Published October 22nd, 2018
On September 26th, 2018, a Montana jury of seven men and two women handed down the largest-ever punitive damages award for a single abuse victim.
The Watchtower Bible and Tract Society of New York, together with the Christian Congregation of Jehovah’s Witnesses were found guilty of both negligence and malice in connection with the intentional failure to file police reports on behalf of plaintiff Alexis Nunez and two additional victims. A combined total of 35 million dollars was assessed following detailed instructions given to the jury by Judge James A. Manley.
Four million dollars was awarded to plaintiff Nunez on the count of negligence, followed by a 31 million dollar punitive verdict, the result of the jury’s decision that Watchtower and its affiliates acted out of malice.
The case, originally filed November 2016, was placed in the hands of a Montana jury after multiple pre-trial attempts by Watchtower to have the case dismissed. In the September 11th, 2018 filing with the court, Watchtower claimed that they are an institution, and institutions are not individuals, or persons – and only persons are mandated reporters. By making this claim, Watchtower used semantics to misdirect the court. It was an outright attempt to avoid accountability for the policies which directed elders to remain silent when they discovered allegations of horrific and repeated sexual abuse of three members of the congregation by one perpetrator.
The statute lists persons (i.e., members of the clergy) as mandated reporters, Montana Code Annotated § 41-3-201, but does not include religions or entities religions use to perform their operations. – September 11, 2018 Motion by Watchtower attempting to halt the Montana trial
This article is the first in a series of articles documenting the events of the trial which might prove to be among the most significant child abuse trials in modern times.
I would like to thank Neil Smith, Ross Leonoudakis, and Tracy Rector of the law firm of Nix Patterson LLP, whose dedicated efforts on behalf of victims of abuse have sent a powerful message to the corporations whose flawed policies have not only broken laws, but broken lives.
The Opening Statements
[The following account combines the opening statements of this trial with the visual aids displayed by the plaintiff’s legal team for the jury. Every effort was made to reproduce this portion of the trial with extreme accuracy]
Monday, September 24th, 2018
Attorney for the plaintiffs, Neil Smith:
“If it pleases the court, thank you your honor. Ladies and gentlemen, if you’ll remember, I told you this morning about the different parts of the case. And I told you that during jury selection, that is not the opportunity for us to talk about the evidence (when) you hear the evidence. We are now at opening statements and opening statements provide me with an opportunity to tell you about the evidence that you will hear, and what the evidence will show, during the trial of this case. The evidence in this case will show that this is the case about a church that knew about a known child molester. When I say that the church knew about a known child molester, the church knew who he was, they knew who his victims were, and the evidence will show that they knew the sick things he did. Now, what do we all know about child molesters? We know that child molesters prey on children.
That is their victims. And if we do not protect children, from people we know to be a child molester, children will get sexually abused. You’re going to hear in this case, about how Montana law requires clergy members to report child abuse to the authorities. But in this particular case, the church you’re going to hear about, and their clergy, refused to follow the law. And they refused to follow the law because they favored the secrecy of their church over the safety of children. Now we talked a lot about the mandatory reporter law and what it is, and I want to be clear, the judge will ultimately instruct you on what the law is. And you will see that at some point in the case, you’ll see it come from the court. So I’m gonna put up right now what I expect the court will instruct you as to what the law is. This is what I expect the court will instruct you is Montana’s mandatory reporters’ statute. And here’s the reason I put this up here: I put it up here because sometimes when we talk about the law and what the law is, we get a little intimidated by it, and think “ah, that’s for lawyers.”
By putting it up here right now, so that you can get familiar with it, and you’ll recognize what this is when the court instructs you on the law. So let’s just walk through it – This is what you’ll see. It says:
When the professionals and officials listed in subsection 2, and down here in subsection 2 it says professionals and officials required to report are clergy. All right. There’s some other folks who are reporters, but for purposes of this trial, you need to know, you need to look for this when the court instructs you that it applies to clergy.
It says, when those professionals know or have reasonable cause to suspect, as a result of the information they receive in their professional or official capacity, that a child is abused or neglected, they shall report the matter promptly to the department of public health and human services or its local affiliate.
Alright let’s break that down and look at what the elements are of this lawsuit. We see it, you can look at it and say ok – I know what the elements are that Mr Smith talked about. First element, is that it applies to clergy. And we’re going to talk about in this case who are clergy, who meet that legal definition. The next element you’ll want to be familiar with is when is the law triggered. And that’s this part where it says “when professionals know or have reasonable cause to suspect” and it talks about a child being abused or neglected. So it’s triggered when a clergy member knows or suspects child abuse. The next element, it’s the third one, – there’s three parts to it – it says “what happens when the law is triggered?” And notice I have underlined, it says: They shall report. And the reason I underlined that language is because it’s really important because it doesn’t say you might report, or maybe report – it says “You shall report.”
