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Bar News - June 9, 2006

The Watchtower Case: The Court Got It Right


“Hard facts make bad law.” So the aphorism goes that we all learned in law school. Berry v. Watchtower Bible and Tract Society, 152 N.H. 407 (2005) presents a case of hard facts. In his “Morning Mail” piece in the
April 21, 2006, New Hampshire Bar News, attorney Ken Bouchard argues that the majority opinion got it wrong by “immunizing” a church from liability for bad advice to a parishioner in a case involving sexual abuse of minors. We argue, to the contrary, that the majority opinion resisted the temptation to make bad law from hard facts and got the decision right.


The allegations of Berry, taken as true and viewed most favorably to the plaintiffs, are these: Sara Poisson and her husband, Paul Berry were members of a Jehovah’s Witness church and parents of two young girls. Berry sexually and physically abused the girls for several years. Poisson consulted elders of the church on multiple occasions for spiritual advice on the situation. The trial court found the elders were ordained ministers within the religious privilege of NHRE 505 and RSA 516:29.  The elders gave spiritual advice to the couple,   including prayer, Bible readings, and discussion of the Scriptures. However, they advised [the wife] to keep the matter within the Jehovah’s Witness organization and did not advise her to report it to authorities as required by RSA 169-C:29. Significantly, there were no allegations that the abuse occurred on church property or in the context of church activities, that Berry was acting in any church capacity in committing it, or that the church in any way condoned the abuse. Poisson was a competent adult with parental responsibility for her children and under no compulsion to take the matter to the church elders or to follow their advice. The sole basis of a liability claim was that the ordained clergy, giving requested religious counseling to a parishioner, had breached duties to the children by neither reporting the abuse nor counseling Poisson to do so.


The majority opinion upheld the trial court’s dismissal of the claims. First, the court held that the child abuse reporting statute does not give rise to a civil remedy for its violation.  Second, it found no applicable exception to the general rule that citizens have no common law duty to prevent unanticipated criminal acts of third persons.  The court held that the fact of church membership or adherence to church doctrine does not create a special relationship requiring the church to protect its members from one another.  The court also rejected the plaintiffs’ claim that the church created an “especial temptation and opportunity for Berry’s criminal misconduct” such that a duty to protect the children from his abuse arose.  Rather, the court held that the elders did not create the risk of harm nor control its cessation or continuation (the harm did not occur on church property or at a congregation-sponsored activity). Finally, the majority found no fiduciary relationship of the church to the children, who had not been entrusted to its care, influenced by the elders, or placed their confidence in it. Justice Dalianis dissented only as to the “special circumstances” holding, arguing that the unusual facts of the case justified finding that the church had reason to anticipate Berry’s criminal conduct and could have discharged its duty by proper (religious) counseling.


The majority opinion, following existing law and finding no duty, avoids dealing with several issues of law and religion in which courts must tread lightly for both practical and constitutional reasons: (1) Does the religious privilege of RSA 516:29 and Rule 505 trump the mandatory reporting of child abuse under RSA 169:C-29? (2) Is there a tort of clergy malpractice? (3) Do state or federal constitutional requirements prohibit inquiry into spiritual counseling?


The religious privilege protects the confidentiality of religious counseling by an ordained minister or equivalent. It is rooted in the sacramental nature of the act of confession and reconciliation in some faiths and the prohibition imposed by certain clerical orders on disclosure of information learned in spiritual counseling. It protects access of persons to spiritual counseling, respects the privacy of such counseling, and avoids legal confrontations with clergy. Courts should not be deciding that certain matters disclosed in confession or spiritual counseling are no longer privileged, no matter how egregious the disclosure.


 The Berry plaintiffs’ claim is a barely disguised claim of clergy malpractice. Every court that has considered such claims since the leading case of Nally v. Grace Community  Church, 47 Cal. 3d 278 (1988) has rejected establishing such a tort. To find otherwise would require courts and juries to become arbiters of religious doctrine, examining conflicting expert opinions for every church or cleric against whom a claim was made. A clearer case of religious entanglement can hardly be imagined. Justice Dalianis in her dissent argues that there is no need to establish a professional clerical standard here because only “common sense advice to a church member” is involved. But no other professional care standard relies on “common sense” rather than expert opinion, and religion is uniquely an area where “common sense” does not determine the proper standard. As the Apostle Paul testifies, “[T]he foolishness of God is wiser than man’s wisdom . . . .”  I Cor. 1:25. The Christian and Jewish scriptures are full of examples of conduct that make no sense by human standards, but are commanded or commended by the Creator.


Finally, an excursus on state or federal law is beyond the space available here. But the wide berth given to religion in our legal system is grounded in principles that transcend the importance of human laws, as our founders recognized. James Madison put it well and famously in his Memorial and Remonstrance against Religious Assessments: “[E]very man who becomes a member of any particular Civil Society (does) it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.”


Religion is not a cloak for wrongdoing. No one argues that child abusers can defend themselves by claiming a religious privilege. If the church committed the abuse or negligently placed the children in danger, the duty would be clear. In Berry, the majority wisely declined to extend that duty to the confessional and require the clergy to give particular advice, at risk of tort liability, when spiritual counseling is sought.


Attorney Bouchard cites his rule of thumb that if not one of a thousand people on the street would think the outcome was fair, it isn’t. We’re not so sure there is that level of unanimity that the government should break into the sacred space of the confessional and make the church liable to persons it has not harmed to try to put yet one more nail into the coffin of child abusers. But the “thousand person” rule is a lapse into making bad law by hard cases. The same thousand people might agree that the attorney-client privilege, which has a much less respectable history than our society’s respect for sacred space, should not apply in matters of child abuse and that attorneys should be civilly liable to victims if they don’t report their client’s confession of abuse or advise them to do so. Are we attorneys prepared to abandon our own “sacred cows”? Is the right of persons to receive confidential legal advice more important than their right to receive confidential spiritual advice? Et tu, advocatus?


Richard B. Couser and Gayle M. Braley are members of the firm of D’Amante Couser Steiner Pellerin, P.A. in Concord. They are members of the Christian Legal Society, a national organization of attorneys of the Christian faith, of which Couser is a past president.


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