SAN FRANCISCO (CN) - A Bay Area Jehovah's Witnesses congregation and church leaders had no duty to warn members about a child molester in their midst but are liable for acts the man committed on a young girl during door-to-door ministry, a California appeals court ruled Monday.
A jury awarded Candace Conti $7 million in compensatory damages and $21 million in punitive damages after finding fellow congregant Jonathan Kendrick had molested her during church activities over a two-year period in the 1990s, beginning when she was just nine years old.
The verdict apportioned blame between Kendrick, Jehovah's Witnesses headquarters Watchtower Bible & Tract Society of New York and the North Fremont Congregation of Jehovah's Witnesses, where Conti and Kendrick attended.
Jurors also awarded Conti $21 million in punitive damages against Watchtower. Conti accepted a reduced punitive damages award of just over $8.6 million to avoid a new trial, receiving a total of nearly $11.5 million.
Watchtower and the congregation appealed, arguing that they had no duty to prevent Conti from being molested. For her part, Conti, now 29, argued that the congregation should have warned parishioners that Kendrick had already molested one child - a failure that led to the punitive damage award.
But a panel for the First Appellate Court found that the prior molestation alone did not call for the church to warn the entire congregation they had a child molester in their midst, particularly given the privilege of communications between clergy and churchgoer and the burden to churches everywhere.
"While it is readily foreseeable that someone who has molested a child may do so again, the burden the duty to warn would create and the adverse social consequences the duty would produce outweigh its imposition," Judge Peter Siggins wrote for the panel. "The burden would be considerable because the precedent could require a church to intervene whenever it has reason to believe that a congregation member is capable of doing harm, and the scope of that duty could not be limited with any precision."
He continued: "For example, would the duty to warn be triggered by an accusation, or only an admission, of misconduct? Would one warning be sufficient, or would continuous warnings be required to ensure that new congregation members are alerted to the danger? Child molestation is a particularly heinous evil, but which other potential harms would the church have a duty to avert? Would the duty be limited to crimes and, if so, which ones? Imposition of a duty to warn would also have detrimental social consequences. It would discourage wrongdoers from seeking potentially beneficial intervention, and contravene the public policy against disclosure of penitential communications. No moral blame can be cast on defendants for adhering to that public policy."
The panel also noted that trial court made a mistake by instructing the jury that the church and congregation had a duty to protect Conti from harm, calling the instruction "misleading to the extent it could be misunderstood to indicate that liability could be predicated on the failure to warn."
But both the congregation and Watchtower had an obligation to at least supervise Kendrick or limit his contact with children during door-to-door ministry - known as field service - both for Conti's sake and the safety of children in the neighborhoods he canvassed, the panel found.
"If Watchtower policy was to prevent a child molester from performing field service alone or with children, and even if that policy was communicated to the Fremont Congregation elders, substantial evidence was presented that the elders failed to see that the policy was carried out in Kendrick's case," Siggins wrote. "Conti and another congregant testified that Kendrick and Conti performed field service together on multiple occasions. Conti described how Kendrick would separate her from field service groups, take her to his home, molest her, and then take her back to Kingdom Hall or the service group. The jury could find from this evidence that the elders were negligent in failing to supervise Kendrick's field service."
The church and congregation leaders "had a duty to use reasonable care to restrict and supervise Kendrick's field service to prevent him from harming children in the community and in the congregation. Conti's testimony provided substantial evidence that defendants breached this duty," Siggins added, affirming the $2.8 million compensatory damages award.
Conti's attorney Rick Simons, of the firm Furtado Jaspovice & Simons, told Courthouse News that "good social policy" should require preventing child abuse before it happens.
"It's a public policy question as the court points out - what does the law cover as an obligation and what it does not," Simons said. "Our view is that we're better served as a society by having a duty to prevent child abuse before it occurs rather than pay money after. To us that's not a good social policy."
The attorney took issue with the court's reasoning that forcing churches to warn parishioners of a member's criminal acts will keep the member from the benefits of church.
"They want to encourage redemption," Simons said of the court. "As for Kendrick, the evidence shows he met and molested at least four girls and that's the primary benefit he got - more kids to molest. We don't think that's the right framework for analysis."
He noted that the jury came back 12-0 that the molestation had occurred.
A decision on whether to appeal to the state's high court has not yet been made, the attorney said.
Kendrick did not face prosecution for molesting Conti - "yet," Simons said - though he was convicted of molesting his 8-year-old step granddaughter in 2004.
He served seven months in prison for that crime.
Lawyers for the church did not immediately return a request for comment.
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