It’s mandatory, and that’s the reason why this is called the mandatory reporter law. It requires that the abuse be reported to the department of public health and human services or its local affiliate. And that makes sense, we report it to someone who can take action. We report it to someone who can take action, and so that kids are protected. Let’s talk specifically about what happened in this case.
You now know in hearing about this case, that this case is about the Jehovah’s Witnesses. You see, the Jehovah’s Witnesses knew that a church member was molesting children. Now Neil, I know you’re thinking – what do you mean when you say that the evidence is going to show that they knew? I want you to listen for these things. The evidence is going to show that the victims reported to the church and to its clergy. They knew because it was reported. I want you to listen to how the church conducted an investigation and confirmed themselves that the abuse took place. The second way they knew.
And then the third thing I want you to listen for (if the evidence comes in this case???) is that the child molester actually admitted to the church that he was a child molester and he molested children. And then another thing I want you to pay attention to, is when you heard somebody say “this is a molester that wasn’t part of our organization” – I want you to listen for this: that known child molester was a member of the Jehovah’s Witness church, and attended that church with his victims. So listen for that as well.
Ok, we’re going to get into the details of what happened, and I need to give you just a little quick background about who the Jehovah’s Witnesses are. We don’t cover everything about them, just what’s important. Alright- So some of you noticed I have a typo here. First of all, the Jehovah’s Witnesses are a worldwide global religion. They have eight and a half million followers worldwide. They have a hundred twenty thousand churches. And the organization is run by people who are called “elders” – real important term, you’re going to hear a lot of talk about that, and we’ll talk about who the elders are, and what they do. Here’s what the most important thing you need to know about elders is: Elders are clergy. That’s the most important thing you need to know. And we’re going to be talking about elders; we’re going to talk about the law that applies to clergy, and the thing you need to know is that elders are clergy.
Ok, let’s shift gears, and talk about who are the defendants in this case. Right. You say hang on Neil, I thought we were talking about the Jehovah’s Witnesses, and now you’ve got some different names up here. Let me explain why this is the case. There are three defendants, and I’m going to walk you through who they are and tell you why they are defendants.
The first one is Watchtower Bible and Tract Society of New York Incorporated – that is their full name and it is a mouthful. So everybody abbreviates that they are Watchtower, or Watchtower New York. So when you hear that term, I want you to know we’re talking about one of the defendants. OK, the next one, and you already heard Mrs. DeSoto mention this, is a defendant called the Christian Congregation of Jehovah’s Witnesses. Another mouthful, and so we abbreviate that as CCJW. When you hear talk about CCJW, that’s another defendant. And the last one is Thompson Falls Congregation, that one’s easy to understand, that’s the local church, here in Thompson Falls, the local Jehovah’s Witness church.
Ok, so you’re next question is, Hey Neil, why are you talking about the corporations when this is about the Jehovah’s Witnesses. It’s a good question. You see, the Jehovah’s Witnesses are a big organization, and they have office building headquarters in New York. The evidence will show they have dormitories where they house their elders and feed them and provide them for all their needs. They have to be able to enter into contracts, they have to be able to open bank accounts, and to do that, they had to set up these legal corporations – and that’s their choice. That’s how they choose to run their religion, through these corporations, and that’s why these corporations are defendants. And you’re going to hear, and I’m going to show you and outline, and explain to you how these two corporations, Watchtower and CCJW, and I want you to hear this: These two specifically knew about Max Reyes, right here in Thompson Falls, what he was doing, and who he had been with.
These corporations, all the way in New York, had the exact details, the evidence will show, of what was happening in Thompson Falls; who the victims were. And the evidence is going to show that there were elders in these corporations that knew these things.
Ok, that’s who the defendants are. Now I need to just very briefly talk to you about some important beliefs that the Jehovah’s Witnesses have. Now remember, people can have beliefs, but this case is about the actions they took, the decisions they made, and their failure to follow the law. Two important beliefs you need to know about, of the Jehovah’s Witnesses, first one you need to know about is called the two witness rule. The two witness rule is a belief that they have turned into a policy, and it is their belief that their church can take no action against a member based upon the testimony of one witness. You gotta have two.
I’m bringing this up to you now because the evidence is going to show they applied that rule even in an instance of child sex abuse. When one child is coming forward saying “I’m a victim, please help me” – the two witness rule says “sorry – you’re only one witness.” That’s why I bring that up, so listen for it.
