Category: Sexual Misconduct

CHURCH LITIGATION DISCOVERY: CONFESSIONAL PRIVILEGE AND DAUBERT SCREENING

The most expensive components of a lawsuit revolve around the briefing phases necessitated by motions, discovery and discovery disputes, and trial. Discovery, which includes written questions under oath in the form of interrogatories and written depositions, actual forensic depositions before court reporters, and document searches and production. In church litigation, due to First Amendment issues briefing is usually the predominate expense. Also, the matters at issue are often non-economic, or economically fragile, and the parties quickly reach financial exhaustion. Financial exhaustion can cause abandonment of even a good claim and certainly makes non-economic claims, battles over principal, increasingly less attractive. One of the cost elements may be that the money spent on an expert witness may not result in useable testimony. FRCP Rule 702, sometimes referred to as a Daubert challenge because of the case from which the modern application of the rule for the most part emerged, requires a court to act as a gatekeeper to preclude “junk science” and opinions without material basis from contaminating the trial.

In Stevens v Brigham Young University – Idaho, Memorandum Decision and Order (D. Idaho, September 24, 2019), the federal trial court issued another decision regarding discovery disputes. In our May 4, 2019 post we reported the court’s decision regarding certain discovery disputes which included: whether the denomination and the church university had a common interest attorney client privilege, the university’s demand for a psychiatric examination of the Plaintiff because of her claim of emotional injury, and the university’s demand the Plaintiff waive the priest – penitent privilege. In May the court did not find evidence of a common interest, permitted the psychiatric examination, and refused to abate the priest – penitent privilege. In the September order, the court held the denomination, which was a third-party intervenor and not the defendant, was still subject to discovery. In a role reversal, instead of protecting her priest – penitent privilege, the Plaintiff waived it to force “an ecclesiastical leader” of the denomination to answer deposition questions but the denomination sought to impose it to bar the deposition. The Court held the priest – penitent privilege in this situation could only be imposed by the penitent, the Plaintiff, and not the church denomination. The Plaintiff demanded to know the precise amount of financial support the university received from the denomination, but this request was denied by the Court because the university and the denomination stipulated the denomination would pay any judgment against the university making precise answers irrelevant. However, the Court did order the denomination to produce copies of notices to church members of the denomination’s financial support to the university. Also, a friend and confidant of the Plaintiff was prepared for deposition by the denomination and university and they also apparently selected and paid for the friend’s lawyer. The Plaintiff sought discovery of the engagement of the lawyer and the source of funds to pay the lawyer, both of which the Court permitted for whatever impeachment value it might have. Plaintiff’s expert was also vetted by the Court and the expert’s testimony limited to his studies of the denomination’s hierarchal structure. The expert was prohibited from issuing an opinion in Court testimony that the hierarchal structure of the denomination, or its religious teachings, caused the Plaintiff to be sexually manipulated and abused by a university professor. Though this is our second report on this case, it does not appear to be at an end.

The lesson for denominations is that intervention in litigation in which a subordinate church or parachurch organization is a party may subject the denomination to the broader discovery permitted against parties. Also, the Court was applying the newest version of the federal priest – penitent privilege, which can only be asserted by the priest on behalf of the penitent but not on behalf of the priest. Further clash with certain denominations can be expected. The last lesson is about expensive experts in church litigation. Even if they are allowed to report on studies the expert conducted or wrote about the denominational structure or polity, making the inferential leap to causation of the specific harm alleged will likely be deemed speculative or not within the scope of the expert’s credentials.

FORSEEABILITY OF CHILD SEXUAL ABUSE

In the current environment, churches that retain employees or leaders based on a “benefit of the doubt” are taking a risk in child sexual abuse incidents. The church wants to believe the incident did not happen. The church wants to believe the employee or leader, sometimes a part of the church for many years, would never do or allow such a thing. Nevertheless, the risk is sufficiently threatening that “belief” is not enough. The church had better be demonstrably and reasonably certain.

In AH v Church of God in Christ, Inc., Slip Op. (Va. 2019), the trial court’s dismissal of the claim against the church was reversed for further proceedings likely to include discovery, other motions, and potentially trial. The Plaintiff alleged the church was aware of a prior allegation of child abuse but the mere awareness of a prior allegation was not enough to make the claim viable. What was enough, however, was the “special relationship” the Court held was alleged by Plaintiff between the church and the Plaintiff. The “special relationship” test is an exception to the rule that criminal conduct is unforeseeable and for which the employer cannot be held liable. However, if there is a “special relationship,” the employer is required to supervise the employee interaction more closely. The Plaintiff alleged the church “actively recruited” the child for the program, held out the employee as appropriate for the program, held out the employee as an agent (in this case a Deacon), and supervised the program. The age of the Plaintiff might also have meant the church took “custody” while the child was in the program.

Churches should suspend from duties with children or teens any leader or employee about which a child abuse or sexual misconduct has been alleged. They should be restricted from access and contact. The incident should be reported consistently with mandatory reporting statutes. The suspension can be lifted only when the investigation is terminated by law enforcement upon a finding the charge is not credible. If law enforcement refuses to make a final finding that can be documented, then the church should consider engaging counsel qualified to conduct such an investigation to document that it is not credible. If lack of credibility cannot be reasonably determined and documented, then the suspension should be made permanent or the person terminated. Rehabilitation can only be accomplished with the aid of outside medical professionals and rigorous internal scrutiny of both treatment the proof of repentance. Regardless of either, such a person must remain restricted from access permanently.