seeking spiritual advice because she and her husband were having marital problems, which included verbal, mental and physical abuse.  The elders provided the couple with spiritual advice and assistance, including joint prayers, Bible readings and discussion of the Scriptures for application to their problems.  In 2000, the father was convicted of sexually assaulting Holly, the first named plaintiff.

Watchtower and Wilton moved for summary judgment based on the religious privilege identified in RSA 516:35; that New Hampshire Rule of Evidence 505 precluded them from making disclosure of any confidential information obtained from the parents; that they had no common law or fiduciary duty to protect the plaintiffs from abuse; and that the reporting statute, RSA 169-C:29, did not create a private right of action.  The trial court initially ruled that there was no private right of action under the statute and that the elders did not owe the plaintiffs any fiduciary duty.  However, the trial court found that Watchtower and Wilton did have a common law duty to protect the children from abuse, and further that the reporting statute would apply to the elders due to its language applying to “any other person,” albeit without providing a private cause of action. 

However, after an evidentiary hearing, the trial court ruled that the church elders were ordained ministers for the purpose of applying Rule 505, and that the matters discussed with them by the plaintiffs’ mother were subject to a requirement of confidentiality, which had not been waived. 

In a later ruling, the trial court further found that all of the actions fell under the heading of “clerical malpractice” and that it would be a violation of the Establishment Clause of the First Amendment, thereby dismissing all of the remaining claims.

The Supreme Court affirmed. The Supreme Court held that the reporting statute did not provide a private right of action. 

With respect to the “special relationship” of a fiduciary duty to the members, the Court held that there was no such duty, holding that no special relationship exists between a church and its parishioners.  The Court also held that no special circumstance exists in a case where there is an allegation that the church fostered the opportunity for the father’s criminal conduct, holding that the trial court’s ruling that the elders had a duty to dispense common sense advice to the church members and reporting of the abuse was erroneous as a matter of law (note that this was dismissed by the trial court after the evidentiary hearing).

The Court decided that there was no “special relationship” as in the prior case of Marquay v. Eno, 139 N.H. 708 (1995).  There, Eno was a school teacher who had sexually abused a student.  The Court indicated some significant differences in a school which has the care and custody of the children during school hours and a church, which merely provides advice and counseling.

The dissent was spirited and vigorous by Justice Dalianis.  The dissent points out that Holly Berry was sexually abused by her father from 1983 until 1989.  Heather Berry was physically and sexually abused between the ages of three and six.  Also, the elders of the church instructed the children’s mother not to report the ongoing abuse.  They told her to “be silent about the abuse and to be a better wife.”  This is an excellent example of my favorite saying, if you took 1000 people (excluding pedophiles) and lined them up and asked them if this made sense, not one would step forward.  It seems to me that the elders took it upon themselves to get involved in this serious family situation, and once they did so, they had a duty to act with due care.  As the dissent further points out, the elders of the church not only created the opportunity for the father to continue abusing the plaintiffs, but actively facilitated the continuing abuse by instructing their mother not to act.  “It is not unreasonable to infer that Berry [the father] continued abusing the plaintiffs, his daughters, safe in the knowledge that Poisson [the mother] was not going to report him to secular authorities.”  Justice Dalianis argued that this is a set of facts under which a special relationship exits, citing Remsburg v. Docusearch, 149 N.H. 148 (2000) (where the defendant creates an especial temptation and opportunity for criminal misconduct) and Walls v. Oxford, 137 N.H. 653 (1993) (when one voluntarily assumes a duty).

The dissent also takes issue with the Court’s finding that the investigation into these claims would violate the first amendment prohibition against the free exercise of religion.  The dissent points out that interference by the government in religious activities is acceptable when the interest in the law’s enforcement outweighs the burden the law imposes on the free exercise of religion, citing a Massachusetts case.  Here, any interest in the Jehovah Witnesses in practicing their religion so as to conceal and arguably thereby encourage continuing sexual abuse of young children is surely outweighed by the interests of the State in enforcing its laws and it protecting children, especially because they cannot protect themselves.  A simpler question is: how can anyone argue that it is acceptable for a church to allow –even encourage – sexual abuse of children under any circumstances?

Further, how far can this be taken?  Should a Muslim cleric be immune from civil liability if he encourages the mother of a young child to allow that child to be a suicide bomber, under the guise of a claim that it would please Allah?  Should a Catholic Bishop be immune for civil liability for implicitly sanctioning the ongoing molestation of children off church property by a local priest by looking the other way?  In either case, civil liability aside, would not the cleric and the priest be liable for criminal conduct for aiding and abetting? What about some of the practices of the Moonies and other cult religions?

The bottom line is: any religion which counsels a woman to not report sexual abuse of her children and to keep it within the church, does not deserve protection by the court. It is the children who deserve the protection of our courts. Justice Dalianis is right.

Kenneth G. Bouchard is an attorney with Bouchard, Kleinman & Wright, PA in Hampton. He has been a member of the New Hampshire Bar since 1976.

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