The other important belief that you need to know about is that elders – they keep secrets. They keep secrets, even when the information they know is about a known child molester. So as we go through this case, you’re going to hear, and I’m going to walk you through how this happened, how there is a policy that comes down all the way to the elders right here in Thompson Falls, and it says: You know about child abuse, the very first thing you do – you call the legal department. That’s the first thing you do. And the legal department up in New York, it’s going to tell you what to do. And if the legal department tells you you don’t have to report – you better keep it a secret.
“The other important belief that you need to know about is that elders – they keep secrets. They keep secrets, even when the information they know is about a known child molester.” -Neil Smith, attorney for the plaintiffs
And that is their policy that elders keep secret. So listen for that as we go through it. We don’t have to get into all their beliefs – those are the two important ones to know about. Okay – now: I want to get into the exact details of the facts of this case, so if you have an outline and an understanding as we go through the witnesses, and to do that the first thing I need to do is tell you who some people are. Don’t be overwhelmed by this, okay – don’t feel like you need to memorize it,
This is a board we’re going to use throughout the trial You’ll always be able to look back on and and go “Oh I forgot who Joni is, I forgot who Max is – you’ll be able to look at this board…
Ok, this is a family tree. And I’m laying this out so when we talk about these names, you understand the family structure. At the top we’ve got Joni and Peter Sr, a married couple. There’s three layers, so we’re going to talk about them as being the grandparents. They had three children, Ivy, Holly, and Peter Jr…
The third level is the grandchildren, and that’s where we have Lexi. So this is a family unit over here – grandparents, children, and grandchildren. Over here to the side is Max. He is the known child molester. Why do I have him to the side connected with the dotted line? Joni and Peter divorced. Joni remarried Max. And Max attended the Jehovah’s Witness church with his children and grandchildren. OK – so that’s the family structure that some of the names- don’t worry, every time we come back to these folks, we’re going to put this chart up so that you can remember where everybody is.
Here in green, are some of the victims. When I say victims, it’s the people that Max sexually abused. We’ve got Holly- Max sexually abused her. Jehovah’s Witnesses knew about it. Max sexually abused Peter Jr. He’s not a plaintiff in this case, but he was a victim. You’ll hear evidence the church knew that Max sexually abused him. Then we have Lexi – I introduced you to her today, she’s sitting over here – she was a victim that Max sexually abused.
So, that is the, kind of the background, who we’re talking about, and you know what – I’m going to keep that one up there so as I walk through that, this, you can remember who it is.
All right- now – Neil has been saying that the church knew that Max Reyes was sexually abusing [kids]. They knew because twice- twice they were notified. We’re going to talk about the two times they were notified. saying that
One time they were notified was in 1998. Alright, so in your mind, put it in those compartments – we’re going to talk about the 1998 report; we’re going to talk about the 2004. Those are the two times – alright. As we go through those, let me start by talking about – first- about when and how they learned Max Reyes was a child abuser, in 2004. Start down here at the bottom. This is one of the times they were notified, you start down here at the bottom with Peter.
First thing that happened, you’re going to hear evidence, is that Peter went to elders at the Thompson Falls church, and told them “I’m being sexually abused- I’ve been sexually abused by Max Reyes.” But remember, Jehovah’s Witnesses have the two witness rule, Peter’s just one guy. Peter says – you know what? Holly – that’s his sister over here – one of the plaintiffs in the courtroom, Holly can be a second witness, she can back this up.
And you’re going to see this board when I walk through this with people involved – they’re going to confirm this. The Thompson Falls Elders, after they heard from Peter, they reach out to Holly, they place a phone call to Holly. And Holly tells them there’s another person Max Reyes, a member at your church, sexually abused me. Not only did she tell them that, she puts it in writing. And I think, you’re going to have a chance, during this trial, to see that letter.
Alright, so now we’ve got two people that have notified the elders in the local church. And this is very, very important right here, it’s over here in red, and I want you to pay very close attention to what happens here. And the reason I want you to pay close attention is you’re going to hear a bunch of talk during this trial from the defendants about confidentiality.
After Peter and Holly tell the elders what happened, the elders go to the child abuser. They go to Max Reyes. And they tell him what the kids have said. They alert him, they tip him off, they share that information. That’s really important, because they don’t keep the information confidential – they go tell somebody else. It’s also important because Max admits to the elders that he’s a child molester. Keep in mind why I’m telling you this. I’m telling you this because we’re talking about a statute that says clergy shall report abuse. Alright so if we go through this, listen to all the times that clergy know about this. Alright, so we’ve got elders at the local Thompson Falls church that have heard these reports from two victims, Peter and Holly. In 2004 they have an admission from Max. What did I tell you is the very first thing they are taught to do? Call the legal department. And that’s what they do.
