Jehovah’s Witnesses elders refusing to testify in Murrieta molestation case

08:10 AM PST on Thursday, March 6, 2008

By TAMMY McCOY
The Press-Enterprise A legal battle is looming over Riverside County’s need to protect children, and people’s right to practice religion without government intrusion.

A prosecutor wants leaders of a Jehovah’s Witnesses congregation to testify about what a Murrieta man accused of molesting two girls told them. So far, two of the elders who oversee the Windsong Valley Congregation in Wildomar say that defendant Gilbert Simental’s statements are confidential and they do not want to testify.

Simental’s attorney Miles Clark says his client is innocent of the molestation charges.

Riverside County prosecutor Burke Strunsky says the elders should testify because they have already told others that Simental admitted to molesting two girls, and therefore confidentiality laws do not apply, court records state.

California law protects statements made to clergy members who are required by their faith’s practices to keep them secret.

Many of the nation’s courts have traditionally respected the rights of religious organizations to keep communications secret and beyond the reach of the law, said Colorado-based attorney L. Martin Nussbaum, partner in the firm Rothgerber Johnson & Lyons.

This protection encourages people to confide in their spiritual leaders, said Nussbaum, who is co-chairman of his firm’s Religious Institution Group.

Lawyers who bring suits against religious groups often say the law’s penitent-clergy privilege is used to conceal evidence in child sex-abuse cases.

“Religious organizations have used and abused the privilege to protect themselves from liability and responsibility,” said Minnesota-based attorney Jeff Anderson, who seeks redress for his clients.

Religious groups argue the privilege covers internal communications and communications with their members. But Anderson said the privilege actually applies when a person is seeking spiritual guidance or making a confession.

California’s courts are among a few in the nation to rule against religious leaders who refuse to release information under the penitent-clergy privilege, Nussbaum said.

In 2005, two California courts ruled that Jehovah’s Witnesses and the Roman Catholic archbishop of Los Angeles had to turn over information related to child sex-abuse claims. Both lost their argument that the information was protected by the penitent-clergy privilege.

Murrieta Case

Simental, 49, of Murrieta, is charged with molesting two of his daughter’s friends when they came to his home for sleepovers between July 2005 and July 2006, according to court papers.

The girls are sisters who were 9 and 10 at the time, according to the court records.

“My client is looking forward to going to court and clearing his name,” said Clark, Simental’s attorney. “He knows the allegations are false.”

Simental is free on $1 million bail following his arrest in 2006. Simental’s wife filed for legal separation from him in 2007.

A Murrieta school principal called police after the girls’ mother said she did not want Simental near her daughters, according to court records. One of Simental’s two daughters attends the same school, court records show.

Simental faces 30 years to life in prison if convicted. His trial has not begun. He is due in court Thursday.

Strunsky, the prosecutor, argues in court papers that Simental confessed in 2006 to the elders that he sexually abused the sisters.

That summer the girls’ parents went to congregation elders with the abuse claims and the elders oversaw a judicial committee, according to Strunsky. After the judicial committee, Elder Andrew Sinay talked about Simental’s admissions with the girls’ mother, according to Strunsky.

Sinay and Elder John Vaughn, who declined to comment for this story, argue in court papers that whatever was said during a judicial committee falls under the penitent-clergy privilege.

Denying the Jehovah’s Witnesses the benefits of the clergy-penitent privilege because their pastoral practices are different from other religions is unconstitutional, the elders argued in court papers.

The Jehovah’s Witnesses public information office in New York also declined to comment.

Ruling in Napa County

A Napa County court in 2005 rejected the same penitent-privilege argument in a civil lawsuit that accused the Jehovah’s Witnesses organization of covering up child sex-abuse allegations, according to court records posted online.

Statements by a man accused of child molestation to elders during a judicial committee are not covered by the penitent-clergy privilege, because the committee was not required by the organization’s practices to keep the statements a secret, according to Judge Raymond Guadagni’s decision.

The committee had to share information about potential child-molestation cases with its headquarters, the ruling said.

A nonpublic database is kept of Jehovah’s Witnesses who elders determine have committed acts of child molestation, said Bill Bowen, a vocal critic and former Jehovah’s Witnesses elder who was expelled in 2002.

Bowen said he was expelled for causing divisions after he brought to light victims of abuse who said they were silenced by the organization’s policy. He created Silentlambs, a Web site described as devoted to giving abuse survivors a voice.

Bowen said the Napa County case was one of nine settled in 2007.

A statement on the Jehovah’s Witnesses own Web site reads: “We do not condone or protect child molesters. … During the last 100 years, only eleven elders have been sued for child abuse in thirteen lawsuits filed in the United States.”

The Jehovah’s Witnesses and the Roman Catholic Church are not the only religious groups to be sued and accused of concealing child sexual abuse.

Similar lawsuits have been filed against other religious organizations across the nation.

Seattle-based attorney Timothy D. Kosnoff said he has handled 25 cases against The Church of Jesus Christ of Latter-day Saints for people seeking to recover damages for alleged abuse. He has 11 cases pending.

He said the legal battles being waged on the confidentiality privilege issue in child sex-abuse cases provide a sense of what matters to Americans.

“You can believe whatever you want but can’t use it to justify what is socially injurious behavior,” he said.

“If society believes it’s OK to have valuable evidence suppressed … if they are willing to have the truth-seeking process compromised … well, that is a judgment society has made.”

Nussbaum said ultimately these legal battles are over a person’s right to confide in a member of the clergy.

“It’s important for people to have folks they can speak to in an absolutely privileged manner so they can have the comfort of that counseling relationship,” he said. “That is at issue.”

Reach Tammy McCoy at 951-375-3729 or tmccoy@PE.com