They place a call to the legal department. Now, when I say the legal department, I’m not talking about calling the law firm, my firm, or a lawyer here in Thompson Falls for advice. They call the in-house lawyers at Watchtower. Watchtower is their national organization. It’s the people that control the elders and give them their instructions, tell them what to do, control whether they have their position. It is required that the elders do what the legal department says to do.
And the evidence you will hear in this case is that the legal department says “You don’t have to report.” Not only do you not have to report, remember we’ve got our secrecy policy, so if you don’t have to report, you keep it quiet. That’s what the elders do. And they then are instructed to document what they know with their administrative offices over here at the other defendant, CCJW.
So you’re going to hear witnesses talk about witnesses calling watchtower and being told not to report. And you’re going to see, I think, some of the documents that goes to the other defendant, a defendant run by elders, where they document what they know and when they know it.
Through this lawsuit, we’ve been able to obtain some of the defendants’ secret documents, and I think you’ll have a chance to see those as evidence in this case. And as you look at those documents, these are the things I want you to watch for, as you see them. I want you to watch for, does it have the identity of a child molester? Does it have dates? Does it have details about what the guy did? And I think you’ll see that they have that information. Now, this is what happened in 2004. We all know what somebody is supposed to do next. With a law without a law, what do you do? You know, you’ve got a known child molester – you report him. You report him to the authorities so you can prevent other kids from being sexually abused by him.
But that is not what they did. Instead, these three defendants chose, the evidence will show, they made a conscious decision that they were not going to report him. They made a conscious decision to not follow the law. Now, if you heard, during the court’s instructions, one of the instructions that he gave you was that the court has already ruled on 2004. He instructed you during those instructions that the defendants violated the law, and they are liable.
You’ll be asked to decide what damages they caused, by failing to report this guy and for choosing not to follow the law. That is 2004. Ok – talking about two elements…
Of course, the defendants dispute what they knew, and when they knew. And you’re also going to hear about a 98 report, In 1998 the evidence will show Holly, she was 12 years old at the time. She went to elders at the local church, the local Thompson Falls church, and she told them that Max was sexually abusing her, but she’s just one witness. And so the church took no action, and of course they now say that that never happened.
The reason I put this up here is you’re going to hear that in 1998, CCJW over here did not exist. That’s why we break these into 2004 which the court has already ruled on, and you’ll just be deciding damages, and we talk about 1998 separately, because in 1998, you only have Watchtower. And what the evidence will show is that Watchtower sent the policies to the elders in Thompson Falls, that told them what they had to do, and they had the ability to kick these elders out if they didn’t follow their rules. Ok, And I put this up here because these elders in Thompson Falls were the people that were the agents, the evidence will show, for Watchtower.
That is the 1998 report. Let’s tie this all together and put it in a big picture real fast with our timeline. This is a timeline that begins in 1994, and it goes to 2007. Here’s what I’m showing to you on this timeline. On this timeline, you have first the window of time when Holly was sexually abused. She is sexually abused from 1994 until 1999, that is from the time when she is aged 15, I’m sorry, aged 10 until 15. Her abuse involved every kind of touching, and penetration you can imagine. It occurred on a regular basis. It was intercourse, it was oral sex, it was fondling, from the time she was aged 10 until the time she was aged 15.
The reason I have this up here is so that you can see that during the time that Max Reyes is sexually abusing her, that is when she made the 1998 report. That’s when it occurred.
Over here, between 2002 and 2007, we have the window of time when Lexi is being abused – that’s our other plaintiff. This is from the time she is aged 6 until age 11. Here’s how she was sexually abused.
Max Reyes fondled her, he forced Lexi to fondle him, and to pleasure him. She’ll give you the details of it. The reason this is up here, report #2 happened while Lexi was being abused. The 2004 report happened during that window of time. And the court has ruled the defendants violated the law right here, and you’ll be asked ‘what damages occurred after, and as a result of them violating the law?’
I point all this out to you because the law is very clear on what clergy members must do when they know a child has been sexually abused. But this law is only enforced through a trial like this, by a jury like you. That law that you’re going to hear about, it has to apply equally to all religions. And it must protect all children from known child molesters.
Thank you your honor.”
[Following opening arguments by plaintiff’s attorney Neil Smith, Watchtower attorney Joel Taylor addresses the jury in defense of Watchtower and the Christian Congregation of Jehovah’s Witnesses]
The Defense Opens
Attorney for the Defense, Joel Taylor:
“Ladies and gentlemen of the jury, my name is Joel Taylor. I have been in the courtroom for voir dire, sitting alongside Katie, but I have not yet addressed you. So let me first begin by saying thank you, thank you very much for taking this responsibility to be jurors so seriously. And thank you for having the wherewithal to hear these serious allegations. Now, I just want to express my appreciation for your sacrifice, but also describe a little bit to you who the defendants are in this case. Now, I don’t have a lot of charts, but I am going to use this whiteboard, and hopefully between the whiteboard and the evidence, you won’t need a fancy chart. Ok? And so first let me talk to you about the Thompson Falls Congregation.
The Thompson Falls Congregation was established in the 1950s, and in fact we see some of the members here right now in this courtroom. These are regular Montana folks, they work in the mill, some of them are loggers, and some of them do home repair, some are carpenters, and they’re trying to care for their families, and they decide that they want to draw close to God, and they accept the faith known as Jehovah’s Witnesses. And then they formed this congregation, and they fellowship and worship together.
Now, I don’t have a lot of charts, but I am going to use this whiteboard, and hopefully between the whiteboard and the evidence, you won’t need a fancy chart. – Watchtower Attorney Joel Taylor
Now one of the hallmarks of what the Thompson Falls congregation does is that they go door to door. And they knock on people’s doors, they knock on may of your doors, you know, sometimes it’s at an inconvenient time, but they do it only because they love you. And they do it because they believe that salvation is through Jesus Christ. And they want to tell other people about it. Many of you are bible readers, and you know that when Jesus was on the earth, that’s what he did. He talked to people who were not of his faith, about his own faith. And that’s what Jehovah’s Witnesses here in the Thompson Falls Congregation endeavor to do. They come from T Falls, Plains, they also come from Trout Creek, and Hot Springs.
Presently as I mentioned, the congregation has about 70 members. Now in addition to the congregation, you’ve heard about two corporations. One of them is called Watchtower, and the other is called Christian Congregation of Jehovah’s Witnesses, or CCJW. Those corporations assist the faith of Jehovah’s Witnesses. And so, just like some of you might be Pentecostal, or otherwise you might be Baptist, you might be Catholic, so Jehovah’s Witnesses is a faith, but then there are corporations that assist the faith. And those two corporations, Watchtower and CCJW do that.
CCJW did not exist prior to 2001, but today CCJW is primarily used as a non-profit corporation that communicates with congregations. Watchtower is primarily the owner of property, and is also a printer. That’s probably why you’ve seen those journals that the friends here from the Thompson Falls congregation are often putting out and asking you if you’d like to read them. So those are just a few of the defendants, and a little bit about them. I should tell you this though, that as with most religions, the structure of many religions is confusing. And so, throughout our conversation and throughout this trial, you may hear terms that you don’t understand, and I’m going to do my best to make sure that I explain those religious terms to you.
In fact, there may be occasions even when counsel for the plaintiff uses a term incorrectly. And you may hear me object. But that’s only to make sure that we identify which victim that we’re talking about. You may even hear from the witnesses, some of whom are Jehovah’s Witnesses, and they may confuse which corporation…sometimes these things are confusing, but ultimately at the end of the day, you’re going to know who did what, and when.
Before we go any further, I think it’s important that we acknowledge the harm that the two plaintiffs have suffered. It is beyond question that child abuse is an abomination. It’s beyond question. It’s a serious and gross sin, against God, and against the victims. There’s no question about that. That is a bible teaching. While we acknowledge the heinousness of the sin, Thompson Falls, Watchtower, CCJW, deny responsibility.
And as we go throughout this trial, you’re going to see that the responsibility really does lie, not with these individuals. So what are we asking of you jurors over the next two or three days? We’re simply asking, not for the benefit of the doubt, My clients, they don’t need the benefit…of a doubt. They just ask that you reserve judgment until you’ve heard the entire story.
Sometimes when we hear stories, for example, you might hear a story that begins “Once upon a time…” And right away your mind can take you to the end, and you say “well, they lived happily ever after.” Well, this trial is not really like a fairy tale. It’s more like a complex novel. It’s going to take a number of turns and twists, and all we ask is that you reserve judgment until you’ve heard all of the evidence. And then at that point, the judge will charge you as to the law, and you will be able to… make a decision.
And that’s in line with something the Bible says. In the book of Proverbs, the Bible says that “The first to state his case seems right, until the other party comes and cross-examines him.” So you need to hear the whole truth. And unfortunately in that opening, you did not hear the whole truth. And as you listen to the plaintiffs, although they’ve been injured, you’re not going to hear the whole truth. What you’re going to hear is embellishing around the edges. And it may even go to the point of outright spin. And you’re going to hear facts taken out of context You’re going to hear memories that were not what it were, what they were, when they occurred. And you should reject it.
You know, today there’s a lot of misinformation out there. If you watch the news media, they take one fact, and depending on their political leaning they take that fact and they change it. Some people refer to that as fake news. We don’t listen to fake news when it comes on the television, and we ought not listen to it in this courtroom…
And you should hear the whole story before you make any decision. In fact, sometimes people can just exaggerate because of the passage of time. For example, maybe you’ve been fishing down in the reservoir, right – and you go down fishing in the reservoir with your buddies, you catch a ten-pound pike. And then five years later that ten-pound pike is now 20 pounds. Ten years later that pike is now 30 pounds. But lo and behold, someone says, “you know I have a photograph of when we went fishing.” And when you compare the photograph to the story, you realize that the person, their memory has been affected by the passage of time. And in this case, we have documents, we have evidence to show that memories have been affected by the passage of time.
For example, Let’s go back to the chart they talked about – 1998. The weight of the testimonial evidence will show that the meeting in 1998 didn’t occur. Holly claims that in 1998, she went to Mr. Herberger’s home, to complain about sexual abuse at the hands of her stepfather. That’s what she claims. She says that when she went to Don Herberger’s house in 1998, she went to him as an elder, in the summer of 1998, and she also claims that she took her sister Ivy with her as well. She claims that she took her younger brother Peter as well. She also claims in her testimony that her aunt Iris drove her over to Don Herberger’s house.
“You know, today there’s a lot of misinformation out there. If you watch the news media, they take one fact, and depending on their political leaning they take that fact and they change it. Some people refer to that as fake news. We don’t listen to fake news when it comes on the television, and we ought not listen to it in this courtroom…” – Watchtower attorney Joel Taylor
So now, let’s unpack this 98 meeting. Here are the problems with the 98 meeting. In the summer of 1998, Mr. Herberger was not an elder in the faith of Jehovah’s Witnesses. He wasn’t. He just wasn’t an elder. What is more, you’re going to hear from Peter, Holly’s sister, he’s going to say he never went over there. What is more, You’re going to hear from Iris, and Iris is going to say that never happened. They’re going to say that. Now in 1998, Holly alleges that after going over Don Herberger’s house, he took her to meet with two elders. And then the three of them met at the Kingdom Hall after one of the meetings. You’re going to hear the congregation testify that that meeting never occurred, and that no one ever met with Holly.
They’re also going to testify that their church practice would have been to make a notation of any meeting involving serious sin, and that there is no documentary evidence. You’re also going to hear the representative for Watchtower testify that in 1998, if an allegation of abuse had come up, they would have called the legal department right away. And that the legal department has no records related to any call from 1998. And that’s because…the 1998 meeting never happened.
And of course, CCJW could not have participated in the 1998 meeting – it didn’t exist until 2001. Now, let’s talk about 2004. They are correct, the elders were alerted to a serious sin in the congregation. In 2004, Peter came forward to the elders. At the time, and you did not hear this in the opening, at the time, Peter was 17 ½ years old when he came to the elders in 2004. And he told the elders in a confidential setting, that he will testify himself, that he intended the communication to be confidential. That his stepfather, Max, had abused him four and a half years earlier. That’s what his testimony will be.
See, we don’t want you to operate under the impression that some little children came to the elders, and they were told about the abuse and the elders looked the other way. No, no – Max was 17 ½, I’m sorry, Peter was 17 ½ when he came to the elders. He’s going to tell you that he wanted elders to handle the sin, that’s what he wanted. But child abuse is unique, and I’ll explain it to you this way.
(Joel Taylor writes on whiteboard)
Unlike some sins that happened, and we’ve all made mistakes, child abuse is a sin and a crime. It’s both. It’s both a sin and a crime.
(Taylor continues to write on whiteboard)
And this is what the plaintiffs will confuse repeatedly, and they’re not going to want you to understand this, but as it relates to the crime, Jehovah’s Witnesses follow the law. As it relates to the sin, they follow the bible. Now some sin is not a crime. For example, you’re drinking in your home to an excess, and you get drunk a lot, and it’s always in the privacy of your home, why it’s a sin, you just follow the Bible, elders might give you some scriptural guidance and counsel. But other sins are both sins and crime. And when Jehovah’s Witnesses deal with child abuse, they follow the law. So when Peter comes forward in 2004, the elders contact the legal department.
You have to ask yourself, why would they contact the legal department? Well, they contact the legal department because they want legal direction. These reporting laws are quite complex. And they change often. So there is one central location to call and ask and find out what my obligation is under the law. And so elders called the legal department, and they got direction on the law.
Now, it is true, it is true, that the judge has ruled that the exception does not apply. But this explains why the elders did what they did. And I’ll read to you the exception under Montana’s law. You might have noticed a chart that had Montana’s law – well it did not include the exception. This is the actual language of the exception. “A member of the clergy or a priest is not required to make a report under this section if the communication is required to be confidential by canon law, church doctrine, or established church practices. Now we all have our own individual beliefs what should happen when there’s an allegation of child abuse. We might feel, “well look- report everything.”
Well honestly, that is an oversimplification of a very complex problem. One, not every victim wants it reported, because victims are concerned about being re-traumatized by a criminal justice system that at times doesn’t even believe them. And so, you can over-simplify and say “We must report.” But I tell you, anyone who says that has never spoken to a victim. Because victims are individuals, they all have their own feelings on the matter. And so, here’s what happens in the faith of Jehovah’s Witnesses: If the law says report, Jehovah’s Witnesses report. In the absence of a law that says report, Jehovah’s Witnesses follow the Bible. And the Bible says that parents have the right to choose what’s in the best interests of their children. Parents have that right.
Well at 17 ½, Peter was already capable of determining what was in his best interests. After he made his report in 2004 to the elders, he moved out. In fact, he moved into the home of another member of the congregation. And then about a couple months later, he moved in with his sister Ivy. That’s what happened in 2004. When that occurred in 2004, there were no children in the home. It was Max and his wife Joni. Now in addition, in connection with this 2004 meeting, contact was made with Holly. Indeed it was. And in the faith of Jehovah’s Witnesses, it differs somewhat from the Catholic model. The Catholic model, there’s a priest and a penitent. But in the faith of Jehovah’s Witnesses, we have a communal approach to handling serious sin.
And what do I mean by ‘communal approach’? Well the Bible says that in the multitude of counselors there is wisdom. And Jehovah’s Witnesses don’t have a paid clergy. So Don has a regular job. And he volunteers as an elder for four or five hours of each week. Don has a secular job. The other elders in the congregation have secular jobs. They are not paid clergy. And so, we make sure that in the multitude of counselors there is wisdom, so that we bring at least three other elders together to make sure that they handle the serious wrongdoing in the congregation properly. And so, when we do that process, it’s considered confidential. Except, if the law requires a report. If the law requires a report, we report. But in the absence of a directive saying report, we defer to parents and victims to know what’s in their best interests.
We do not try to insert ourselves into their decisions. We respect their individual right to choose. It’s not a policy of secrecy. It’s about respect, and understanding that not all victims are the same.
Now, interestingly, you’ve heard testimony today that when Holly came forward in 2004. It was because she wanted it reported. Well, you know, interestingly, the elders asked Holly to write a letter so that they could confront Max with those allegations, with a view to removing his membership in the congregation, because he had committed serious sin. And we have the letter, and I’ll show you the letter.
(Neil objects, discusses whether or not that letter has been admitted)
Joel Taylor: This is not evidence
Judge: discusses contents …Do you anticipate objections?
Joel Taylor: There was no objection on the uh…
Neil: I have no objection, the jury’s seen it now
Judge: As long as you’re not going to oppose it…
Joel Taylor continues:
“And so this is the letter that Holly wrote to the congregation in 2004. And it speaks to this issue of whether or not the 98 meeting actually occurred. So in 2004, obviously at this point, you weren’t told this, but in 2004, Holly was 20 years old. And she was living in Nebraska when it came to the elders’ attention. So Peter was 17 ½ moving out, Holly was 20 years old. Now Peter said, when he came forward, that the abuse had happened four or five years ago. And Holly admits that her abuse that happened ended in the 90s. And so this is 2004. She addresses the letter to the body of elders in the Thompson Falls congregation. She was asked by Don Herberger to write the letter. He called her in Nebraska and asked her to write the letter because they were evaluating Max’s membership in the congregation. They were doing so in a confidential setting.
In the faith of Jehovah’s Witnesses, we hear from the accused, we hear from the accusers, and any eyewitnesses. And those communications are established church practices that we maintain confidentiality on, unless, unless, the law says report. Otherwise, we defer to the parents. Now look at this letter, it says: “As you are aware, I have recently disclosed information regarding the sexual abuse received from my stepfather Max.”
“Recently disclosed” – see, when she wrote this in 2004, the fish was this big. (Shows hands)
When she filed this lawsuit, the fish is now this big (shows hands spread wide)
She’s saying, she’s going to tell you now that when she says she recently disclosed, she meant 1998. Now, all it takes is the smell test. She says ‘I have recently disclosed that Max was abusing me.’ Going further, she says it started when Max and Joni got married. That’s when it started, 1994. And he began to do these horrible things, she says, ‘being as I was too embarrassed to tell anyone…’ – too embarrassed to tell anyone; now you heard Mr. Smith say that in 1998 she was telling the elders. But her letter in 2004 says “being too embarrassed to tell anyone.”
So now, what you’re hearing today, is that pike weighs 60 pounds. But in 2004 when her memory was fresh, before she had any idea of suing, for money damages, it was ‘I have just disclosed this.” That’s what she says. And then she goes on to describe the abuse. She explains that “many times I have tried to tell my mother what was happening, but she was quick to defend him.”
In addition, on the last page, she says “I want to thank Jehovah’s shepherds” – shepherds is another term for elders – “I want to thank the elders for looking after his flock, and for taking care of this situation.” The language and tone of this letter is very different from the allegations you heard. In fact this letter was the first notice that the congregation in Thompson Falls had ever heard of Holly being abused by Max. Because the meeting in 1998 didn’t happen.
Now, why would you ask this question, why does there need to be a 1998 meeting? Here’s why: Because Holly’s abuse ended in 1999, and the law says, generally speaking, that you need to know something is wrong in order to prevent it. So, according to her testimony, the abuse ended in 1999. Now, if the congregation did not learn of it until 2004, which is what her own words suggest, then there was nothing the congregation had to do, could have done, or otherwise. So this 1998 meeting is for one singular purpose, one singular purpose.
(Joel Taylor writes on the whiteboard, 1998 at the top, 2004 in the middle, and $$ at the bottom. He circles 1998, then draws an arc from 1998 down to $$)
That’s what it’s for, that’s what it’s for. It didn’t happen, it didn’t happen. And her own words show evidence of that. Her own words. She never disclosed that abuse before, and at the time she disclosed it, she was already an adult, living in another state, and married. And, as a result, the elders handled Max, and removed him from the congregation, in accord with following the Bible, in connection with the sin.
So this case is not about Bible principles, or a two-witness rule, it had nothing to do with that. By the time the elders learned of the abuse, they had already been four years removed from Peter, and at least six years removed from Holly. Just keep those things in mind as you deliberate and as you hear evidence in this case.
Now, let’s talk a little bit about Alexis, or Lexi. Lexi’s here too, and Lexi is a victim. There’s no question about it, that Lexi’s step-grandfather took advantage of her. And her testimony is that from 2002 to 2007, her step-grandfather abused her. That’s her testimony. We have no reason to doubt the truthfulness of what she says. We don’t. But here’s what you were not told. According to Holly’s testimony, and according to Ivy’s testimony, Ivy has always known, since 1998, that Max attempted to fondle Alexis, or Holly rather.
So, now understand, Ivy is Alexis’ mother. And in 1998, she says “I knew that Max attempted to fondle my sister.” And in 2002, she lets Alexis go and visit with Max… Mom does that. And then, it continues from 2002, 2003, and then in 2004, Peter comes forward to the elders for the first time, and explains what happened. And Holly comes forward to the elders for the first time – and then Max is removed from the congregation. Peter goes to live with Ivy, tells her “Look- step dad abused me too!” Of course, Ivy is already aware that Holly has been abused by Max. And, Ivy continues to let Alexis go and visit with Max, for three more years. Three more years. Mom- fully aware that Max had a propensity to abuse children, and she just lets her go and visit with him. Ivy had the ability, Ivy had the knowledge, but more importantly, Ivy had the responsibility to Lexi to stop this abuse. All she had to do was not allow her to visit with her step-grandfather.
But she continued, and as a result, Ivy is responsible for the harm that came to Lexi. I think all of you would agree that parents have to care. And in this case, a parent did…not…care. And as a result, the child was harmed. Now, there’s much more to this story, that we will discuss. You’re going to hear testimony about the statute of limitations, and the judge is going to instruct you as to the law. And you’re going to become aware that sad and as tragic as it may be, Holly has always known about her abuse, and the connection between it and her emotional challenges.
You’re going to hear from Holly’s first husband; he’s going to testify…
Neil Smith: Your honor, object based on spousal privilege, her husband cannot testify
Judge: It does sound like privileged communication counsel
Joel Taylor: Your honor I’m sure he was in Nebraska, which law are we applying?
Judge: Well, we’re applying Montana evidence law
Joel Taylor: Your honor, he can testify as to what she told him before they were married
Judge: Let’s not get into..
Joel Taylor: You will hear evidence that Holly has always known about the connection between her abuse and her emotional damages… Even if you could come up with some type of claim at law, the statute of limitations has long since expired. So, pay attention for those details. Just allow yourself to hear the whole truth, and as you sit there right now,ask yourself, how much did I just learn that the plaintiffs did not tell me. Ask yourself that. Because you will hear more, because we’re determined to tell you the whole truth, the pike really was just ten pounds.
And then you will see, that neither Thompson Falls, Christian Congregation of Jehovah’s Witnesses, nor Watchtower, is liable for the injuries that these plaintiffs have sustained.”
By mid-afternoon, Monday, September 24th, the selection of a jury, along with opening statements from both sides was complete. The stage was set for the remainder of the trial. As the burden of evidence lay with the plaintiff, their witnesses were called first. The first witness to be called was Watchtower representative Doug Chappel.
When laws are broken, lives are broken.
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